Friday, July 30, 2010
Jonathan Cohen, Pitt Law '12, studied in Jerusalem as part of a program hosted by the Touro College Law Center and sponsored by Pitt's Center for International Legal Education. He writes about the differences between Israel and the United States in the areas of judicial appointments and judicial review...
In the United States, federal judges are appointed by the President, and many state and county judges gain their seats in competitive elections. However, Israel follows the example of many other countries and selects its judges by nomination. While Israel does not yet have a formal constitution, the principle of a strong independent judiciary is enshrined in the Basic Law: The Judiciary, which will most likely be included in a formal constitution. The Basic Law sets up a Judges' Election Committee (JEC) with nine members. The committee includes the President of the Supreme Court, two other Supreme Court Justices, the Minister of Justice, two members of the Knesset, and two members of the Israel Bar Association. Once a candidate has been nominated by the JEC, the candidate must then be approved by the Prime Minister. Like federal judges appointed under Article III of the US Constitution, Israeli judges have a lifetime appointment, subject to removal in limited circumstances. However, Israeli judges are subject to mandatory retirement at the age of 70.
While federal judges in the United States are generally given lifetime appointments after a nomination and confirmation process, the election of some judges at the county and state levels has been, and continues to be, controversial. This controversy has led to a long-standing debate in the United States about judicial selection procedures. Late last year, I reported [JURIST Report] for JURIST's Paper Chase service on how former Supreme Court Justice Sandra Day O'Connor and the Institute for the Advancement of the American Legal System (IAALS) encouraged states to move from direct judicial elections to a merit-based selection process. The switch to merit-based nominations is also backed by US Supreme Court Justice Ruth Bader Ginsburg, who lent her support to O'Connor's movement while delivering a speech [JURIST Report] to the National Association of Women Judges. The O'Connor Judicial Selection Initiative (OJSI) is concerned that "politics don't belong in the courtroom and justice should not be for sale."
There is not only a difference in the judicial selection process between Israel and the United States, but also in the operation of the highest courts. To bring a case before a court in the United States, a person must have standing, which is met by a showing of injury and causation. One must also appeal their case through a series of lower courts before even petitioning the Supreme Court.
In stark contrast to the American requirement of standing, Israeli law permits anyone to bring a challenge against almost any law. This was not always the case. Israel formerly required claimants to have standing in order to bring a case before the court, but then-Chief Justice Barak liberalized the requirement of standing in Israel in Ressler v. Minister of Defence [PDF], a landmark case which ruled that the "legal standing of a petitioner before the High Court will be recognised if he can show that there is a reasonable prospect that an interest of his (not necessarily amounting to a right) which may be shared by a great number of others, has been prejudiced." Former Chief Justice Aharon Barak clarified the Israeli view of standing in Iad Ashak Mahmud Marab et al. v. IDF Commander in the West Bank [PDF], which discussed detention policies in the occupied territories: "[U]nder our approach to the issue of standing, any person or organization interested in the fate of the detainee" has a right to file suit. "Indeed, the petition before us was submitted by, among others, seven associations or organizations that deal with human rights." The court also acts as the High Court of Justice, a court of first and last instance in suits against the government, allowing some claimants to file directly with the court.
Justice Barak also expanded the idea of which cases are justiciable in Israel. This doctrine of justiciability is more narrowly interpreted in the United States than in Israel. If a court, American or Israeli, decides that an issue is non-justiciable, it may refuse to hear a case on the basis that it cannot grant relief for the claim. One of the most common effects of this doctrine, especially in wartime, is to allow a court to evade an issue by declaring it to be a political question. When an American court invokes the political question doctrine, it refuses to hear a case because it believes that the Constitution has given decision-making power to another branch of government, that it does not have proper standards in place to decide the case, or that interference would otherwise be unwise.
