July 13 (Bloomberg) -- UBS AG, the largest Swiss bank by assets, is in talks with the U.S. government to settle a lawsuit seeking the names of 52,000 American account holders suspected of using Swiss secrecy laws to evade taxes.

The bank agreed with the U.S. and Swiss governments to seek a settlement and postpone an evidentiary hearing today in a Miami courtroom, according to a court filing. The U.S. sued UBS on Feb. 19, a day after the bank agreed to pay $780 million to defer prosecution for helping wealthy Americans evade taxes.

Under that agreement, UBS also agreed to an unprecedented breach of Swiss secrecy laws by giving the Internal Revenue Service data on more than 250 accounts. Switzerland, which supports UBS in the case, said the U.S. push for data on 52,000 other accounts is a threat to its sovereignty and would force the bank to violate Swiss criminal laws protecting bank secrecy.

“This adjournment gives people at very high levels of both governments time to get involved and consider the implications of this litigation,” said Bryan Skarlatos, a tax lawyer at Kostelanetz & Fink LLP in New York. “The symbolic value of this case is huge. It’s King Kong versus Godzilla. It’s the IRS versus bank secrecy jurisdictions.”

By Daniel Bodansky, Harvard University Press, 2009. Pp. 330. $39.95 (cloth).

The reviewed work is a collection of interrelated essays, all written by Professor Bodansky, presenting a general overview of most areas of international environmental law. It is not a casebook, nor does it contain excerpts of leading cases. Professor Bodansky provides a good general overview of environmental law. However, he does not treat any aspect of the subject in depth. The book would thus serve well as a general introductory text for political scientists, economists and policy-makers, or as a supplementary book for a course on international environmental law.

The result of this generalist approach is that the various aspects of positive law are treated superficially, scattered throughout the work. Although this approach works well for courses directed at political scientists and economists, it is not adequate to serve as the principal text for a course in international law directed at law students. If that had been the intended audience, a better approach may have been to systematically organize the materials by legal topics and to address the substantive (positive) law in-depth with analyses of cases and conventions.

The work provides a general overview of international environmental law but does not cover all aspects of the subject. For example, the World Trade Organization’s SPS and Technical Barriers to Trade agreements – both of which have broad environmental implications – do not seem to be treated in the work at all.

The author seems concerned with refuting the naïve view of international law, often held by political scientists or economists, that international law is somehow “mere rhetoric” and “not law”. The author clearly refutes the idea of international law as a space of non-law. His attention to these arguments here may be influenced by the last decade of U.S. unilateralism, and may be a reaction to that unfortunate tendency or the perceived mind-set of his intended audience.

The work ought not to be considered as a principal text for a course on international environmental law because of various omissions and its superficial treatment of the law. For example, the work does not seem to treat the issues of monism versus dualism and the related question of the integration (or not) of international laws as directly enforceable rules before national courts. Although the work mentions many of the major international environmental treaties, such as the Kyoto protocol, they are not treated in sufficient depth to be of real use to a scholar or practitioner researching these treaties. Instead, this work is well-suited as an adequate introduction to international environmental law for economists, political scientists, and policy-makers, the apparent main audience for this work.

The treatment of general principles of international law provides another example of the limits of this work as a potential main textbook for a course on international environmental law. The principles of prevention[1] and precaution,[2] as well as the source principle[3] and the polluter pays principle,[4] arose in German law, where they are very well defined. These general principles of law were then taken up by E.U. law and in turn migrated from E.U. law into international law by way of international treaties, which are evidence of the opinio juris needed to form customary international law. U.S. legal scholarship tends to dispute the existence and contours of these general principles of international environmental law. These principles, though important, are treated only superficially in the work. The precautionary principle is described adequately, but its treatment is scattered throughout the work, here and there, in one to three page bursts. The polluter pays principle is mentioned on exactly three pages. The source principle does not seem to be treated at all. While this may be acceptable for students of political science and economics, it is not sufficient for a law school course where these legal principles and the debate about their international validity would have to be treated in much greater depth.

In contrast, general themes of political economy are very well treated in the work. Concepts such as externalities, the Coase theorem, game theory, Pareto optimality, and balancing as cost/benefit analyses are all treated with sufficient precision to be of use to economists, political scientists, and policy-makers, all of whom would find this work useful. In contrast, some basic legal issues, such as the internationally recognized general principle of proportionality, monism versus dualism, and whether and when international law is directly effective in U.S. law, are ignored. The focus on economic analysis may be due to an intended audience of political scientists and economists. Alternatively, this may be a reflection of the unfortunate tendency of “economic analysis of law” to dominate contemporary U.S. legal thinking. That theory, however, leads to reductionism and underdeveloped legal methodology. In any case, it limits the usefulness of this work as a text for legal specialists.

Stylistically, the work is successful. The author’s writing style is clear; the book is well-written, easy to read and entertaining. Moreover, the work provides a global overview of environmental political economy, follows a coherent outline, and contains a useful index. While I can recommend this work without hesitation to political scientists, economists, and policy makers, it should not be seen as the main text for a course in international environmental law at a law school. It may, however, be useful as a secondary work for such a course.

As many know, Professor Bodansky has made other, deeper, contributions to the study of international environmental law. Perhaps this work might be a lead-in to some future in-depth work of legalscholarship. International law deserves not only popularization and uptake by political scientists, historians, economists, and policy makers – the work here. It also merits deep and intensive work by and for legal specialists. We hope to see more work from Professor Bodansky in that vein. Given his past performance, our hopes are high.


-Dr.Jur. Eric Engle*

A complimentary copy of the reviewed work was provided to the Harvard International Law Journal.

