Wednesday, March 30, 2011
Sarah Paulsworth, University of Pittsburgh School of Law '12, writes about the absence of alternative military service in Azerbaijan and of protections afforded to conscientious objectors (COs) under international law...
COs are individuals who due to religious or other beliefs refuse to perform traditional military service. COs include those who object on religious grounds, like Jehovah's Witnesses, and those like Hajiyev who object for other reasons, such as pacifism. In addition to Hajiyev's case, there are a number of other recent incidents where conscientious objectors have been detained and even imprisoned in Azerbaijan. According to religious freedom watchdog Forum 18, on January 25 of this year Azerbaijan's Supreme Court rejected an appeal of a nine-month prison sentence for Jehovah's Witness Farid Mammedov, who was prosecuted for evading military service and is now serving his sentence in a labor camp. The Supreme Court upheld a lower courts prosecution of Mushfig Mammedov (unrelated to Farid Mammedov) in a similar case in December 2010. Mushfig Mammedov and Samir Huseynov, also prosecuted for military evasion, have filed a complaint with the European Court of Human Rights (ECtHR) (Application 14604/08).
Legal situation for COs in Azerbaijan
In Azerbaijan, all male citizens of between the ages of 18-35 must serve between one and one-and-a-half years of military service unless they are deemed physically or mentally unfit for service. However, according to Article 76(II) of Azerbaijan's Constitution [PDF, Azeri], "If beliefs of citizens come into conflict with service in the army then in some cases envisaged by legislation alternative service instead of regular army service is permitted." Parallel with this, freedom of conscience for everyone is guaranteed under Article 48 of the Constitution. Those accused of evading military service in Azerbaijan are prosecuted under Article 321 of Azerbaijan's Criminal Code, which provides for up to a two-year prison term in peacetime for evasion and a three to six-year prison term when the nation is at war.
Prior to 2002, the Constitutional provision on alternative service was not present; however, Azerbaijan added it consistent with the conditions of its accession into the Council of Europe (COE). Specifically, the Republic of Azerbaijan undertook the obligation [PACE opinion 222] before the COE to adopt legislation on alternative service and pardon all COs. Although Azerbaijan did alter its Constitution, more definite steps to clarify who qualifies for alternative military service, under what circumstances, and what alternative service entails have not been forthcoming. Azerbaijan's law on military service ["Hərbi Xidmət Haqqında" Azərbaycan Respublikasinin Qanunu, in Azeri] contains no provisions on alternative service, nor is alternative service envisaged in separate legislation. In the interim, the prosecution and persecution of COs, including Hajiyev, has persisted, leaving Azerbaijan in breach of its obligations before the COE and also the broader international community for a decade.
Azerbaijan's prosecution of COs contravenes the right to freedom of conscience, which is enshrined in a number of international human rights instruments that Azerbaijan has ratified, including Article 18 of the Universal Declaration of Human Rights (UDHR) and Article 18 of the International Covenant on Civil and Political Rights (ICCPR). In the past, some legal experts looked to ICCPR Article 8 and concluded that obligatory military service for COs was lawful, since Article 8 prohibits forced labor but not in the context of "[a]ny service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors." However, in considering the cases of two COs from South Korea (CCPR/C/88/D/1321-1322/2004) the UN Human Rights Committee (UNHRC) said Article 8 "neither recognizes nor excludes a right of conscientious objection." It therefore decided, based on ICCPR Article 18, that the conviction and sentencing of a CO "amounts to a restriction on their ability to manifest their religion or belief." Furthermore, in UN Human Rights Commission Resolution 1998/77 the UNHRC reminded States with obligatory military service to set up a system of alternative service for COs that is "of a non-combat or civilian character, in the public interest and not of a punitive nature." On the basis of these human rights instruments, and UN decisions and resolutions, the continued prosecution and persecution of Bakhtiyar Hajiyev, and other people like him, who seek to perform alternative service in lieu of traditional military service, is clearly a breach of Azerbaijan's obligation before the international community to ensure freedom of conscience.
