Robert C. Koons at Public Discourse: It would be wrong for the United States to engage at this time in an attack on Iran or to participate substantially in an Israeli action.
Christian Newswire: Ave Maria School of Law (AMSL) announced today that the inaugural issue of the International Law Journal has been published.
Noah Feldman at Bloomberg: Today, however, such advice is treated as a national scandal. Justice Ruth Bader Ginsburg has spent the last two weeks in hot water for telling an Egyptian TV interviewer that Egypt might do better to emulate the up-to-date South African constitution rather than our 223-year-old model.
Ilya Somin at the Volokh Conspiracy: Conservative columnist Jeff Jacoby has a good article today on the somewhat overwrought criticism of Justice Ruth Bader Ginsburg for saying, in Cairo, that the US Constitution is not a good model for other countries in 2012. As Jacoby points out, conservative Justice Antonin Scalia recently actually said that “[t]he bill of rights of the former ‘evil empire,’ the Union of Soviet Socialist Republics, was much better than ours,” without raising any such hackles.
If you happen to be around Charlottesville tomorrow, Friday, February 10, you might want to come over to a symposium on how to resolve conflicting legal norms in US and foreign courts . . .
News from The Associated Press: British judges Wednesday gave the government four weeks to obtain the release of a Pakistani man held in U.S. custody in Afghanistan – a ruling that could make for prickly discussions between Britain and the U.S.
Legal Periodical: Acculturation Through the Middle Ages: The Islamic Law of Nations and its Place in the History of International Law
Allain, Jean, Acculturation Through the Middle Ages: The Islamic Law of Nations and its Place in the History of International Law (October 10, 2011). Available at SSRN: http://ssrn.com/abstract=1941775
LifeSiteNews.com: Speakers included HLI President Fr. Shenan Bouquet, Brazilian pro-life activists Fr. Paulo Ricardo de Azevedo and Fr. Lodi da Cruz, Alliance Defense Fund Senior Counsel Piero Tozzi, Ecuador’s Fr. Juan Carlos Chavez, and LifeSiteNews’ Latin America Correspondent Matthew Cullinan Hoffman, among many others. It was organized by Felipe Nery, director of the St. Benedict School at the same monastery.
Video: Piero Tozzi speaks at Human Life International’s Second International Congress for Truth and Life in Brazil
Turtle Bay and Beyond – International Law, Policy, and Institutions has embedded the video.
Catholic News Agency (CNA): “This is (the) strategy of the opposition – manipulate the truth by claiming that there is a global right to abortion and repeat it over and over again,” said Piero A. Tozzi, senior legal council at the Alliance Defense Fund, in a speech to Human Life International’s Second International Congress for Truth and Life. “Repeated enough, perception becomes reality,” he warned, as he described the attempt to raise non-binding statements about abortion “rights” into “something that must be followed and obeyed.”
Second Union News: (translated from Portuguese by Google) To counter what some pro-abortion groups that practice anti-life must be approved in Brazil because of international agreements that the woman’s right to propose Dr. Piero Tozzi of the Alliance Defense Fund in the U.S., offered a lecture at the Second Congress Life for Justice and Human Life International in Sao Paulo this weekend, which ensured that there is no international law requiring the approval of abortion and that this is not a “right” reproductive.
ADF Attorney Piero A. Tozzi at Turtle Bay and Beyond – International Law, Policy, and Institutions: My colleague Susan Yoshihara recently posted on the browbeating Ireland has taken for its constitutional protection of unborn children during that country’s Universal Periodic Review. Norway – the “Pickled Herring” in the above caption – demanded that Ireland “bring its abortion laws in line with the [International Covenant on Civil and Political Rights].”
TriplePundit.com: Europe’s highest court released an opinion on October 6th, finding that the proposed mandatory inclusion of non-European based airlines in the European Emissions Trading Scheme (ETS), is compatible with international law.
Telegraph Blogs: The UN plumps for the rights of women over the rights of the unborn.
C-Fam: It is commonplace now for UN officials and American law professors to tell foreign governments that they are required by international law to liberalize their abortion laws . . . Enter the San Jose Articles, which were launched today in the UN press briefing room at UN headquarters in New York. Professor Robert George told UN press and observers that the San Jose Articles were drafted for the purpose of helping government officials fight back against such assertions.