----------------------------------------------------------------------

[1] Pollution should be prevented: prevention of damage is preferred to cure of damage.


[2] When in doubt whether a polluting activity causes harm the activity should not be undertaken: this principle is controvered.


[3] Pollution should be treated as close to the source as possible.


[4] Externalities should be internalized.


* Research aid to Professor Duncan Kennedy, Harvard Law School

An obscure law from the 1800s that is still on the books bans women from wearing pants in Paris, according to the Telegraph.

The law bans women from "dressing like men" in the French capital. It was first introduced in 1800 by Paris' police chief and has survived several attempts to repeal it.

It has been amended twice over the last 200 years. In 1892 the law was changed to allow women to wear trousers "as long as the woman is holding the reins of a horse." In 1909 another exception was made allowing women "on a bicycle or holding it by the handlebars" to wear pants.

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French Law: Women Can't Wear Pants

Qatar's new income tax law would apply to revenues of corporations and not that of individuals, a government official said on Tuesday, clarifying a report on the official news agency.

The official Qatar News Agency said earlier on Tuesday the new income law would take effect as of Jan. 1, without specifying the type of income it would tax.

"This law will apply to companies ... not people," the official, who declined to be identified, told Reuters by telephone. (Reporting by Inal Ersan; Editing by Amran Abocar)

On Tuesday, November 10, the navies of North and South Korea exchanged fire in disputed waters off the western coast of the peninsula, damaging ships from both sides and reportedly killing a North Korean sailor. The incident began when a 215-ton North Korean vessel entered South Korean-controlled waters. Ignoring warnings from the South, the ship exchanged fire with two 130-ton South Korean vessels before re-crossing the border, reportedly in flames. The North, which claims the waters where the incident took place, has blamed the South for instigating the confrontation and issued repeated warnings through its state news service.


South Korea’s options in responding to this incident are limited. Seoul’s right to military retaliation is constrained by the ongoing border dispute. The end of the Korean War never produced a peace treaty, and the North and South have technically been observing a truce since 1953. The North has never accepted the current sea boundary, a UN-drawn border called the northern limit line, and its ships regularly stray into waters controlled by the South. In this context, the South cannot make an undisputed claim that its territory was invaded.


South Korea’s options for less direct action are similarly constrained. While the South could initiate economic sanctions and asset-freezing, it believes that such measures could add to the desperate poverty of the North’s citizens and slow the recent détente between the two countries. In a sign that the confrontation has not altered trade relationships, a North Korean freighter was allowed to enter South Korean waters yesterday on its way to Incheon. Meanwhile, any attempt to arbitrate the dispute before an international body would require the consent of one of the most isolationist regimes in the world.


The North has a history of initiating skirmishes in order to escalate pressure before major regional events; the last time the countries clashed was in 2002, while the South was hosting the World Cup. In this case, analysts believe, the North may be trying to send a message to President Obama, who is currently visiting the region and is scheduled to arrive in Seoul on Wednesday. North Korea wants a formal peace treaty to replace the 1953 truce, including reconsideration of disputed territory. It also wants bilateral negotiations with the U.S., which it believes could lead to its acceptance as a nuclear power. President Obama, who has made engagement with “rogue states” a cornerstone of his foreign policy, plans to send special envoy Stephen Bosworth to Pyongyang for talks over ending the North’s nuclear program.

In*Shabani v. Switzerland (application no. 29044/06),*a 4-3 decision, the European Court of Human Rights (ECtHR) ruled last Thursday (11/5) that a lengthy pre-trial detention did not violate the right to liberty of a suspected leader of a drug trafficking organization.

The applicant, Mr. Ragip Shabani, was denied the option of posting bail and was then subject to a pre-trial detention lasting over five years. He had originally been arrested on August 2, 2003, on suspicions of taking a leading role in a drug trafficking operation believed to involve fourteen-hundred kilograms of heroin and cocaine. After losing his appeal concerning Switzerland’s decision not to allow him to post bail, he turned to the ECtHR in 2006 while investigations were still underway, claiming that his lengthy detention violated his right to liberty. Subsequently, Mr. Shabani was indicted in December 2007, and his trial was scheduled for March 2008 but was later delayed until August 2008 due to a lack of adequate security staff. He was convicted on October 30, 2008.

The ECtHR recalled its previous findings that a government’s reasonable suspicion that someone had committed an offence could only justify detention for a limited period of time; after that time had lapsed, the authorities would have to give “relevant” and “sufficient” reasons for the continued detention and show that they had displayed “special diligence” in the conduct of the proceedings. The Court found that the government’s reasons for the continued detention satisfied these additional conditions. The government’s concerns that Mr. Shabani might abscond or collude if given the chance to post bail, as well as the potentially dubious origin of the funds used, justified its denial of that opportunity. And the proceedings were understandably long, since investigating an underground international criminal organization is a complex operation; in this regard, the Court found it especially significant that there had been no periods of inactivity during the proceedings.

In a short dissent, three judges rejected the “no period of inactivity” logic, pointing out that it could potentially justify indefinite detentions. They further argued that the delay in the trial’s starting date had been insufficiently explained; after more than four years with Mr. Shabani in detention, Switzerland should have been particularly cognizant of the need to start trial immediately after the indictment was filed. In their view, Switzerland’s lack of diligence, coupled with the lengthy detention, constituted a violation of Mr. Shabani’s right to liberty.

For more information, please click here.

The Kimberley Process (KP) held a Plenary meeting in Swakopmund, Namibia last week, where it adopted a work plan for the Marange diamond mining fields in Zimbabwe, agreed to monitor “conflict diamonds” from the Côte d’Ivoire following UNSC Resolution 1893 (2009), and made decisions on the general enforcement mechanism of the KP rules. The Democratic Republic of Congo will be the 2011 Kimberely Process Chair.

