Thursday, May 27, 2010
Kristine Long, Pitt Law '11, traveled to Belgrade, Serbia, for a pre-moot prior to the Willem C. Vis International Commercial Arbitration Moot in Vienna, Austria...
During my first cab ride through the city, I was immediately exposed to Belgrade's city center and its unique history. Perhaps the cab driver knew that we were Americans and consequently gave us a scenic tour, but he drove through the most historically significant and awe-inspiring parts of the city. When driving or walking through Belgrade, one is constantly reminded of NATO's 1999 bombing of the city by the destroyed buildings interspersed among new construction. While I had read about the Kosovo conflict and the NATO bombings in the United States, it was entirely different to see the long-term consequences of the international community's response. While most people remember the conflict from past classes or news stories, it was quite evident that the Serbs confront daily reminders of their conflict with their neighbors.
Belgrade is interesting because of how it juxtaposes conflict with daily life. There are many parts of the city where one can forget that Belgrade was the site of protests and conflict only several years ago. However, the members of the Kosovo team, which traveled with our Pitt Law team, were sensitive to the continuously strained relationship between Serbia and Kosovo. Currently, the ICJ is deliberating as to whether Kosovo's declaration of independence is in compliance with international law, and it will render a highly anticipated decision by the end of 2010. While Kosovo and Serbia have the strongest interest in the decision, other countries have chosen sides because of the ICJ opinion's possible implications on international relations. Of particular interest is whether a ruling in Kosovo's favor will allow other contested territories to declare independence, as well.
While the ICJ opinion will have important implications for both Kosovars and Serbs, these groups face real issues outside the scope of the ICJ case. For instance, the Serbian government does not recognize Kosovar passports as valid travel documentation, so only half of Kosovo's team - those members with a second passport - were permitted to travel to Belgrade. This is but one example of the challenges Kosovars face in this region. While Kosovo's statehood is recognized by 65 other countries, until it is universally accepted, Kosovar citizens can and will continue to face discrimination.
The ICJ has an important role in determining Kosovo and Serbia's fate. However, as Kosovo's advocates have previously stated, the question before the ICJ is too narrow to reflect the full conflict between these two countries. While I supported Kosovo's statehood before traveling to Belgrade, my experience in Serbia solidified my belief that Kosovo should remain an independent state. In Kosovo's two years of independence, it has begun to rebuild its economy and government, in addition to asserting its independence in smaller ways. Kosovo's government has created a new flag, a new national anthem, and instilled ideas of nationalism and statehood in its citizens. However, Serbia's refusal to recognize Kosovar passports made me wonder how many laws and policies each country would need to change in order for the two countries to truly move forward.
From my observation, Belgrade can be part of this change, as it appears that some of its citizens have already moved on. Only a few years ago, Belgrade's streets were filled with protestors and anti-Kosovo propaganda, but the Belgrade I visited was peaceful and mostly accepting of the group of Kosovars and Americans traveling together. For example, the Belgrade faculty gracefully permitted the Kosovar team to participate in the pre-moot rounds in the interest of promoting international unity and competition. Although a small step toward permanent peace, granting Serbian and Kosovar students the opportunity to work together is instrumental in shaping their countries' future relationship. The participants in the pre-moot are their countries' future legal minds, and Belgrade was the perfect site for these young, bright scholars to begin to set their differences aside and learn to work together.
While the ICJ's final decision will inevitably have its supporters and detractors, it will allow the ICJ to solidify Kosovo's status. If the ICJ upholds Kosovo's declaration of independence, Kosovo and its citizens will be better able to address discrimination and assert those rights universal to all citizens. Finally, the ICJ's decision will bring closure to a conflict that has spanned many years and hopefully convince both populations to pursue a more harmonious future.
Photos: Kristine Long
Tuesday, May 25, 2010
M. Patrick Yingling, Pitt Law '11, recently studied at Bucerius Law School in Hamburg, Germany, and is currently studying at the University of Bologna in Italy...