Spero News: The IACHR concluded Chile’s courts impermissibly violated the American Convention on Human Rights by denying Atala custody because of her “sexual orientation.” The commission’s non-binding decision is now before the Inter-American Court of Human Rights, which has authority under the American Convention on Human Rights to issue binding rulings. On Sept. 8, the Alliance Defense Fund submitted a carefully-researched amicus legal brief to the Court detailing four fundamental flaws in the IACHR’s findings. [ADF brief quoted]
The Denver Post: In 2007, the ACLU filed the case with the Inter-American Commission on Human Rights, a seven-member panel that issues opinions and recommendations, but has no legal authority to overturn the Supreme Court’s decision.
Butculescu, Claudiu Ramon, International Law – Vector to Uniformization of Legal Cultures (May 1, 2010). Studii de Drept Românesc – Serie Nouă, Vol. 22, No. 55, 2010. Available at SSRN: http://ssrn.com/abstract=1903974
LifeNews.com: However, these assertions have no support in international law, either by treaty or custom. Piero Tozzi, a senior legal counsel with the Alliance Defense Fund told the Friday Fax, “No ‘right’ to abortion exists in international law. Consistent with international treaties and customary norms, nations can (and should) protect the unborn child. UN bodies and outside actors grossly exceed their competence when they demand that sovereign nations alter their domestic laws protecting the unborn, and states should categorically reject such unwarranted claims.”
CNS News on Fox Nation: Y-PEER, a youth initiative of the United Nations Population Fund (UNFPA), has issued a call to make access to abortion and contraception an international human right for children as young as 10 years old.
LifeNews:In Poland, a nation-wide grassroots effort has lead to the proposal of bold, new legislation aimed at removing all exceptions to the country’s abortion laws thus protecting children from the moment of conception.
The Washington Post: U.N. High Commissioner for Human Rights Navi Pillay said Friday the Texas execution of Humberto Leal “raises particular legal concerns,” including whether he had access to consular services and a fair trial.
Chris Strohm at The Atlantic: The case of a Mexican man scheduled to be executed on Thursday in Texas threatens to disrupt U.S. diplomatic relations abroad and creates a politically volatile dilemma for Republican Gov. Rick Perry, who is considering a run for president. Unless Perry or the U.S. Supreme Court intervenes to stay the execution, Texas plans to execute Humberto Leal Jr. at 6 p.m. Central Time for the 1994 murder of 16-year-old Adria Sauceda.
Catholic Culture: Cardinal Juan Sandoval Íñiguez of Guadalajara has condemned the swift approval of a constitutional amendment that bans discrimination on the basis of “sexual preference.”
C-FAM: The UN bureaucracy is increasing its efforts to decriminalize homosexual behavior and normalize its acceptance among member states, without governmental consent or consensus.
So to combat this terrible scourge and break the cycle of fear and violence, we must work together to improve education and support those who stand up against laws that criminalize love and promote hate.
Legal Periodical: “Verbal Poison–Criminalizing Hate Speech: A Comparative Analysis And A Proposal For The American System”
Reuters on Yahoo: The United Nations’ top human rights official called on the United States Tuesday to give the U.N. details about Osama bin Laden’s killing and said that all counter-terrorism operations must respect international law.
Book Review: Schools for Misrule: Law schools wield more social influence than any other part of the American university. To what effect?
John O. McGinnis at the Wall Street Journal: In “Schools for Misrule,” Walter Olson offers a fine dissection of these strangely powerful institutions. One of his themes is that law professors serve the interests of the legal profession above all else; they seek to enlarge the scope of the law, creating more work for lawyers even as the changes themselves impose more costs on society. By keeping legal rules in a state of endless churning, lawyers undermine a stable rule of law and make legal outcomes less predictable; the result is more litigation and, not incidentally, more billable hours for lawyers, who must now be consulted about the most routine matters of business practice and social life. | Hat tip: David Bernstine at the Volokh Conspiracy.