The KP initiative began after 2000 discussions between interested governments, the diamond industry, and members of civil society of how to combat “conflict diamonds,” which have been used to finance wars in Africa’s diamond-rich countries. By 2002, the KP adopted the Kimberly Process Certification Scheme (KPCS), which requires participants to rigorously control diamond exports and imports and incorporate internal controls for the production and trade of diamonds. To ensure compliance, the KP requires statistical reporting on a regular basis in addition to other verification measures. With the Support of the United Nations and the European Community, the KP now has 49 Participants, with the members of the European Community counted together as a single member. The participants include all key centers for the production, polishing, and trade of diamonds.

The KP’s review of the Marange mining fields occurred as a result of recent reports suggesting non-compliance and human rights abuses. These reports followed the Zimbabwean government’s takeover of the fields during operation “Hakudzwoki” (no return) back in November of 2008. As a result, the KP adopted a double-track approach, using scientific measures to halt the flow of conflict diamonds from the area and sending a high-level KP envoy to the area. As part of the action plan adopted at the Swakopmund Plenary meeting, Zimbabwe agreed to bring mining into compliance with the KP so that the diamonds can be used for economic development rather than war.

For further information, please click here.

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) reduced the sentence for former Bosnian Serb army general Dragomir Milosevic from 33 to 29 years on Thursday. The tribunal found that the trial court had erred in its 1997 ruling and that there was insufficient evidence that Milosevic had ordered three shellings of civilians during his command of the siege of Sarajevo from 1994 to 1995.

Milosevic was a commander of the Bosnian Serb Army’s Sarajevo Romanija Corps (SRK), which laid siege to Bosnia’s capital, Sarajevo, for 44 months prior to the end of the Bosnian Conflict in November 1995. During the siege, which was the longest blockade in Europe since the end of WWII, snipers from the SRK routinely shot at civilians and troops shelled the city. Estimates by human rights organizations put the number of civilians killed at 10,000, approximately 1,500 of whom were children. Milosevic assumed command of the SRK from Stanislav Galic in August 1994 and held that position for fifteen months until the conflict’s end. Galic, the only criminal convicted of war crimes to have received a sentence of life imprisonment on appeal from the ICTY, was sentenced in November 2006.



Milosevic was indicted in 1998 and surrendered to the ICTY in 2004. He was convicted in 2007 of war crimes and crimes against humanity, including murder, inhumane acts, and acts of terror. Milosevic had appealed his 2007 conviction, while the prosecution had requested that the tribunal increase his sentence to life imprisonment. His appeal was heard this July, and the Appeals Chamber’s decision was announced on Thursday, November 12.

The Appeals Chamber found that there was not sufficient evidence to draw the inference that Milosevic ordered the sniping of civilians during the siege, or that he specifically ordered three shelling attacks on certain civilian sites. The tribunal did find, however, that Milosevic was nonetheless responsible for failing to stop and punish the crimes of his troops, and that he encouraged the commission of crimes against civilians through “maintaining and intensifying the campaign directed at the civilian population in Sarajevo.” It therefore reclassified his convictions for planning and ordering the sniping of the civilian population with a conviction, under Article 7(3) of the ICTY Statute, for failing to prevent and punish the crimes of his subordinates. The Appeals Chamber held that although the reclassification of Milosevic’s sniping convictions did not itself warrant a reduction of his sentence, the reversal of his convictions for the shelling incidents did have a limited impact on his over culpability. Dismissing the prosecution’s appeal entirely, the court accordingly reduced Milosevic’s sentence to 29 years. Judge Lia Daqun issued a partial dissent regarding the crime of terror conviction and certain sentencing issues.

Milosevic, 67, is no relation to the late Yugoslav president Slobodan Milosevic


For more information, please see here and here.

World Trade Organization Director-General Pascal Lamy last Monday called on the international community to reach a robust climate change agreement during Copenhagen Climate Conference next month.* Director-General Lamy carefully expressed preference for an international accord coming out of Copenhagen, one which the WTO would seek to help implement.* This approach, he asserted, would not only result in more effective climate change mitigation but would also relieve the WTO of the need to address the trade implications of unilateral or regional climate change efforts piecemeal.

Explicitly reinforcing his speech before a gathering of trade ministers in Bali two years ago, Lamy rejected a “trade-first, climate-second” approach for the WTO.* Instead, he asserted that the WTO would welcome a clear, consensual agreement on principles and methods for mitigating climate change coming out of Copenhagen.* Such an agreement would allow the WTO to take its cues from the expressed will of the international community and prevent the WTO from having to adjudicate disputes arising out of the fragmentary national or regional climate change mitigation that would inevitably take place in the absence of a clear Copenhagen accord.* That clarity and statement of will is necessary, he said, to combat “the single biggest challenge to civilization as we know it.”

For more information, please click here.

The Iraqi parliment finally approved the heavily contested election law paving the way for a crucial vote early next year. Wjat does it mean for the future of Iraq, will it boost the countrys attempt to attaining real democracy?

Investors seen positive on Iraq law

• Kirkuk impasse to impact north oilfields allure
• Eurobond prices to be unaffected by election law
• Disputed northern areas to weigh on investor sentiment

Investor sentiment will be bolstered by the Iraqi parliament's passage of a long-delayed election law, but the failure to resolve a row over the disputed city of Kirkuk may cause massive headaches in the long run.