In order to effectively deal with differing notions of privacy and free speech on an international level, it is necessary to understand why these differences exist. In the case of Europe and the United States, it may seem like a simple constitutional issue. The United States Constitution protects freedom of speech without explicitly providing for a countervailing right to privacy. In contrast, the European Convention on Human Rights (ECHR), in addition to protecting freedom of speech, specifically defines a right to privacy. Nonetheless, such a simplistic explanation only scratches the surface. In order to dig deeper, one must recognize a distinction between privacy from the government as opposed to privacy between citizens. Americans typically put a high value on privacy from the government. However, privacy between citizens requires privacy rights to be balanced against the freedom of speech, and in the United States, freedom of speech is king.
Some European courts have been willing to restrict freedom of speech when such speech impedes upon privacy. In doing so, they have passed judgment on the relevance of certain information to the public. In comparison, American courts have allowed private persons to make such decisions on an individual basis. This approach is related to the popular notion of protecting the "marketplace of ideas," a concept that stems from Justice Oliver Wendell Holmes Jr.'s dissenting opinion in Abrams v. United States, in which he stated that "the best test of truth is the power of the thought to get itself accepted in the competition of the market."
Swiss law provides a clear example of the transatlantic gap between European and American concepts of privacy and free speech. The Swiss Federal Constitution provides that the ECHR supersedes Swiss federal law and that Swiss courts must therefore obey the ECHR's explicit right to a private life (Art. 8), as well as the right to freedom of expression (Art. 10). These rights are often balanced against each other, and the Swiss courts have attempted to determine the exact point where one right ends and the other begins. The Swiss case of R. AG v. W. provides a good example. In R. AG v. W., an executive convicted of white-collar crimes filed an action for invasion of privacy against a publisher who had reported truthful facts about the executive's past conviction. The court found for the plaintiff and held that such information was irrelevant and no longer of public interest.
The American case of Cox Broadcasting Corp. v. Cohn exemplifies a different approach. In Cox, a news company published the name of a deceased rape victim in the course of covering the alleged rapist's trial. Publication of the victim's name was in contravention of Georgia law, and the victim's father brought suit for invasion of privacy. The United States Supreme Court ultimately held that the Georgia statute violated the First Amendment and that the defendant news company was not liable. Rather than evaluating the published information's relevance, the court established a precedent of presuming the relevance of all such information, provided that it was a matter of public record.
Until recently, these conflicting approaches have not posed problems for international harmony. Naturally, this has changed with the emergence of the internet. Strong privacy laws, such as those existing in Europe, are in danger of being compromised by international entities like Wikipedia and Google. These companies have the ability to disperse information around the world from an American jurisdiction that places a strong emphasis on the "marketplace of ideas." The dispute between Wikipedia and the two German ex-convicts is perhaps indicative of future clashes in this area of the law.
Google has addressed these differing concepts of privacy and free speech through self-regulatory measures that block users in a particular country from accessing websites that are illegal under local law. For example, because Holocaust denial is illegal in Germany, Google's search engine for Germany, Google.de, will not locate Holocaust-denial sites. However, Google's attempts to comply with local law are not always successful. Recently, three Google executives were criminally convicted in an Italian court for hosting a video that showed an autistic teenager being bullied. The Italian court convicted the executives despite the fact that Google attempted to comply with Italian law by removing the video within two hours of being notified of its existence.
Self-enforcement measures have not yet been applied to situations in which truthful, yet arguably irrelevant, online information constitutes an invasion of privacy. Even if self-enforcement were used in this way, it would be unrealistic to expect a small group of people to effectively balance privacy and free speech concerns for the entire world. For the sake of international harmony, we can hope that companies like Google and Wikipedia are able to devise policies that maintain respect for various international interests. Unfortunately, conflicting legal traditions and values are sure to present obstacles for any entity that attempts to accommodate these differing notions of privacy and free speech.
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Friday, May 21, 2010
Polly Chien, Pitt Law '12, writes about the rights of migrant workers in her home country of Taiwan...
This phenomenon is not confined to the United States. In Taiwan, there are approximately 360,000 migrant workers, of whom nearly 160,000 are domestic workers or caretakers. In addition, Taiwan has a robust guest worker program, in which foreign workers from other, typically less-developed countries, are sponsored by employers in Taiwan, and allowed to travel to the country and stay there for purposes of their pre-arranged employment. The workers are barred from the general benefits and protections of Taiwan's Labor Standard Act (LSA) and are also vulnerable to physical abuse and mistreatment from employers.