Azerbaijan's prosecution of COs also contravenes Article 9 of the European Convention on Human Rights (ECHR), which encompasses the right to freedom of conscience. As member of the COE, Azerbaijan has a positive obligation to respect and uphold the rights envisaged in the ECHR. Furthermore, the COE requires new member-states with obligatory military service, including Azerbaijan, to implement legislation allowing for alternative service for COs. Azerbaijan unequivocally undertook this obligation during its accession. In addition, pursuant to PACE Recommendation 1518, the Assembly sought to have the Committee of Ministers compel other (older) COE members to adopt legislation allowing conscientious objectors to be exempt from compulsory military service and put in place a system of alternative service.
Europe's Problematic Jurisprudence
Interestingly, despite the protection afforded to COs in both international and European human rights instruments, the ECtHR and its now defunct gatekeeper, the European Commission on Human Rights, have been less than clear on the issue of rights afforded to COs. This has seriously undermined the full realization of freedom of conscience for COs in COE member states, including in Azerbaijan for Bakhtiyar Hajiyev.
In Grandrath v. Germany (1966) [French] and X v. Austria (1973) [See generally ECtHR fact sheet on COs], the European Commission on Human Rights found that states were free to determine whether COs are exempt from military service. Then, in Uelke v. Turkey, the ECtHR considered the case of a CO under the ECHR Article 3 prohibition against torture and found a violation in light of the aggregate effects of numerous imprisonments and the fact that the petitioner was not exempt from military service even after serving his prison sentence. The ECtHR, however, refrained from making a decision with regards to Article 9, and the case therefore seems to have limited applicability (if any) on cases like the situation of Hajiyev, where the petitioner has not yet been subjected to numerous arrests but is being punished for his beliefs.
This jurisprudence is disturbing, but the ECtHR stands poised to change this trend in Bayatyan v. Armenia, a case the Grand Chamber will soon decide. In October 2009, the ECtHR issued a chamber decision in Bayatyan, a CO case that the Court has finally considered under Article 9. However, the Chamber decision was surprising, to say the least. In this decision, the ECtHR said that Article 9 "clearly left the choice of recognizing conscientious objectors to each contracting party." It added, "[A]rticle 9, read in light of Article 4 Section 3(b) [prohibition against forced labor outside the context of compulsory military service] does not guarantee a right to refuse military service on conscientious grounds." This decision has been widely criticized and appears to be in direct conflict with UN obligations, the ECHR, and principals that the COE itself has promulgated and imposed on its member-states.
In May 2010 the ECtHR's Grand Chamber accepted a referral of the case, so the Bayatyan decision is not yet final. According to the dissenting opinion of Judge Ann Power, the ECtHR failed to interpret the Convention as a "living instrument." In this sense, even if Article 9 and 4 Section 3(b) were once read as allowing states to not exempt COs from compulsory military service, this understanding could be reinterpreted in light of recent UN and COE activity and in a manner consistent with current standards. Additionally, consistent with the concurring opinion of Judge Elisabet Fura, the case could be assessed within the framework of the statements made by Armenia during COE accession in accordance with the International Court of Justice's Nuclear Tests Case [PDF]. Pursuant to this case, legally-binding obligations can arise from statements made by government officials. During its accession process to the COE, Armenia made statements clearly committing itself to instituting a system of alternative service, and under international law those statements "may have the effect of creating legal obligations." Similarly, Azerbaijan may be deemed to have incurred legal obligations through statements it made during the accession process. This could be relevant to Hajiyev's case, because Azerbaijan has to date not adopted legislation on alternative service. In contrast, Armenia instituted this legislation in 2003, after litigation on Bayatyan was already underway. Finally, another important consideration in the Grand Chamber's forthcoming decision on Bayatyan will be the documents that it deems relevant. In the Chamber decision of October 2009, the ECtHR excluded the ICCPR, by which Armenia is bound, but included the European Union (EU) Charter on Fundamental Rights, by which Armenia is not bound as it is not a member of the EU. Additionally, the ECtHR could include General Comment 22 of the Human Rights Committee on ICCPR Article 18, UN Human Rights Commission Resolution 1998/77 and CCPR/C/88/D/1321-1322/2004. In General Comment 22, the UNHRC says, "The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from Article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief."