A divided political scene and a stubborn insurgency continue to raise risks for investors in the world's 11th largest oil producer which is trying to kickstart its economy and energy sector after years of neglect.

Iraq's politics are mired in sectarian disputes and a row over power and land between the Arab-led government in Baghdad and Kurds in a semi-autonomous northern region. U.S. officials fear Kurd-Arab tensions may sow the seeds of a new war.

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Investors seen positive on Iraq law, eye Kirkuk row

A few weeks ago, while on vacation, we unexpectedly fell upon an interesting opportunity — to visit the U.S. embassy in Bucharest and sit down for a quick chat with Mark Gitenstein, the newly installed U.S. ambassador to Romania.

Why not, we figured. Apart from finding out what his current job is all about, we thought we’d hear a bit more about his previous life, both as a lobbyist and partner at Mayer Brown in D.C., and as a lawyer on Capitol Hill, where he helped craft a variety of well-known pieces of legislation, from the Speedy Trial Act in 1974 to the original FISA statute. Gitenstein is also the author of Matters of Principle, a book on his experience managing the Judiciary Committee staff during the Robert Bork Supreme Court confirmation hearings in 1987. Click here for the NYT story on Vice President Joe Biden’s speech while in Bucharest last month which mentions Gitenstein; here for the transcript of Biden’s speech; here for recent a BLT post on the Gitenstein/Biden relationship.

Here’s the way it went down:

Mr. Ambassador, thanks for taking the time. So you’ve been in the office for not that long. How’s it going?

You’re right; it’s been fairly short. I was sworn in by the Vice President in August, but my credentials weren’t accepted by the Romanian president [Traian Basescu] until early September. It’s interesting — at least something that’s probably interesting to lawyers — you’re not really am ambassador until your credentials are accepted by the leader of the host country. You’re not allowed to fly the flag on your car until the whole process is official.

Why’s that?

Well, when you’re the ambassador to a foreign country, your job is to be the official representative from the president to the foreign country’s leader; it’s to be a bilateral relationship that has to be acknowledged by the host country. So until that happens, and some magic words of art are stated, you’re not an official representative.

Okay, so how’s the job been in the first six weeks or so?

Very intense. There’s a lot going on here. Of course, there’s been political turmoil, which has been covered extensively by the media, of course.

The newspapers over here make a lot of every development on the political front; they’re very aggressive and give the situation a lot of coverage from a variety of different political views. It’s like Fox News going up against MSNBC all the time.

But this has to be viewed as a good thing, right?

It’s wonderful. An aggressive press is very important; it’s a big part of a healthy, functioning democracy.

To go back for a second, though. It’s been very busy. Right when I got here, I had to attend a lot of meetings — I wanted everyone on the U.S. mission to get to know me, and I had a lot of people out to the residence. That was actually a lot of work. I knew I’d be entertaining quite a bit, but I simply wasn’t prepared for how much work that was. You just can’t absorb it all, but it’s very important. You simply can’t do this job without a staff, and you have to learn quickly how best to manage your staff.

And the political situation here was something you had to get up to speed on, right?

The politics hit pretty hard right away. Everyone wants to know immediately where the U.S. stands, especially regarding the upcoming election [in December]. But we don’t have a candidate. We have to be careful not to make statements on that front that could be misinterpreted, because the U.S. is not supporting a candidate.

I should also mention another big adjustment: security. I’m one of three ambassadors here who have an around-the-clock security detail assigned to them. I can’t go anywhere without being in a secure sedan; I have to give two-hours notice if I want to leave the house. My wife and I recently wanted to go see a movie — and we did — but it made the folks on the security detail a bit nervous.

You haven’t taken many high-profile positions, yet, have you?

No. We’re trying to keep a low profile until after the election. But we realize that’s hard. I have taken positions on a number of issues, especially in regard to U.S. businesses, and how they’re being treated legally. It’s important that the regulatory system develop as transparently as possible, for instance. There was also a judges’ strike over here, which was a source of concern. I’ve also attended an energy conference, met with members of the military and helped out a bit with getting the Holocaust memorial established.

Let’s talk a bit about your background. You worked for many years for Biden, right?

Yes. I got to know Biden in the mid-1970s. He’d seen me testify with Walter Mondale on a congressional panel related to the passage of the first FISA statute. He called me up and we hit it off. I worked for him for 13 years. Even after I joined Mayer Brown, I continued to work on legislation. I helped write the Class Action Fairness Act.

After the [2008] election, I co-chaired the transition team for Biden. I lived in Chicago from November through January of this year. In any event, Biden and President Obama had first approached me about serving as the head of the Office of Legal Policy for the Department of Justice, but the trial bar wasn’t too thrilled with that, partly because of the lobbying work I’d done at Mayer Brown.

It was around that time that I got a call from Biden asking me if I wanted to be an ambassador. I hadn’t ever considered being an ambassador, and at first I had doubts if I was even qualified. But I thought about it and talked to some people and decided I was interested. Biden and I talked about a number of potential countries, but I chose Romania, partly because I have ancestral ties to the country.

Tell us a little bit more about the judges’ strike you referred to earlier.

Sure. It was strange. The judges just went on strike. It’s as if in the U.S., all the Article III judges just stopped coming to work. It’s a very foreign notion to us — that judges would just stop working, and it was vitally important to foreign companies over here that that get resolved, which it largely has.

And what about on the criminal-law front? Any issues that you’re working on?

For a while, this area has been one of the worst in terms of human trafficking. Our expectations, I think, on cracking down on this has been a bit unrealistic. It’s not a problem that can reverse itself in just a few years.

The global economic meltdown has hit this area hard. How’s the country doing?