However, under Justice Barak's expanded view of justiciability, the Supreme Court of Israel, sitting as the High Court of Justice, heard cases that would most likely not be heard under similar circumstances in the United States. One such example is the High Court of Justice's opinion in The Public Committee Against Torture In Israel v. The Government Of Israel [PDF], a case where the court had to decide on the legality of Israel's policy of targeted killings. After gathering intelligence on who was behind terrorist attacks, the Israeli military would use preventive strikes to eliminate those found responsible. Much to my surprise, the High Court actually heard and decided this case, something I couldn't imagine the Supreme Court of the United States doing. The US Supreme Court would likely hold that the non-governmental organizations bringing suit in Public Committee Against Torture in Israel lacked standing, not to mention that they would likely avoid addressing issues of specific military tactics. In this case, the High Court's decision constituted a severe limitation of what the military could do or how it could do it. Because Barak liberalized the doctrines of standing and justiciability in Israel, he has been criticized for his "judicial activism" by University of Chicago Law School Lecturer and Seventh Circuit Judge Richard Posner in an article in the New Republic.
While Justice Barak and his views are not commonly known in the United States, they have been the center of some controversy in the country. Supreme Court nominee Elena Kagan has called Barak her "judicial hero," a move that has led critics to label her as a judicial activist. While opponents of judicial elections in the United States often worry about judicial activism, Barak's example seems to show that judges with lifetime appointments can be activists as well.
Photos: Jonathan Cohen
Wednesday, July 21, 2010
Megan McKee, Pitt Law '12, is currently an intern with Montreal's Social Justice Committee (SJC). She writes about the SJC's advocacy for corporate accountability in the extractive industries...
As July 22 marks the second annual Global Day of Action Against Open Pit Mining, and FAO Montreal has organized a march to commemorate the day, it seems appropriate to take a closer look at the Canadian mining industry and its actions abroad. Canada is home to over 75 percent of the world's largest mining and extraction companies. However, the existing mechanisms to ensure that these corporations, which receive support from the Government of Canada, act in compliance with international environmental best practices and with Canada's commitments to human rights, are toothless at best and non-existent at worse.
Starting in 2006, the Canadian government held a series of National Roundtables on Corporate Social Responsibility (CSR). The roundtables concluded with the release of a final report [PDF] authored by a multi-stakeholder Advisory Group, which included members from industry, civil society, academia, labor, and the responsible investment sector. In essence the report called for the development of a Canadian CSR framework. The Advisory Group urged the Government of Canada to work with key stakeholders to adopt a set of CSR standards that Canadian extractive companies operating abroad would be expected to abide by, and that would be reinforced by appropriate reporting, compliance, and other mechanisms.
In March of 2009, the government released its official response [PDF] to the roundtable report, and it included no effective complaints mechanism and no mechanism to sanction companies in non-compliance with agreed upon guidelines. Rather, the government's CSR strategy called for the creation of a CSR Counsellor, a position that suffers from serious limitations. Namely, it lacks enforcement powers and may only investigate complaints with the express consent of corporations. In short, the government failed to effectively take into account the key recommendations of the roundtable report, and did little more than endorse current CSR standards. The government's CSR strategy would do little more than create a toothless administrative mechanism to generate a façade of accountability.
Following the government's failure to seriously respond to the roundtable report, legislation in the form of a private member's bill became the only viable means by which to regulate Canadian corporations engaged in mining, oil or gas activities abroad.
Liberal MP John McKay introduced private member's Bill C-300 to Parliament in February of 2009. C-300 seeks to implement a number of the key recommendations from the roundtable report. Although the bill pre-dates the government's official response to the roundtables, it largely picks up the slack where the government's response fell short.
In summary, if Bill C-300 is passed it would:
The bill has passed its first reading in the House of Commons. In the second reading, the House referred the bill to the Standing Committee on Foreign Affairs and International Development, which studied the bill and heard testimony from public witnesses during the spring and early summer. When the House of Commons resumes sitting on 20 September, one of the first items on the agenda will be to debate and consider the bill as amended, and it is anticipated that the third reading vote will take place sometime in October. If the bill passes through the third reading, it will be sent to the Senate for consideration, and, if passed by the Senate, it will require Royal Assent (presentment to the Governor General who may assent to the bill in the Queen's name, withhold assent, or reserve assent) to become law.