Due to the dissonance between the international standards and ECtHR jurisprudence on COs, the ECtHR's decision on Bayatyan could have serious implications for member-states like Azerbaijan who are bound by the ECHR but continue to persecute COs. The Grand Chamber should diverge from the Chamber decision, and embrace the internationally accepted view that an exemption from traditional military service for COs is envisaged in the Right to Freedom of Conscience. However, even if it does not rule in this manner, the decision of the UN Human Rights Committee on the South Korea case and the COE's mandate that member states should provide alternative service options to COs should be the guiding principal for any litigation that could proceed from Bakhtiyar Hajiyev's detention and prosecution.
NOTE: COs and advocates may find helpful Emily Miles "A Conscientious Objector's Guide to the UN Human Rights System" [text, PDF] and the ECtHR's case-law backgrounder on Conscientious Objection [text, PDF].
Photos courtesy of the Institute for Reporters Freedom and Safety (IRFS)
Friday, March 18, 2011
Anna Mandel, Boston College '11, writes about confidentiality obligations imposed by courts of arbitration and host governments in France and the United Kingdom...
However, according to a recent international arbitration survey, parties sometimes make the dangerous assumption that confidentiality obligations apply even when an agreement or institutional rule is silent on confidentiality protection. In such cases, national rules on confidentiality in international arbitration would apply. For corporations concerned with keeping information surrounding arbitration confidential, local laws drive decisions on where to hold arbitration. For instance, London and Paris are both popular seats of arbitration, but maintain differing national laws on confidentiality.
A duty of confidentiality can come from a wide variety of sources, including an agreement, institutional rule, or national law. If an agreement specifies parties' duties of confidentiality, a tribunal normally respects the agreement. However, there are certain narrowly drawn circumstances in which the public interest may outweigh parties' rights to confidentiality, such as when public entities or States are involved in disputes. If no confidentiality agreement exists, lawyers review institutional rules such as those of the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris, or the London Court of International Arbitration (LCIA).
The ICC Rules [PDF] are silent on confidentiality, except for the broad stipulation that a tribunal must "take measures for protecting ... confidential information." If no agreement delimits confidentiality obligations, national laws would apply under an ICC arbitration. To contrast, in keeping with English law's general rule that confidentiality is inherent in private proceedings, the LCIA provides extensive rules on confidentiality, including a default duty of confidentiality refutable only by the express written consent of the parties. However, the duty is accompanied by disclosure exceptions for protecting other legal duties, pursuing legal rights, or enforcing or challenging awards in State courts. Such exceptions touch private legal interests, and national case law is often used to determine when an exception would apply.
Consulting national laws on confidentiality is therefore indispensible when agreements or institutional rules are silent, or when suspicion exists that private interests may override the obligations of confidentiality. Various approaches for filling such a lacuna in the confidentiality legal framework exist: civil law-based States, such as France, tend to favor confidentiality rights with very limited statutory exceptions, while common law States, such as England, provide protection with enumerated exceptions elaborated by case law.
The UK Arbitration Act does not mention confidentiality, but English case law provides an extensive analysis of the topic. Under English law, an implicit duty of confidentiality exists with the conclusion of an arbitration agreement. The duty is based on the principle that arbitration is a private, and consequently confidential, dispute resolution process. Exceptions to this common law principle exist, however. Companies seeking to protect sensitive information and still allow room to reveal information when necessary to protect their interests may therefore look to London as a seat of arbitration.
The Dolling-Baker case articulated the concept of implied confidentiality. The court prohibited one party from disclosing transcripts and an award from a previous arbitral hearing in court. The court affirmed that confidentiality is an "implied obligation arising out of the nature of arbitration itself." However, it hinted at the possibility of exceptions: "if ... disclosure and inspection is necessary for the fair disposal of the action." Such fairness exceptions were expanded in subsequent case law as private interests weighed against confidentiality protections, such as when the interests of justice collide with the implied confidentiality principle when disclosure of information surrounding an arbitration is "reasonably necessary for the establishment or protection of an arbitrating party's legal rights vis-a-vis a third party." The English court tries to protect individual rights insofar as disclosure of information is necessary to secure them; if it merely assists, the exception would not be met.