It has. Romania is going through a tough cycle right now. The country made certain commitments to the European Union when it joined in 2007, and they have certain responsibilities to maintain. I think they’ll come out of this, but it’s been a challenging time, as it has for a lot of economies.

Thanks much for taking the time.

My pleasure.

The hearing on the confirmation of charges against suspected Darfur war criminal Bahr Idriss Abu Garda at the International Criminal Court (ICC) ended on October 30th.Abu Garda, 46, is a leader of the United Resistance Front (URF), a rebel group fighting against the Sudanese government. He is suspected of war crimes allegedly committed during the attack on the African Union peacekeeping mission at the Haskanita military base in North Darfur on September 29, 2007.The attack resulted in the death of twelve UN peacekeepers and serious injury to eight others.* Abu Garda’s alleged crimes, which fall under article 25(3)(a) of the Rome Statute, include murder, pillaging, and directing an attack against a peacekeeping mission.

Closing statements were made on October 29th and 30th. The Legal Representatives of the Victims emphasized that the orphans, widows, and survivors of the attack could never be truly compensated for their losses. “Victims will always be victims, but to see that justice is done will give them some comfort,” said Akin Akinbote, one of the victims’ four Representatives.

Prosecutor Fatou Bensouda alleged that Abu Garda was responsible for planning and executing the attack, in which 1,000 armed URF rebels attacked a base manned by African Union peacekeeping troops. The Prosecution further argued that their evidence established Military Group Site (MSG) Haskanita’s protected status under international law at the time of the attack, and that its personnel and property were entitled to the protection accorded to civilians. They noted that the Defence had presented no evidence to contradict this assertion.

Karim Khan, Abu Garda’s Defence counsel, argued that his client was not responsible for the September 29, 2007 attack on Haskanita. He also argued that Haskanita did not enjoy protected status when the attack occurred.

The court has 60 days from October 30th to determine whether the evidence against Abu Garda is sufficient for the case to go to trial. Abu Garda is the first alleged war criminal to appear before the ICC for crimes in Sudan.


For further information, please click here and here.

Miscarriages of justice are likely to result from proposals to reduce legal aid fees to barristers, the chairman of the Bar Council has warned.

Desmond Browne QC said cutting defence barristers' fees by up to 23% would drive away experienced advocates from criminal trials in England and Wales.

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BBC NEWS | UK | Legal aid cut 'threatens justice'

In Case C-63/08, Virginie Pontin v T-Comalux SA (29 October 2009) the European Court of Justice (ECJ) ruled that a 15 day time bar on claims for wrongful dismissal due to pregnancy was to brief to meet the standard of the principle of effective judicial protection of an individual’s rights under Community law. Articles 10 and 12 of Council Directive 92/85/EEC of 19 October 1992 and Article 2 of Council Directive 76/207/EEC of 9 February 1976 provide the substantive basis for EU* protection of women’s rights particularly with respect to the workplace.* EU Directives set out binding policy goals to be implemented by the Member States leaving the means to those ends to be implemented by the Member States through national legislation. The Directives here set out goals for workplace safety, maternity leave, and prohibitions of dismissal of workers, as well as establishing redress mechanisms. In the case at bar the remedy under national law for wrongful dismissal was time barred after just 15 days from posting of notice of dismissal. The ECJ found that time bar likely too brief to meet the demands of the Pregnant Worker’s Directive, strongly implying the 15 day time limit in Luxembourgeois law failed to meet the demands of the general principle of effective judicial protection and therefore also implying that this very brief time delay was an inadequate implementation by the Member State (Luxembourg) of the EU Directives finding for plaintiff.

For more information:
Synopsis:
Full text of Case C?63/08.

The interim government of Honduras has filed a complaint against Brazil in the International Court of Justice (ICJ), the Court announced on October 29. The complaint arises from events surrounding the surprise return to Honduras of Manuel Zelaya, the deposed president, who entered the country on September 21 and took refuge in the Brazilian Embassy in Tegucigalpa. Specifically, Honduras charges that Mr. Zelaya and an unknown number of other Honduran citizens have been using the Embassy as a “platform for political propaganda” with the complicity of Embassy staff and thereby “threatening the peace and internal public order of Honduras.” Honduras has requested declaratory and injunctive relief from the ICJ.


The legal bases of Honduras’s complaint are Article 2 (7) of the UN Charter, which reserves to member states matters which are “essentially within [their] domestic jurisdiction,” and the 1961 Vienna Convention on Diplomatic Relations. As a practical matter, Honduras’s complaint is only one element of a broader political and diplomatic offensive aimed at preventing Mr. Zelaya from returning to power before the upcoming presidential elections scheduled for November 29. It is unclear whether the ICJ will agree to hear the complaint, which was filed by an interim administration that many international observers consider illegitimate. Current efforts toward national reconciliation may also determine whether the case goes forward.


For more information, please click here.

Pascal Lamy, Director-General of the World Trade Organization, recently released a statement describing the progress of the Doha Round and outlining plans for the continued negotiations in Geneva. Overall, Lamy reports that while the negotiations remain committed to their ambitions, there has been little tangible progress in the past week.* He also emphasizes that ambitions will be best served in the future through multilateral text-based negotiations.

In the area of Agriculture, members are discussing market access issues with regard to tariff caps and tariff-rate quotas, while also developing a template for scheduling commitments. Non-Agricultural Market Access (NAMA) deliberations are occurring in several different formats, with both text-based debate and open-ended discussion over non-tariff barriers (NTBs) to trade.