Although this legislation proposes only a modest mechanism by which corporations receiving support from the Government of Canada can be held accountable for their practices overseas, it has stirred up a great deal of controversy. The mining sector, Canada Pension Plan, Export Development Canada (both heavy investors in the extractive industry), and the Conservative Party oppose the bill. On the other hand, the bill has received support from a wide range of civil society groups, the opposition Liberal Party, the NDP, and the Bloc Quebecois [French]. While the attention that C-300 has received probably far outweighs its potential impact, I believe that Canadians would like to see their politicians choose to hold government-supported corporations to the international environmental and human rights standards Canada claims to support. And, as a Canadian permanent resident, I would like to see Parliament take a step, if only a modest one, toward greater oversight of corporate actions abroad.
Photos: Paul Lemieux
Thursday, July 15, 2010
Andrew Vogeler, Pitt Law '12 and Nordenberg Fellow at the Max Planck Institute for Comparative Private and International Private Law in Hamburg, Germany, writes about attempts to harmonize contract law in the European Union...
As a Nordenberg Fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg, I have had the chance to study a similarly challenging project that intends to simplify and harmonize the legal systems in Europe in areas key to the development of the Internal Market of the European Union.
My research has focused on the process of developing a Common Frame of Reference, or CFR, for contract law in the European Union. This has, of course, been very useful for getting the "lay of the land" of contract law in Europe, particularly the relationship between the European Community and national law. But it has also provided a powerful example of the dynamics of legal change through comparative study, a model that characterizes the development of international law in the modern world.
My time at the Max Planck Institute has not only provided access to an unmatched collection of scholarship on the topic of contract law harmonization, but has also afforded rare opportunities to interact with leading scholars in European private law, including two of the institutes' directors, Professor Jürgen Basedow and Professor Reinhard Zimmerman. They, and others at the institute, have enriched my understanding of issues facing harmonization of European private law by sharing their experience and knowledge on this topic and offering insight into the dynamic and changing legal culture that accompanies harmonization.
To give a sense of the CFR process, I offer some of my findings and reflections on a topic that, though not widely known in the United States, could have a great impact on international transactions in the future.
The perceived need for contract law harmonization, which has justified the effort to develop a CFR, is essentially twofold. First, the diversity of national laws among the twenty-seven Member States is said to pose an undue obstacle to the Internal Market. It is argued that businesses and consumers are deterred from contracting across borders due to uncertainty in dealing with foreign law and increased transaction costs for hiring foreign law specialists.
Second, where the European Community (Community) has already acted with respect to contracts, mainly in the area of consumer protection, it has taken a fragmentary approach, addressing particular needs as they are perceived. Furthermore, it has mainly acted in the form of Directives, which are not law themselves, but merely set out legal objectives which the Member States are then bound to satisfy through national legislation.
The result is a labyrinth of national legislation accompanied by a patchwork of Community law, which is applied and interpreted differently in the various Member States. In response to this fragmentation, the European Commission (Commission) issued a Communication in 2001 (2001 Communication) calling for the development of a strategy to consolidate and clarify contract law. This 2001 Communication offered four basic choices for Community action, moving forward.
First, the Commission could do nothing and simply allow legal market forces to correct inefficiencies. Second, it could develop common principles of contract law so that member states would have a coherent body of European standards to serve as a model for national-level reform and encourage convergence. Third, it could improve existing legislation by clarifying terminology and consolidating Directives in the interest of coherency. Finally, it could adopt comprehensive legislation or a new instrument at the Community level.
The 2001 Communication thus figured in an ongoing debate about the proper direction any harmonization efforts should take. On the one hand, an eventual European Civil Code was advocated on the basis that the obstacles caused by national law divergence could only be fully eliminated through codification.
On the other hand, skeptics of codification argued that removing all legal diversity would also remove legal competition and would thus remove an important source of innovation for addressing new legal problems in the Community. Furthermore, skeptics noted that since Member states would be reluctant to quickly desert their own contract laws, codification would take place gradually and be subject to implementation and interpretation on the national level. Thus, legal uncertainty could actually be exacerbated, and the problem of divergence would simply take a new form rather than being eliminated.