Further exceptions based on consent, court order, reasonable necessity and the interest of justice were also outlined in a ship-building contract dispute case, Ali Shipping. The confidential information in question was found in an arbitral award, opening submissions and two witness transcripts of oral evidence. One of the parties wished to rely on these documents to refute the allegations of the opposing side, but, citing the reasonableness analysis, the court confirmed that implying confidentiality into an existing contract would depend on "whether it is necessary ... [in order] to give business efficacy" to the contract, thereby necessary to establish or protect the arbitrating party's legal rights vis-a-vis a third party. Before allowing the appeal, the Court required proof of the reasonable necessity of disclosure.
English law thus provides a fair balance between protecting confidential information and ensuring due process by maintaining an implied duty of confidentiality with reasonably necessary private interest exceptions. For commercial actors seeking this type of balance, London is a good choice for arbitration.
In contrast, France, a civil law State, imposes one of the highest duties of confidentiality among popular international arbitration jurisdictions; the duty in France is subject only to a statutory right of information. According to the Paris Court of Appeal in the leading case, Aita v Ojjeh, "it is in the very nature of arbitration proceedings to ensure that the highest level of secrecy governs the resolution of private disputes in accordance with the parties' agreement." The Court ruled that disclosing a previously-rendered arbitral award by attempting to challenge the award in French national court violated the implied obligation of confidentiality of information. It found that challenging the previously-rendered arbitral award in French national court was jurisdictionally improper, and so the act of disclosing the award violated confidentiality. In True North v Publicis, the Paris Commercial Court confirmed that arbitration was a private procedure having a confidential character. True North was fined and prohibited from further publishing information regarding the existence of arbitration with the advertising agency Publicis.
Companies seeking such strong confidentiality protections may therefore look to Paris, where the ICC is headquartered, as a seat of arbitration. Since the confidentiality of information makes arbitration an appealing alternative to litigation, national legislation on international arbitration can alter the arbitral landscape by encouraging (or discouraging) commercial actors to choose certain jurisdictions. In fact, French arbitration law was recently modified to this end. While the new law only applies to domestic arbitration, it is meant to modernize and strengthen existing international arbitration practices, in order to maintain Paris as a popular arbitral seat. In this way, it is easy to see how domestic law often influences companies to act, just as commercial actors' needs or preferences may influence the creation or modification of law. Commercial actors therefore work reciprocally with the law, and this national legislative attention will continue to play an important role in maintaining certain jurisdictions as centers of international commercial arbitration in the future.
Friday, March 11, 2011
Javier Centonzio, Stetson Law '12, is an Iraq War veteran. He writes about the veterans issues addressed by Veteran Treatment Courts...
On January 11th, 2010 Secretary of Veterans Affairs Eric Shinseki addressed a suicide prevention conference held in Washington, D.C. During his address, Secretary Shinseki confirmed the existence of an epidemic that many feared existed in our country. "Of more than 30 thousand suicides in this country each year, fully 20 percent of them are Veteran suicides. That means, on average, eighteen Veterans commit suicide each day." As a combat veteran of Iraq, the news that 18 veterans take their lives each day was not surprising to me. I know of many fellow veterans who chose to commit suicide. What was surprising was the apathy of the American people once the rate of suicide was made public. This apathy made me realize I had to serve as a voice for veterans and raise awareness.
The illusions I once had of returning to a grateful nation where veterans could enjoy the freedoms we fought to protect were replaced with the truth that we must continue to fight once we return. It is vital that we fight and advocate for those who have served, are serving or will serve in the future. Veterans represent every demographic in our society; whether rich or poor, black or white, gay or straight, they have all made a commitment to serve others and have selflessly done so. They give so much and ask for nothing in return but to be allowed to enjoy the freedoms and liberty they fought to protect.