Services discussions will now focus on domestic regulation through intensified text-based negotiations. Meanwhile, the Rules Group is honing in on anti-dumping and subsidies guidelines as well as regional trade agreements (RTAs). Deliberation on geographic identifications (GIs) for wine and spirits will also be more focused as members address four specific questions posed by the chair to encourage progress.

A new trade facilitation agreement is under formulation as members work to consolidate General Agreement on Tariffs and Trade (GATT) Articles for further negotiation. Additionally, the Committee on Trade and Environment Special Session (CTESS) has allowed members to discuss environmental goods and services during a September workshop and is now encouraging members to highlight environmental goods of interest.

Small Group negotiations will continue on the Monitoring Mechanism for Special and Differential Treatment, occasionally requiring open-ended meetings for group debriefing. The Dispute Settlement Body (DSB) will now discuss post-retaliation and compliance, having addresses transparency, amicus briefs and remand earlier this year.

For further information, please click here.

CGPA Takes Legal Action Against UBM: Suing the Host of GDC China for Unfair
Practices in Competition

Howell International Trade Fair Ltd. and the China Game Publishers Association (CGPA) today confirmed that CGPA has sued United Business Media LLC ("UBM", London Stock Exchange: UBM.L) in Beijing for unfair competition. CGPA, the host of the Second China Game Developers Conference ("CGDC"), demands that UBM, who hosts GDC China, immediately cease its unfair practices of competition. On the same day, Howell
International Trade Fair Ltd. sued UBM in Beijing for its violation of the intellectual property rights of the first CGDC event. Both two organizations' lawsuits demand UBM resolve any negative effects brought about by the said practices and violation activities, make an open apology, rehabilitate the reputation of CGDC's host and compensate for the economic losses it has suffered. (Howell International Trade Fair Ltd. partnered with CGPA as managers of the aforementioned Second China Game Developers Conference.)

For more detailed information, please contact:

Mr. Tan Yunpeng
Tel: +86-10-5165-9355 x19
Fax: +86-10-8773-2633
Email: tanyp@howellexpo.com

SOURCE Howell International Trade Fair Ltd.; China Game Publishers Assoc.

Mr. Tan Yunpeng, +86-10-5165-9355 x19, +86-10-8773-2633, tanyp@howellexpo.com

The legality of the U.S. Government’s use of unmanned Predator drones to target militants in Afghanistan and Pakistan has recently come under increasing scrutiny, as a prominent U.N. representative called the American refusal to discuss the program “untenable”. Philip Alston, the U.N. Special Rapporteur for Extrajudicial, Summary, or Arbitrary Executions, made his remarks while reiterating requests for the U.S. to provide information on the legal rationale for its use of the drones, the mechanisms it uses to review the program, and the precautions it takes to make sure its air strikes conform with international law.


The debate over the legality of remote-controlled air strikes turns largely on the question of whether the American pursuit of terrorists represents an active armed conflict analogous to a conventional war between nations. As such, the debate over the drones is one example of the broader disagreement which has resulted from the application of international humanitarian law (IHL) to the “war on terror.” IHL, which regulates armed conflict between states, requires the existence of an active conflict, and only applies within the geographic limits of that conflict. Within these limits, IHL authorizes the killing of enemy combatants, including remotely, subject to limitations meant to assure that the use of force is necessary, minimally injurious to civilians, and proportional to expected military gains. Outside a zone of active conflict, however, IHL does not apply, and the U.S. ability to kill individuals without according them due process of law is restrained by a 1976 executive order against assassinations and, arguably, by international human rights law.


While some observers would call Afghanistan a zone of active conflict, far fewer would apply that description to Pakistan, and drones operated by the C.I.A. have been active in targeting militants there, including Taliban leader Baitullah Mehsud, who was killed in August. American drones have also targeted militants in Yemen. In extending IHL to cover these strikes, supporters of the program have argued for the application of IHL wherever terrorists are found, not merely within geographically bounded zones of conflict. This is a novel argument, and as such, the use of Predators to target individuals outside the “war zones” of Afghanistan and Iraq arguably represents a violation of international law. It also represents a sharp departure from pre-9/11 U.S. policy, when C.I.A. drones were limited to conducting surveillance and the U.S. Government criticized Israel for conducting targeted killings of Palestinian militants.


Supporters of the C.I.A. program have argued that, whether or not IHL applies to the air strikes, they are lawful under both the UN Charter and the 2001 Authorization for the Use of Military Force (AUMF) as a form of “anticipatory self-defense.” But opponents point to the principles of sovereign equality and non-intervention in the affairs of other states, arguing that individuals outside active war zones should be brought to justice through domestic processes of law. The question of whether the air strikes are proportional under IHL is also debated; the New Yorker reports that the effort to kill Baitullah Mehsud involved a series of 15 air strikes killing more than 200 other people. Finally, the loosening of geographic restrictions on state-sanctioned lethal force raises the uncomfortable prospect of an amorphous, global definition of conflict, which other states or non-state actors could potentially use to target Americans.


The practical value of the C.I.A. program is also debated. While the use of Predators has been credited with eliminating numerous Al Qaeda leaders and sowing confusion within the organization, it has also led to many civilian casualties, which has rallied anti-American sentiment in the very places where the U.S. is trying hardest to win “hearts and minds.” Another criticism of the program is that electing to kill terrorists rather than capture and interrogate them reduces the intelligence the U.S. can gather on its enemies; proponents of this argument point to the potential information value of Saad bin Laden, one of Osama’s sons, who was killed by a Predator strike in Pakistan. Finally, the recent inclusion of prominent Afghan drug traffickers on the list of acceptable targets has led critics to wonder whether there is any coherent policy limiting the use of the drones to individuals who pose a direct threat to the United States.