Douglas J. Feith writes at the Wall Street Journal (full text via Google): Mr. Obama has the constitutional authority to make his own detainee policy. And, if he wants to, he can issue a regulation or an executive order using principles from Article 75. But the Constitution does not empower him to recognize as a legal obligation a part of a treaty that the Senate has never approved.
Rep. Sandy Adams writes at the Washington Times: “In recent years, Supreme Court justices have interjected international law into their rulings, creating an environment of disregard for national sovereignty and threatening the institutions put in place by our forefathers.”
Human Events: “A legislative initiative aimed at preventing ‘a court or other enforcement authority’ from enforcing foreign law in the Palmetto State was introduced today in both the S.C. House and Senate by Rep. Wendy Nanney (who drafted the bill) and Sen. Mike Fair respectively, who say the bill will preempt violations of a person’s constitutional rights resulting from the application of foreign law.”
Religion Clause: “In an important ruling in X v. Mid Sussex Citizens Advice Bureau, (EWCA, Jan. 26, 2011), the England and Wales Court of Appeal held that volunteers are not covered by the EU directives requiring equal treatment in employment and occupation.”
American Freedom Alliance Conference: The rise of lawfare, the politicization of international law, and the challenges to U.S. sovereignty
The Rise of Lawfare, the Politicization of International Law and the Challenges to U.S. Sovereignty
Eugene Volokh writing at The Volokh Conspiracy: “That’s the issue lurking in In re Aramco Servs. Co., now on appeal to the Texas Supreme Court . . . The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslims or Saudi citizens.”
Yuksel Sezgin, How to Integrate Universal Human Rights into Customary and Religious Legal Systems? (December 25, 2010). Journal of Legal Pluralism, Vol. 60, 2010. Available at SSRN: http://ssrn.com/abstract=1731162
“Customary religious legal systems have been utilized in various areas from fighting against crime to such mundane affairs as setting the price of goods and services in the market place or regulating personal and familial relations. Against this background, the present study will exclusively focus its lenses on so-called personal status systems as quintessential example of customary religious legal systems in the contemporary world. In this context the article will first address the question of why modern nation-states (e.g., Israel, Egypt, and India) still continue to employ pluralistic personal status systems and differentiate among their citizens despite the fact that they were originally founded on premises of non-discrimination and equal treatment. Secondly, the study will explain how pluralistic organization of law and justice affect the fundamental rights and freedoms of individuals living under such systems; how they cope with limitations imposed upon their rights by communal/religious institutions; and what tactics and strategies they use to navigate through the maze of personal law. Lastly, after demonstrating what approaches have been successfully used to bring about changes in the context of Israeli, Egyptian, and Indian personal status laws, the paper will identify key lessons and recommendations for the purpose of helping human rights activists, donors and members of programmatic communities who design intervention mechanisms and tools to incorporate universal human rights standards into customary and religious systems around the world.”
Times of Malta: “Malta’s strict anti-abortion laws will not be affected by the recent judgment of Europe’s supreme court relating to abortion in Ireland, according to a Maltese judge who sat on the case.”
Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of US Law
“Part I provides a background on the concepts of ‘territoriality’ and ‘extraterritoriality,’ the landmark decisions of U.S. courts considering the extraterritorial application of U.S. law, and the customary international law of jurisdiction. Part II critiques the current extraterritorial jurisdictional framework as generally applied by U.S. courts today. It focuses on how the uneven application of the presumption against extraterritoriality ends up ensnaring judges in a highly subjective interpretive process that is inconsistent with the certainty and predictability needs that largely justify having jurisdictional rules. Part III sets forth the case for a rule of dual illegality to govern U.S. courts in deciding whether–in the absence of instruction from Congress–U.S. law should apply to criminalize or regulate conduct that occurs in foreign states. It demonstrates how a dual-illegality rule can work as it already has in the extradition context and responds to potential objections.”
The ABC’s of an International Right to Abortion
“This paper will examine the various sources of international law to see if they contain a ‘right’ to abortion. The first section will look at the premier human-rights document, the Universal Declaration of Human Rights (hereafter, the ‘Declaration’), as well as the International Covenant on Civil and Political Rights (hereafter, ‘Covenant’), a treaty which implements the Declaration, to see if they contain a right to abortion. The second section will examine evidence of ‘customary international law’ in search of a ‘right’ to abortion. The third section will outline the case (in which the author is a consultant) that was heard in December 2009 by the ECHR, ABC v. Ireland, in which plaintiffs argue an international right to abortion exists that trumps Ireland’s constitutional protection of the unborn.”