Secretary Shinseki urged those attending the suicide prevention conference to identify their role in preventing suicide amongst veterans and to take ownership of the problem. What is the role of the legal profession in preventing suicide among veterans? The legal issues that veterans face are as diverse and numerous as they themselves are diverse and numerous. A precious few in our profession have set the example of what our role is in this fight. I had the honor of meeting one of these precious few, the Honorable Judge Robert Russell. Judge Russell is an Associate Judge for the Buffalo City Court and created Buffalo's Drug Treatment Court and Mental Health Treatment Court.
While presiding over these courts, Judge Russell noticed a growing number of returning veterans appearing on his dockets and other treatment court dockets in surrounding areas. This troubling trend sparked Judge Russell to take ownership of the problem and identify his role in helping veterans. On January 15th, 2008, Judge Russell established the nation's first-ever Veteran Treatment Court in Buffalo, New York. In creating the first Veteran Treatment Court, Judge Russell took a pro-active approach to dealing with problems faced by veterans by developing a specialized treatment court to meet their particularized needs.
The effects of war significantly contribute to mental illness, substance abuse, homelessness, arrests and suicide among veterans. The Veteran Treatment Court provides judicially supervised treatment plans that are developed by a team of professionals working with the individual veteran. The team consists of mental health professionals, health care professionals, peer mentors and court staff. Once the veteran completes his or her program of treatment, he or she will have the charges dismissed or be given an alternative, non-incarcerative sentence. Soon after creating the Veteran Treatment Court, Judge Russell and his staff received numerous requests from other treatment professionals throughout the country for guidance on handling the growing number of veterans on their dockets.
Currently there are over 50 Veteran Treatment Courts operating in 21 states. While the number of Veteran Treatment Courts is growing, it has not yet reached an adequate level to deal with the number of veterans needing the treatment these courts provide. With the growing trend of criminalizing homelessness in our country, the large population of homeless veterans would benefit greatly from the treatment provided through these courts. Judge Russell discovered one role that our profession can play in preventing veteran suicides and showing appreciation for their service.
On November 3rd, 2009 Secretary Shinseki unveiled the VA's five-year plan to end homelessness among veterans. Part of this five-year plan requires that yearly summits be held throughout the nation's VA facilities. On Thursday, February 3rd, I attended the Homeless Summit at the Bay Pines VA Medical Center to find out more about this five-year plan and how I could help as a law student. One of the first things that struck me about the event was the repeated requests for input and ideas from those in attendance. The room was filled with local health care professionals, mental health professionals, social workers, counselors, law enforcement officers and concerned citizens. The most intriguing part of the event came when they announced that Veteran Treatment Courts are now part of the plan.
The VA's recognition of the need to implement Veteran Treatment Courts is an important step in ensuring our veterans receive the treatment they need and the services they have earned. There are still many steps that need to be taken in order to create Veteran Treatment Courts in every state so that every veteran has access to justice. I urge those of you who are interested in helping our heroes to take action and contact your local representatives and members of the bar to tell them of the importance of helping our veterans obtain access to justice. We have lost too many of our bravest and brightest to suicide and a criminal justice system that was not designed to serve their particularized needs. When they took an oath to defend our great nation they did so without hesitation or concern for themselves, but this is no excuse for us to hesitate now when they need us the most. It is up to each and every one of us to show them that we are concerned about them and that we value the sacrifices they have made on our behalf.
Witnessing first hand the difficulties faced by those in countries devoid of the rule of law had a tremendous impact on me. While some among us may point to countries lacking the legal system we possess with a sense of pride and hubris, it is clear that our system is far from perfect. Our failure to address the legal issues and meet the needs of our heroes is clear evidence of our imperfection. Veterans deserve the very best of our profession and our legal system; a system that itself would cease to exist without their service and sacrifice.
Veterans in need of assistance are encouraged to contact the resources below:
VA Homeless Website: http://www.va.gov/homeless/
National Suicide Prevention Hotline: 1-800-273-TALK; Veterans press 1
National Call Center for Homeless Veterans: 1-877-4AID-VET (424-3838)
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