The responses to the 2001 Communication came from a wide range of businesses, consumer groups, and interest groups and enabled the Commission to reach a couple of general conclusions for moving forward. First, the problems with the extant contract law were real enough that inaction was not a favorable option. Second, the idea of consolidating and clarifying existing Community law was widely embraced. And third, diversity of law could pose an obstacle, but not to the extent that uniformity would be necessary. Thus, the Commission determined that finding common principles and developing a common terminology might be a useful idea, but that something like codification would not be widely embraced.
In response to these reactions, the European Commission released an Action Plan [PDF] in 2003 that called for improving the acquis, or the body of European contract law, by developing a Common Frame of Reference, or CFR. The CFR is to be a political project through which common principles of European contract law and common terminology will enable a clearer understanding and interpretation of legal concepts by legislators, courts or practitioners throughout Europe.
Additionally, the Action Plan called for reflection on the development of a possible "optional instrument," which would allow parties to subject their agreements to a Community instrument of contract rules, but would also leave national rules intact.
In a 2004 Communication [PDF], the Commission further articulated goals for the CFR: that it would offer clear definitions of legal concepts, articulate fundamental principles of contract law, and develop a coherent set of model rules, based upon the acquis and perceived best practice solutions from the various national laws.
Additionally, the European Commission and Parliament offered possible applications for the CFR. Beyond improving the acquis, it could be used as a "legislator's toolbox," both for adopting EU Directives in a consistent way and in national contract law reforms. It could also provide the European Court of Justice with a persuasive source in disputes concerning Community law. In this sense, it would serve a function quite similar to the American Law Institute's Restatements or the Uniform Commercial Code, and could also draw upon prior projects, such as the Principles of European Contract Law, published by the so-called "Lando Commission" between 1995 and 2003.
Further, the CFR could serve as the basis for an optional instrument available in arbitration cases because it would allow parties to choose a neutral set of rules to govern their contracts, much like the United Nations Convention on Contracts for the Sale of International Goods (CISG) in sales contracts or the International Institute for the Unification of Private Law (UNIDROIT) principles.
In 2005, the Commission charged the Joint Network on European Private Law (Joint Network) to develop a draft CFR, or the DCFR. The Joint Network includes a number of groups, including the successor to the Lando Commission, the "Acquis Group," to draft "Principles of European Law." Additionally, various groups were charged with researching issues ranging from the cultural bases of national laws to the economic impacts of various proposals. A couple of groups, such as the Project Group Restatement of European Insurance Contract Law, which had already been working on developing principles of insurance law, were brought in to support the DCFR's work in particularly important areas.
The Joint Network published an outline edition of the DCFR in 2007 and released a full, multi-volume edition with commentary in 2009 [Outline edition, PDF]. However, while the DCFR represents great progress in the process of harmonization, it has ignited or re-ignited debates in a number of areas. A foundational concern is the competence of the EU to pursue a CFR. It is undisputed that the European Union does not have a general power to act in contract law, which leaves the question of whether its limited ability to affect contract law through areas like consumer protection and the advancement of the Internal Market is sufficient.
There is also concern about the proper scope of the DCFR and future CFR, and how they should be applied. Where is the line between contract law and other areas of private law? Does the DCFR look too much like the beginning of a general law of obligations? Would the proposed optional instrument be "opt-in" or "opt-out?" Would such an instrument supplant national mandatory rules if chosen? If so, would it provide adequate protection of weaker parties? What would its relation be to existing international agreements, such as the CISG? Finally, there could be endless debates about the substantive details of the principles, definitions, and model rules contained in the DCFR.
Questions have also been raised about the manner of developing a CFR on the basis of the DCFR. On the one hand, though academic committees are perhaps best able to develop a comprehensive and coherent set of principles, they are often criticized as being elitist and unaccountable to democratic processes. On the other hand, the compromises necessary to any parliamentary process could threaten the coherency of the principles and undermine their effectiveness.
Nonetheless, if a CFR is created in according to the Commission's goals, it would provide a number of benefits beyond simplifying transactions within the Internal Market. It would provide a useful guide to non-European lawyers in transactions involving European parties. It would provide a potential model for contract law reform in other parts of the world, particularly because it would represent the mixture of diverse legal systems. Finally, it could offer valuable lessons in future international contract law harmonization projects.