International Law Reporter: “Anne T. Gallagher has published The International Law of Human Trafficking (Cambridge Univ. Press 2010). Here’s the abstract . . . ”
OneNewsNow: “A Senate Judiciary subcommittee recently held a hearing on the U.N. Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). The treaty was signed some 30 years ago by former President Jimmy Carter, but was never ratified by the Senate. According to Home School Legal Defense Association (HSLDA) attorney Will Estrada, if CEDAW is ever ratified by the U.S., the government will have the ability to regulate education under the guise of eliminating gender bias.”
European Parliament’s Intergroup on LGBT Rights: “Today the European Union’s Fundamental Rights Agency released an updated EU-wide legal analysis: Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity. The Parliament had previously asked the Agency to analyse the legal situation for lesbian, gay, bisexual and transgender people in the European Union.”
Irish Times: “The policy of removing a child from class during religious instruction without offering them an alternative class may not be in compliance with the State’s obligations to various international institutions, according to the Irish Human Rights Commission.”
UN General Assembly Committee passes new version of resolution urging nations to forbid defamation of religion
Ilya Somin writing at The Volokh Conspiracy: “The United Nations General Assembly Third Committee recently passed another resolution urging nations to ban defamation of religion [HT: Elizabeth Cassidy of the US Commission on International Religious Freedom, which criticized the resolution here] . . . As I have pointed out previously, this is an excellent example of the ways in which repressive governments seek to use international human rights law to suppress freedom rather than protect it, a problem I have written about in two articles coauthored with John McGinnis (see here and here). Most of the support for this resolution comes from authoritarian and repressive regimes, many of which have terrible records on religious freedom.”
“Today the European Parliament voted in favour of a report calling for mutual recognition of civil status documents. This means that the current discrimination against same-sex couples in the form of non-recognition of their marriages/partnerships should be removed when a same-sex couple is exercising their freedom of movement within the European Union.”
Reuters: “Russia’s top judge said it may no longer honor judgments handed down by Europe’s influential Court of Human Rights, but a Kremlin official played down the idea, calling it a ‘backwards’ step.”
Associated Press: “A federal judge on Monday said she would rule by the end of the month on a lawsuit challenging an Oklahoma constitutional amendment that would prohibit state courts from considering international or Islamic law when deciding cases.”
Selwyn Duke writing at The New American: “While Americans are thinking about turkey and the TSA (and turkeys in the TSA), as is often the case, the most destructive governmental shenanigans are occurring behind the scenes. On Thursday, November 18, the Senate held hearings on the UN’s Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a treaty that could be used to justify sweeping social engineering across the nation.”
Washington Times: “A federal judge will hear arguments Monday on a preliminary injunction against one of the most contentious ballot measures in this month’s elections — an Oklahoma referendum that banned state courts from considering international or Islamic law when deciding cases.”
Associated Press: “International sports officials are completing guidelines on how to deal with athletes with ambiguous sexual characteristics.”
PRNewswire: “U.S. Border Control and U.S. Border Control Foundation filed an Amicus Curiae brief in the United States District Court for the Western Division of Oklahoma in opposition to the Plaintiff’s motion for a temporary restraining order (TRO) to stop certification of a constitutional amendment, State Question 755.”
LifeNews: “The Senate Judiciary Committee will hold a hearing on Thursday on the CEDAW treaty that has been used to pressure nations to legalize abortions. While the treaty is meant to promote women’s rights, United Nation’s agencies have used it to promote abortion.”
Rex D. Glensy, The Use of International Law in U.S. Constitutional Adjudication (August 15, 2010). Emory International Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1701508
“This Article seeks to untangle part of the debate concerning the use of international law as persuasive authority within the context of U.S. constitutional interpretation. It begins by noting that international law is being used comparatively within the framework of constitutional analysis but such usage lacks structure and context. It then posits that U.S. courts should only use international law as persuasive authority when this fits within the goals of the comparative enterprise. By combining comparative theory and historical practice, the Article concludes by proposing a methodology for employing international law as persuasive authority by U.S. Courts.”