Whatever the legal and practical arguments for or against the use of unmanned air strikes against non-state actors, they are unlikely to end in the near future. In the rugged, inaccessible areas where many militants operate, the U.S. Government often believes that it has no good alternatives to the drones. Facing resistance to its plans to increase troop levels in Afghanistan, the Obama administration may make remote-controlled warfare an ever more central part of its counterterrorism strategy.


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by Dr. Jur. Eric Engle LLM

In Case C-386/08, (1) Advocate General(2) Bot delivered his advisory opinion to the European Court of Justice (ECJ). Bot argues that the ECJ should not extend full faith and credit (3) to the Israeli customs authorities as to the authenticity of documents of origin of goods from the occupied territories. As a consequence, Bot would impose no legal duty to accept as presumptively true(4) statements of the Israeli customs authorities regarding goods originating in the Israeli settlements in the occupied territories of the West Bank.(5) Israel asserts that goods originating in the occupied territories are Israeli and entitled to the benefits of the customs union agreement between Israel and the E.U. Though the E.U. has a customs union agreement with both Israel(6) and the P.L.O.,(7) the benefits of those agreements cannot extend to goods originating in the occupied territories unless certified by the P.L.O. Essentially, the Israeli settlements in the occupied territories fall outside of Israel-EU agreements coverage – and within the Israel-PLO agreement’s coverage. Had the certificate of origin issued from the relevant Palestinian authority the goods would almost certainly have enjoyed the exemption from custom’s duties.(8)

The case arose out of a preliminary reference to the ECJ from the German tax court (Finanzgericht) for Hamburg. Brita GmBH, a German company, contested the customs duties imposed by Germany on imported goods from settlements in the occupied territories.(9) The German court specifically asked whether the goods could be granted the benefit of the the EC-Israel or the EC-PLO agreement when certified as of Israeli origin by Israel.(10) The referring court believes that the goods, whether originating in Israel or Palestine, should be subject to the exoneration of customs duties.(11) The advocate general disagrees first, on the terms of the treaty,(12) and second because to do so would not respect the sovereignty of the relevant Palestinian authorities. The Advocate General analogizes this case to early E.C. caselaw(13) (Cyprus(14)) where a result similar to the one he advocates was found.

The Opinion, which seems persuasive, will likely influence the ECJ’s impending final decision. It is not without implications for regional stability. Free trade makes war less likely by encouraging prosperity and interdependence, by breaking down isolation. To that end, the E.U. established a partnership with the countries of the Mediterranean basin to create free trade and encourage democracy and human rights’ protection(15) via bilateral agreements following a uniform model providing for free trade.(16) For the ECJ to grant the exemption of customs duties based on Israeli rather than Palestinian authority would be an act of de facto recognition of the legitimacy of the Israeli occupation as well as ignoring the plain meaning of the treaty. Hopefully the Israeli and Palestinian authorities will coordinate and resolve their differences, somehow.

Notes

(1) Brita, GmbH v Hauptzollamt Hamburg Hafen, 29/Oct./2009 Available at: http://curia.europa.eu/jurisp/cgi-bi...umaff=C-386/08 (Opinion) (Hereafter: Brita, A.G.)


(2) The Advocate General is a post which has no real parallel in U.S. law. The Advocate General writes advisory opinions which can be analogized to an “amicus curiae” brief. The ECJ may or may not take the Advocate General’s opinion into account and may or may not use in reaching its final verdict. The Advocate General’s opinion has no binding authority.


(3) Brita, A.G., para. 75-77. The decision does not however use the U.S. term “full faith and credit” however the conceptual shorthand analogy holds.


(4) Brita, A.G., Para. 83-84.


(5) A similar analysis would apply to goods originating in the Gaza strip.


(6) OJ 2000 L 147, p. 3, the ‘EC-Israel Agreement’.


(7) OJ 1997 L 187, p. 3, the ‘EC-PLO Agreement’. Article 73 of the agreement states that it is to apply to the territories of the West Bank and the Gaza Strip.


(8) Brita, A.G., para. 134.


(9) Brita, A.G., para. 2.


(10) Brita, A.G., para. 5.


(11) Brita, A.G., para. 106.


(12) Brita, A.G., para 108, citing Article 83 of the EC-Israel Agreement.


(13) Anastasiou, Case C 432/92 [1994] ECR I 3087.


(14) Agreement annexed to Council Regulation (EEC) N° 1246/73 of 14 May
1973 (OJ 1973 L 133, p. 1, the ‘EEC-Cyprus Agreement’).


(15) Brita, A.G., para. 9, 10.


(16) Article 8 of the EC-Israel Agreement provides that ‘customs duties on imports and exports, and any charges having equivalent effect, shall be prohibited between the Community and Israel. This shall also apply to customs duties of a fiscal nature’.

On Thursday, the European Court of Human Rights (ECtHR) released its ruling on three cases concerning disappearances in Chechnya. In one of the cases, the victim, Mayrudin Khantiyev, had been abducted from his home by a group of masked men. In the other two cases, the victims, Yusup Satabayev and Kazbek Vakhayev, disappeared while in Russian detention. In all three cases, the Court rejected Russia’s arguments that the men had not been under Russian control at their time of disappearance and awarded the victims’ families a combined total of 130,540 euros for Russia’s violations of the victims’ rights under the European Convention on Human Rights.

These cases fall in a steady stream of petitions to the Court concerning events in Chechnya—by some estimates up to 400. The Court has already issued judgments in over 100 of these cases and has developed evidentiary presumptions for the Chechen context, which it applied to the cases at hand.