I first became aware of the troubles facing foreign and migrant workers in Taiwan in September of 2005, when a huge scandal was uncovered at the Kaohsiung Municipal Subway Construction Project. Nearly 1,700 migrant Thai workers rioted, attacking police and destroying property in protest against working conditions at the project. The workers' employer had allegedly struck two of the Thai laborers with electric clubs. The migrant workers also claimed that they were deprived of their basic rights, consistently abused, housed in a segregated camp at the construction site, and barred from contact with the local Taiwanese population. They claimed that they were forced to work 18-20 hours a day for a salary of about $300 a month.
I was fortunate to attend the Migrant Worker Rally on World Human Rights Day in 2008. The rally that year, organized around the theme of "No Slave Labor," was intended to draw attention to the poor working conditions and violations of basic rights at the Koahsiung Subway Construction Project. The parade eventually became a biennial demonstration seeking legislative change to combat the trafficking of illegal workers and to increase the protection of workers' rights under the Taiwanese guest worker program.
Guest worker programs are especially popular in developing, socially homogeneous, Asian and European countries that base their immigration policies on the principles of jus sanguinis. According to jus sanguinis, nationality is determined by ancestry rather than birthplace. In 1989, the Taiwanese government adopted a guest worker program modeled after Germany's that allows foreign nationals to work temporarily in Taiwan in an attempt to address the country's ongoing labor shortage. The program differentiates between unskilled laborers and white-collar professionals from Western countries, and many of the restrictions only apply to the unskilled migrant workers. For example, guest workers may stay in Taiwan for a maximum of six years, may not bring their families with them, and may not marry during their employment. Additionally, each laborer is required to undergo a complete physical health examination every six months.
The Council of Labor Affairs (CLA) is the agency responsible for enforcing the LSA, but has only limited power to regulate laborers and protect their rights. For example, the LSA allows migrant workers to bring claims against their employers for violating their basic rights. However, this protection is ineffective since the laborers cannot afford to bear the economic burden of a lawsuit. Rather than challenge their mistreatment, they are forced to return to their home countries and "voluntarily" end their employment in Taiwan. This unfortunate situation was somewhat ameliorated by a 2007 amendment to the country's Immigration Act, which allowed migrant workers to extend their residency status in Taiwan during the pendency of a lawsuit against an employer.
The theme of the most recent Migrant Worker Rally on December 13, 2009, was "The Robot Also Gets Tired." Friends currently employed with the International Workers Association (IWA) discussed the organization's plans for amending the LSA to better protect domestic workers' legal rights. In particular, the IWA is focused on ensuring workers' rights to rest and leisure. The group's planned amendment brought to mind interviews I conducted in 2005 with migrant domestic workers in Taiwan. Most of the interviewees were 20- to 30-year old women from the Philippines, Thailand, and Vietnam who cared for the elderly or sick as home nurses or at senior citizen homes, known as senior sanctuaries in Taiwan. The women who work at the senior sanctuaries are generally in a better position than the others because they are allowed rest breaks during their shifts and are able to spend time with friends on and off duty, among other benefits, due to their protection under the LSA. However, those working in individual homes are not as lucky, since the LSA does not protect migrant or guest workers employed in private homes.
My very first interview was with a woman named Alice (name changed). She was caring for a 72 year old man who had suffered numerous strokes and had a very bad temper. Since the man only slept four hours a day, Alice was required to work 20 hours a day, seven days a week, and was rarely allowed time off on the weekends. As a result, she was close to suffering a nervous breakdown as a result of her exhausting work situation. Her story was typical of the other home caretakers I interviewed.
In order to prevent the abuse of migrant home caretakers, the Taiwanese government has attempted to lessen demand for their employment by introducing legislation that provides national health care coverage to senior citizens. However, this coverage is not available to senior citizens who employ migrant domestic workers. The impact of this legislation is that workers in private homes are still not allowed breaks since the households have no temporary assistance during a migrant worker's absence. If the employer is unwilling or unable to allow the worker rest or time off, the worker is permanently on duty, and still outside the LSA's protections. This troubling development is in direct contravention of Article 24 of the Universal Declaration of Human rights, which guarantees workers' fundamental rights to rest and leisure. Without these rights, migrant workers have become isolated machines deprived of the freedom and opportunity to claim and exercise their rights.