Marci A. Hamilton writing at FindLaw: “Most Americans understand Sharia law to be the motivating doctrine behind the violently radical Islamicists, and one can hardly fault the Oklahomans for seeking to build a legal barrier around their state to keep terrorism out. While the prohibition on the use of international law also presents interesting issues, I will focus here on the Sharia law prohibition. It is problematic.”
Politico: “In a nine-page order released Tuesday, U.S. District Court Judge Vicki Miles-LaGrange said she was persuaded that a constitutional amendment known as State Question 755 seemed to have a legally improper religious purpose and posed a threat to violate the rights of Muslims . . . ”
Ed Whelan comments at Bench Memos.
Eugene Volokh writing at The Volokh Conspiracy: “I’m no fan of the amendment, which would also apparently ban the use of foreign law in Oklahoma courts, even in situations — such as disputes about whether two people were validly married in a foreign country, enforcement of contracts that provide for the use of (say) British law, and tort litigation over conduct that happened in a foreign country — where foreign law has long been used under standard choice-of-law principles. And it’s also possible that the specific ban on the use of Sharia law might be unconstitutional, though that depends on exactly how the amendment is interpreted. But my tentative sense is that the plaintiff doesn’t have standing to challenge the ban on the use of Sharia.” | More from Volokh on standing.
Ed Whelan writing at National Review / Bench Memos:”Here’s the judge’s opinion . . . I don’t see how the plaintiff’s proffered evidence shows that the amendment’s ‘actual purpose is to disapprove of plaintiff’s faith.’”
Tulsa World: “A federal judge on Monday issued an order temporarily blocking certification of the election results for a state question banning the use of Shariah law.” Article includes video.
USA Today (AP): “Joseph Thai, a professor at the University of Oklahoma’s College of Law, said the ballot measure is ‘an answer in search of a problem.’ ”
PR Newswire: “The Oklahoma chapter of the Council on American-Islamic Relations (CAIR-OK) today announced the filing of a lawsuit that claims an anti-Islam state ballot measure (SQ 755) passed in Tuesday’s election violates the U.S. Constitution.” (links to relevant documents)
KJRH: “The Center on American-Islamic Relations or CAIR is organizing a news conference at the state Capitol on Thursday afternoon. The group says it’s supporting a citizen who is filing a federal lawsuit regarding a constitutional amendment Oklahomans passed on Tuesday.”
Law Review: The Current State of International Law Concerning the So-Called Right to Abortion and Intervention by the Holy See
Thomas Venzor, Protecting the Unborn Child: The Current State of International Law Concerning the So-Called Right to Abortion and Intervention by the Holy See (October 21, 2010). Nebraska Law Review, Vol. 89, 2011. Available at SSRN: http://ssrn.com/abstract=1695703
“This paper proposes that there are three areas where the ‘right’ to abortion might be invoked (i.e., mother’s life; preservation of the mother’s health; mother has suffered rape or incest). Outside of these three situations, any legal notion that access to abortion ought to be a human right is mostly unfounded and, perhaps, wishful thinking. Furthermore, although these three situations would hold the best argumentative grounds for a right to abortion, it remains difficult to claim that these situations would actually qualify to the extent of a right under international law.”
Washington Blade: “Michael Guest, former U.S. ambassador to Romania, headed a delegation of about 25 U.S. diplomats during the human rights portion of an annual review conference for the Organization for Security & Cooperation in Europe. The review conference took place between Sept. 30 and Oct. 8 in Warsaw, Poland.”
LifeSiteNews: “The push in recent years to establish abortion as an international “human right” flies in the face of international human rights law that springs from the natural law and the world’s response to the Nazi atrocities, John Smeaton, head of the UK’s Society for the Protection of Unborn Children, told an international conference last week.”
Anne Bayefsky writing at National Review Online: “George Soros’s enormous gift of $100 million to the non-governmental organization Human Rights Watch is a serious shot across the bow for Republicans and conservatives . . . The significance of his gift can be understood only by appreciating the web of connections associated with this human-rights organization and its resulting influence . . . Soros has recognized what Republicans ignore at their peril — namely, the power of human-rights claims, legitimate or not. Soros, logged as one of President Obama’s frequent White House guests, appreciates that a human-rights mantra, particularly when amplified with the U.N.’s global megaphone, is a formidable tool for manipulating public policy. A tool, mind you, and not a principle.”