To that end, the DCFR represents an important step along the path to harmonization if for no other reason than that it provides a substantive basis upon which the debate can continue. Where prior debates have depended entirely upon speculation as to what kind of harmonization might be possible, let alone its effects or desirability, the DCFR provides a much more substantial basis upon which qualitative and quantitative research and debates can be conducted.
However it might be evaluated directly, therefore, it represents an undeniable step forward for the process of contract law harmonization in Europe and should certainly encourage future progress.
Photo: Andrew Vogeler
Wednesday, July 07, 2010
Ingrid Burke, Pitt Law '11, writes on the detention of Peter Erlinder, law professor and defense counsel at the ICTR, in light of her recent visit to the International Criminal Tribunal for Rwanda...
For a more detailed history of the ICTR, please see my most recent article on case transfers to Rwanda. To summarize, the ICTR has primary jurisdiction over the cases of individuals accused of having committed acts of genocide, war crimes, and crimes against humanity in the territorial and temporal context of the Rwandan genocide.
However, the tribunal's days are numbered. While the closure [PDF] dates of the trial and appeals chambers were recently postponed until the end of 2011 and 2013, respectively, these extensions are insufficient to accommodate the number of cases in progress and those that are yet to begin. Rule 11 bis was introduced to the ICTR Rules of Evidence and Procedure (REP) in order to ease concerns respecting such time constraints. According to Rule 11 bis, the Prosecutor is entitled to apply for the transfer of cases of lower to mid-level indictees to Rwanda's national jurisdiction, which ICTR Prosecutor Hassan Bubacar Jallow has attempted five times to date.
Each of these applications was denied for various reasons, including the appropriateness and applicability of punishments for genocide, the adequacy of protection for defense witnesses, witnesses' ability to enter Rwanda in order to testify, and ethnic biases that could affect the trials' impartiality. The ICTR has sponsored numerous funding and training initiatives in order to effectively reform the Rwandan judiciary, and until very recently, these initiatives appeared to have been paying off. The relevant laws were more narrowly tailored; modern witness protection programs replaced their problematic predecessors; greater assurances were granted to defense witnesses residing outside of Rwanda; and greater independence was bestowed upon the judiciary in order to curb tribunal fears of ethnically prejudicial sentencing.
The arrest and detention of Peter Erlinder, however, sheds new light on these examples of juridical progress and begs the question: would it be irresponsible - despite all of the safeguards guaranteed to transfer cases by way of the Law Concerning Cases of Transfer to the Republic of Rwanda (Transfer Law) for the ICTR to begin transferring cases to Rwanda when clear evidence suggests that such safeguards are denied to individuals whose cases were never initially claimed by way of the ICTR's jurisdictional grant? In other words, can one good law render unimportant the instability of an entire judiciary?
Over the course of his career, Peter Erlinder has defended numerous high-profile - and often highly unpopular - clients, served as lead council on various defense teams at the ICTR, and taught various courses at William Mitchell College of Law.
Perhaps Mr. Erlinder thought that his citizenship, academic standing or media profile would protect him - why else would a law professor so knowingly and deliberately break the law by entering Rwanda? But he failed to understand that genocide defenders and deniers - however rich, powerful or well-connected - are regarded by Rwandans as serious criminals hell-bent on destabilizing our nation.While Erlinder has since been released on bail and has returned to the United States, the Rwandan government continues to plan to file charges [PDF] against him. These charges are based on the highly controversial Law Relating to the Punishment of the Crime of Genocide Ideology (Genocide Ideology Law). Since its passage in 2008, this law has been criticized by numerous international organizations, foreign governments, and NGOs for its far reaching implications. For example, Article 19 - an organization aimed at promoting freedom of expression and freedom of information - recently filed a report [PDF] with the United Nations criticizing the Genocide Ideology law:
ARTICLE 19 is alarmed by the Genocide Ideology Law principally because the central concept of "genocide ideology" is extraordinarily broad and would catch a whole range of forms of expressions concerning genocide.... Furthermore, the system of penalties also breaches international human rights law, particularly with respect to children.