Those who attended last year's Migrant Worker Rally are seeking additional protections for foreign and migrant workers. The rally's organizers and supporters want the government to loosen regulations on senior citizen health care in private homes in order to protect currently-employed migrant workers. Notably, many employers marched in the rally side-by-side with their employees to fight for workers' rights and to demand government protection of their fundamental freedoms. Through the efforts of the International Workers Association and the Migrant Worker Rallies, I believe that more Taiwanese people will become aware of migrant workers, their rights, and the troublesome issues that many of them currently face. Hopefully, Taiwanese citizens will then realize that these workers are indispensable to the national economy and deserve the protection of Taiwanese labor laws.
Photos courtesy of: Pei-Ran Syu
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Thursday, May 20, 2010
Kristine Long, Pitt Law '11, attended a lecture held by Vjosa Osmani, Pitt Law L.L.M '05 and advisor to the President of Kosovo on Legal and International Affairs...
Ms. Osmani's lecture was held in conjunction with the celebration of Kosovo's second year of independence. While many Kosovars see this as cause for celebration, there are significant legal issues accompanying Kosovo's independence. Within the international community, one of the most important questions is whether Kosovo's declaration of independence establishes a precedent for other contested territories. However, there are strong arguments that Kosovo's situation should be treated as sui generis (unique). For many years, Yugoslavia was defined by turmoil between its ethnic Serb and ethnic Albanian populations, culminating in state-sanctioned oppression of the Albanian population in Kosovo by Yugoslavian (later Serbian) President Slobodan Milosevic. It was only after significant international pressure that the International Criminal Tribunal for the Former Yugoslavia (ICTY) charged Milosevic and others with crimes against humanity.
While Kosovo is a new state, the international community has been involved in the Kosovo conflict since George Bush's secret Christmas Warning to Serbia in 1992, where Bush warned Milosevic that Serbian aggression in Kosovo would provoke an international response. When Serbia did not remove its troops from the Kosovo territory, NATO responded with an air campaign against the former Yugoslavia. Even after the NATO bombings, it became apparent during negotiations on Kosovo's status that Serbia was unwilling to cede control of the territory. At the same time, Kosovar Albanians were beginning to assert their rights independent of the international negotiations. Eventually, the UN passed Resolution 1244, which placed Kosovo under UN administration for an interim period. As peace talks continued, Finland's former president, Maarti Ahtisaari, drafted a settlement proposal between the leaders of Serbia and Kosovo, but after years of negotiations, it became clear in 2008 that independence was the most appropriate solution to the Kosovo conflict. While Ms. Osmani discussed Kosovo's long path to independence, I realized how little attention the media had given the conflict. For over a decade Kosovo's status had been indeterminate, but the majority of the audience seemed to be learning about Kosovo's history for the first time.
As Ms. Osmani noted in her opening, though, Kosovars faced numerous problems even after gaining independence. First, Kosovars had been largely denied educational and career opportunities during Milosevic's presidency. As a result, Kosovo had no economy, no rule of law, and no other governmental institutions. Second, most of Kosovo's population had been displaced during the war and had emigrated to other countries. Therefore, the daunting task of state-building fell upon a population composed primarily of younger Albanians, who through luck and hard work had obtained enough of an education to assist in the rebuilding process. Ms. Osmani, who became became a legal advisor to Kosovo's President at 23, is one such example.
Although 65 countries currently recognize Kosovo's statehood, Serbia has challenged the legality of Kosovo's declaration of independence and asked the International Court of Justice (ICJ) to render an advisory opinion on whether the "the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law." Ms. Osmani strongly believes that this question misleads the court. Due to its narrow drafting, the question fails to address the situation in Kosovo before and after the declaration's signing. As illustrated by the extensive negotiations in Rambouillet, France, the conflict between the two parties was irreconcilable. Further, the question also assumes a law prohibiting states from declaring independence - a law, which, as Ms. Osmani notes, does not exit. At the moment, the ICJ is currently deliberating the merits of Serbia's claim, but until it renders an opinion, Kosovo is a sovereign state with a firm belief in its legitimacy and compliance with international law.
Photos courtesy of: Evin Thana
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