For example, the Court has before held that it will draw a negative inference from Russia’s refusal to turn over investigative reports—despite the fact that Russia’s domestic law bans the government from doing so. The Court relied on such an inference to reject Russia’s claims that Satabayev and Vakhayev had been released from Russian detention before they disappeared. Furthermore, the Court made reference to factual presumptions arising from Russia’s “exclusive control” of the area from which Khantiyev was abducted—as well as Russian guards’ “blatant passivity” in response to the event—in rejecting Russia’s contention that Khantiyev’s abductors had not been Russian agents.

In analyzing claims relating to the victims’ right to life, the Court referred to a much stronger evidentiary presumption, which it first developed in the 2006 case of Imakayeva v. Russia: “[I]n the context of the conflict in the Chechen Republic, when a person is placed in detention without any subsequent acknowledgement of the detention, this can be regarded as life-threatening.” In other words, the Court will presume someone dead when it is established that they disappeared under Russian control.

Ole Solvang, the Executive Director of Russian Justice Initiative, suggests that such victim-friendly evidentiary presumptions have developed in the Chechen disappearance context due to the fact that “[t]he frequent lack of evidence concerning the fate of the victim and the identity of the perpetrators makes it difficult for a court to hold individuals responsible for the disappearance of a person.” The problem is also widespread, with a Human Rights Watch (HRW) report from 2005 already estimating that some 5,000 people had disappeared in Chechnya at the hands of military and security forces since the outbreak of hostilities in 1999—occurrences that in the aggregate HRW calls a crime against humanity.

HRW’s allegations, based not on human rights law but rather on the laws of armed conflict or international humanitarian law (IHL), remind us that the line of Chechen cases before the ECtHR are part of a larger trend of victims of wartime atrocities turning to human rights tribunals to air their claims in the absence of effective enforcement for the laws of war. Last summer’s armed conflict in South Ossetia, for example, has given rise to a flurry of additional cases before the ECtHR as well as a claim by Georgia before the International Court of Justice (ICJ) that Russia’s actions violated the Convention on the Elimination of Racial Discrimination—a case that the ICJ accepted on the bases of the Convention even though it would not have been able to hear it without Russia’s consent had it been brought under IHL.

There are different views on the merits of translating wartime activities into claims under human rights instruments designed for peacetime, but one result of the trend is clear from the ECtHR’s treatment of the Chechnya cases. While IHL generally applies different law to different individuals based on their status as a civilian or member of an armed group, human rights courts seem generally willing to substitute their functional tests that look beyond membership to the individual characteristics of the victim. In the present three cases, for example, the Court made no distinction between Satabeyev, who had been a member of a rebel group, and the other two victims, who had not.

In other cases, the Court has further proved willing to enforce the protections provided by human rights law even when IHL would explicitly have offered lesser protection. For example, in the 1996 case of Bazorkina v. Russia, the Court found that a rebel detained while in active combat enjoyed the extensive procedural rights afforded by the Convention—as opposed to the low level of protection provided to combatants in non-international armed conflicts by Article 3 common to the 1949 Geneva Conventions.

With some 300 cases still pending before the ECtHR on the Chechen conflict alone, as well as new cases from the South Ossetian conflict now on the dockets of the ECtHR and ICJ, it is unlikely we will soon see the end of war victims turning to human rights law for reparation. Hopefully international human rights law can help to prevent such incidents in the future.


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By Daniel Purisch, edited by Eric Engle

Many of the acts that the former Serb leader in Bosnia, Radovan Karadzic, is accused of committing happened over fifteen years ago. No reason, it seems, we can’t wait another day to start the genocide trial against him, eh?

The one-day delay for the trial’s opening — from Monday to Tuesday — was the result of Karadzic’s boycott of the trial’s opening. That said, the court said the prosecution would open its case on Tuesday, regardless of whether Karadzic showed up. Click here for the WSJ story; here for the Bloomberg story; here for the AP story.

Karadzic has been in detention in The Hague since he was discovered in Belgrade last year, in disguise and practicing alternative psychiatric medicine. He has refused to be represented in court by a lawyer.

He is charged with 11 counts of war crimes, including two of genocide. The charges relate to Srebrenica, the site of a 1995 massacre of Bosnian Muslims; the siege of the Bosnian capital Sarajevo between April 1992 and November 1995; and the taking of United Nations hostages in 1995 to dissuade the North Atlantic Treaty Organization from air strikes.

The judge made it clear in a statement that he had already warned Karadzic he would either continue the trial without him, sending transcripts and tapes to his cell, or would impose counsel if he continued to insist he will only attend the trial when he feels he is ready.

So what is likely to be Karadzic’s strategy? According to the Journal, Karadzic looks set to try to string the proceedings out and turn them into an inquest into the role of the West in the war, according to lawyers familiar with the case. The strategy was applied by former Serb leader Slobodan Milosevic, who stalled proceedings and used the courtroom as a bully pulpit to showcase his views on the wars in Balkans. The Journal reports that such political theater played well on television back home in Serbia.

“Karadzic is playing for the pages of history. His audience is in Bosnia and Serbia, he doesn’t care about the judges,” said Marko Milanovic, a lawyer with the Belgrade Center for Human Rights, who closely follows the trials at the International Criminal Tribunal for the former Yugoslavia.

That said, in pretrial submissions and hearings, Karadzic has already given some hints that he plans to challenge prosecutors’ assertions on the number of people allegedly killed at Srebrenica. .

“The true death toll at Srebrenica was five times less than what people say, and those who died were military,” said Svetozar Vujacic, who leads Mr. Karadzic’s defense team. Asked how he knew that information without access to the DNA data, Mr. Vujacic said: “we have proof.”