Dermot Groome, The Church Abuse Scandal: Were Crimes Against Humanity Committed? (August 15, 2010). Chicago Journal of International Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1677898
“This paper considers that question in the context of a report issued by the Ryan Commission, an independent quasi-judicial commission that spent 10 years conducting detailed investigations into childcare institutions operated by Catholic religious congregations in Ireland. The Ryan Commission’s findings with respect to both widespread physical and sexual abuse provide a factual basis upon which to consider whether crimes against humanity were in fact committed. Contrasting the intentionality of behind excessive physical violence with the recklessness of allowing known pedophiles access to children highlights an important definitional requirement of crimes against humanity, that such not only be widespread and systematic – which both clearly are – but that such be in the context of an attack directed against a civilian population. While the systematic use of excessive corporal punishment to control children committed to industrial schools constitutes an attack upon them, the systematic cover-up of sexual abuse to prevent public scandal thereby causing widespread sexual abuse raises the question of whether an ‘attack’ on a civilian population can be the result of criminal recklessness.”
Law Review: The Legitimacy of International Human Rights Review: The Case of the European Court of Human Rights
Andreas Follesdal, The Legitimacy of International Human Rights Review: The Case of the European Court of Human Rights (December 1, 2009). Journal of Social Philosophy, Vol. 40, No. 4, pp. 595-607, Winter 2009. Available at SSRN: http://ssrn.com/abstract=1652238
“The literature concerning judicial review reveals a long list of misgivings of such constraints on domestic democratic decision making. Of concern here are some of the principled objections against the practice of international judicial review of human rights, using the European Court of Human Rights (ECtHR) as a suitable case.”
International Law Reporter: “Jonathan G.S. Koppell (Arizona State Univ. – Public Affairs) has published World Rule: Accountability, Legitimacy, and the Design of Global Governance (Univ. of Chicago Press 2010). Here’s the abstract: . . . ‘Analyzing four aspects of GGO organization in depth—representation and administration, the rulemaking process, adherence and enforcement, and interest group participation—Koppell describes variation systemically, identifies patterns, and offers explanations that link GGO design to the fundamental challenge of accountability in global governance.’”
Prabhakar Singh, How Should the Third World See Constitutionalism in International Law? (July 20, 2010). Available at SSRN: http://ssrn.com/abstract=1645720
“A survey of international law scholarship throws up three kinds of approaches: constitutional, pluralistic and global administrative law (GAL). What is there for the Third World to choose? Both international law and constitutional law are colonial gifts. India in particular and Third World in general is slightly obsessed with a constitutional imagery as seen in the India-Quantitative Restriction Case at the World Trade Organisation (WTO). Therefore, it depends; Chimni approaches GAL from a Third World perspective (TWAIL) whereas Koskenniemi prefers constitutionalism. Constitutional vocabularies are often used to address the United Nations (UN) Charter, the WTO, and the European Union (EU). The diversity of legal regimes presents a problem of harmonisation within the monism-dualism ideology of international law. With the increasing assertion of the EU as a strong dualist normative laboratory, new scholarship is replacing constitutionalism by pluralism as the preferred but defensive ideology – the definition of constitutionalism stands upside down now. After the European Court of Justice (ECJ)’s Kadi judgement, pluralism and constitutionalism stand in opposite camps. This paper attempts to address this international constitutional confusion. It ends on an open note: there are issues that cannot be concluded and constitutionalism as an ideology remains, as is often the case, a non-concluded question for an eternally observing Third World.”
C-FAM: “A report released last week by the human rights advocacy group Human Rights Watch promotes abortion in Argentina and criticizes Argentina for not complying with international law . . . The report erroneously cites several international human rights treaties and committees . . . for its claim that international law requires Argentina to provide abortion-on-demand. In fact, no international human rights treaty contains a right to abortion. When CEDAW and ICCPR were negotiated, many of the negotiating countries had pro-life laws on the books that still remain in place today.”