Problems with the Genocide Ideology Law
Article 3 establishes the criteria for charges of supporting genocide ideology. One subsection of the article includes the following list of prohibited behaviors: "marginalizing, laughing at one's misfortune, defaming, mocking, boasting, despising, degrading, creating confusion aiming at negating the genocide which occurred, stirring up ill feelings, taking revenge, altering testimony or evidence for the genocide which occurred."
The penalties imposed by the articles of the Genocide Ideology Law are strict, and the text of the law is replete with negative implications for free speech. For instance, the subsection of Article 3 quoted above implies that history cannot be questioned. I see no major problem with this as far as acknowledging the deaths of between 800,000 and 1,000,000 victims is concerned. However, a key element of justice is transparency, and impunity can only be detrimental. As such, a law which effectively prohibits questions related to the liability of former rebel leaders does a disservice to the goals of justice and reconciliation.
Furthermore, Article 9 of the Genocide Ideology Law allows Rwandan authorities to send children under the age of 12 accused of having espoused genocide ideology - be it for "mocking, boasting, or despising" the wrong child on the playground - to rehabilitation camps for up to 12 months. This article establishes a punishment too close in nature and purpose to the First Nations reservations schools in Canada (Assembly of First Nations) to be reconcilable with international human rights law, such as Article 18 of the International Covenant on Civil and Political Relations and Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide.
Implications for the Stability of Rwanda's Judiciary and for Rule 11 bis transfers
While fair trial and due process concerns have traditionally blocked Prosecutor Jallow's efforts to transfer cases to Rwanda's national jurisdiction, the introduction of the Transfer Law seemed to alleviate such concerns. Under the Transfer Law, transfer-case defendants are guaranteed fair trial and due process rights that are in line with international standards. Furthermore, the ICTR is able to implement monitoring mechanisms in order to ensure that transfer cases are adjudicated properly. In effect, the Transfer Law creates a safe haven within Rwanda's judiciary for the cases of lower to mid-level ICTR defendants.
Outside of that safe haven, however, juridical conditions are shakier. Among other issues, most high-level genocide cases are tried in Rwanda's Gacaca court system. Among other points of concern, the Gacaca courts have been harshly criticized by Human Rights Watch and Amnesty International reports for a lack of public access to trials, the dangerously low educational and professional standards required of judges, and extremely lax witness protection rights. Rwandan prisons are sorely lacking in terms of due process concerns - such as indefinite pre-trial detention - and basic sanitation and living standards, according to a report from World Prisons Brief at King's College London. Finally, the Erlinder case reflects poorly on Rwandan judicial independence in light of Erlinder's well-publicized conflict with President Kagame in his role as opposition candidate Victoire Ingabire's counsel in the midst of the upcoming presidential elections.
It is arguable that the aforementioned problems are irrelevant to the question of Rwanda's readiness for ICTR Rule 11 bis transfers. After all, the Transfer Law guarantees international fair trial and due process norms to transfer defendants, and the Tribunal is entitled to keep tabs on these cases in order to verify their fairness. Furthermore, since cases transferred from the ICTR are limited to the Tribunal's subject matter jurisdiction, which excludes "genocide ideology", the ICTR could choose to overlook the problems posed by Erlinder's arrest.
However, in a recent press release, Amnesty International's Erwin van der Borght summarized the troublesome issue of Rwanda's persevering susceptibility to juridical instability well in saying:
We have documented a number of incidents of intimidation and harassment of opposition groups in Rwanda in recent months....[n]ow with the arrest of a potential presidential candidate a few months ahead of the election, we call on the government to demonstrate that this is not another such case.
Ultimately, considering the ICTR's stated goals of contributing to the "process of national reconciliation and to the restoration and maintenance of peace," I think it is imperative for the ICTR to question the appropriateness of transferring cases - even if such cases will be protected by defense rights and international monitoring - to a judiciary that, despite progress over the past several years, has shown itself to suffer from a dangerous amount of political influence in the lead-up to this year's presidential elections.
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