Georgia Law Professor Milot calls on global drugs regulators to focus on athlete health, not punishment

Milot profileSports doping is much in the news with the start of the Olympics and Paralympics at Rio de Janeiro, Brazil. Numerous commentators call for stricter regulations; staking out a different position is Georgia Law Professor Lisa Milot, formerly a high-level junior cyclist and now a scholar on law and performance-enhancing drugs. In a Vice Sports article by Patrick Hruby entitled “The Drugs Won: The Case for Ending the Sports War on Doping,” Milot says:

“Athletes are risk-takers. There’s no way to get to the international level of sports without being willing to put your body on the line on a regular basis.”

The article discusses Milot’s position, advanced in her 2014 article “Ignorance, Harm, and the Regulation of Performance-Enhancing Substances,” published in the Harvard Journal of Sports & Entertainment Law. She argues that regulators should concentrate on reducing the harm from substances, rather than banning them altogether. She tells Hruby:

“What we should be doing now is gathering information in order to understand how these substances work on healthy bodies. Focusing on that, rather than punishment.”

On punishment, current news indicates that even international organizations charged with regulating global sports appear to disagree:

► The Montreal-based World Anti-Doping Agency, “established in 1999 as an international independent agency composed and funded equally by the sport movement and governments of the world,” issued a report calling for a blanket ban on Russian athletes at the Olympic Games, which opened Friday and go through August 21.

► The International Olympics Committee, the 122-year-old organization headquartered in Lausanne, Switzerland, has taken a much more measured approach, banning some but by no means all such athletes.

► The International Paralympic Committee, based in Bonn, Germany, banned Russia’s team en masse from its event, set to begin on September 7, no long after the Olympic Games wrap up.

► Meanwhile, athletes from a host of countries have been cited for positive drug tests, or tarred with suspicion that their achievements have been chemically enhanced.

This tangle makes both Hruby’s article and Milot’s scholarship must-reads.

GJICL publishes “Children and International Criminal Justice” issue

gjicl43_3

Very pleased to announce that papers from a Georgia Law conference “Children & International Criminal Justice” have just been published by our Georgia Journal of International & Comparative Law.

The conference was cosponsored by Dean Rusk International Law Center and the Georgia Law Project on Armed Conflict & Children, as well as the university’s African Studies Institute, the Planethood Foundation, and the American Society of International Law-Southeast.

About 2 dozen experts came to Athens, Georgia, from as far as Doha and Kinshasa, to discuss the topic at hand. In so doing, they assisted in the preparation of the International Criminal Court Office of the Prosecutor Policy on Children. As detailed in recent posts, available here and here, the public comment period for the draft of that Policy continues through August 5, 2016, with launch of the final document set for mid-November.

bensouda_me2_28oct14cropA keynote speech by ICC Prosecutor Fatou Bensouda (at right) highlighted our conference, and the text of her speech headlines the edition. Other writings link the work of the ICC to the 1989 Convention of the Rights of the Child, examine the experiences of children in armed conflict and similar situations. Student rapporteurs’ accounts of expert breakout sessions additionally treat a range of issues. All these papers contributed significantly to the Policy process.

The edition concludes with students’ notes apart from the conference; one of these, for which I was honored to serve as faculty adviser, examines the issue of child marriage.

Here, in full, is the table of contents for Volume 43, issue 3, with PDF links to each article:

Children and International Criminal Justice Conference

“Convening Experts on Children and International Criminal Justice,” by yours truly, Diane Marie Amann (above, at left), Associate Dean for International Programs & Strategic Initiatives and Emily & Ernest Woodruff Chair in International Law, and also Prosecutor Bensouda’s Special Adviser on Children in & affected by Armed Conflict

“Children and International Criminal Justice,” by Fatou Bensouda (above, at right), Prosecutor of the International Criminal Court

malone“Maturing Justice: Integrating the Convention on the Rights of the Child into the Judgments and Processes of the International Criminal Court,” by Linda A. Malone (right), Marshall-Wythe Foundation Professor of Law and Founding Director of the Human Security Law Center, William & Mary Law School

drumblm“Children, Armed Violence and Transition: Challenges for International Law & Policy,” by Mark Drumbl (left), Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University School of Law

“Child Protection in Times of Conflict and Children and International Criminal Justice,” by Kerry L. Neal neal(right), Child Protection Specialist, Justice for Children, UNICEF, New York

“Expert Workshop Session: Regulatory Framework,” by Ashley Ferrelli, Eric Heath, Eulen Jang, and Cory Takeuchi (all Georgia Law graduates, who were members of GJICL)

“Expert Workshop Session: Child Witnesses: Testimony, Evidence, and Witness Protection,” by Chelsea Swanson, Elizabeth DeVos, Chloe Ricke, and Andy Shin (now Georgia Law graduates, all then were members of GJICL)

“Expert Workshop Session: The Global Child,” by Haley Chafin, Jena Emory, Meredith Head, and Elizabeth Verner (all Georgia Law graduates, who were members of GJICL)

Student Notes

“Changing the Game: The Effects of the 2012 Revision of the ICC Arbitration Rules on the ICC Model Arbitration Clause for Trust Disputes,” by Colin Connor

“Water, Water Everywhere, But Just How Much is Clean?: Examining Water Quality Restoration Efforts Under the United States Clean Water Act and the United States-Canada Great Lakes Water Quality Agreement,” by Jill T. Hauserman

“REACHing for Environmental and Economic Harmony: Can TTIP Negotiations Bridge the U.S.-EU Chemical Regulatory Gap?,” by Ashley Henson

“Child Marriage in Yemen: A Violation of International Law,” by Elizabeth Verner

(Cross-posted from Diane Marie Amann)

Rusk Councilmember Teri Simmons (JD89) elected to Sister Cities board

Simmons4282_Headshot_520x282Very pleased to congratulate Teri Simmons, a distinguished Georgia Law alumna and member of our Dean Rusk International Law Center Council, on her recent election to the Board of Directors of Sister Cities International.

As stated on its website,

“Sister Cities International was created at President Eisenhower’s 1956 White House summit on citizen diplomacy, where he envisioned a network that would be a champion for peace and prosperity by fostering bonds between people from different communities around the world.”

Ms. Simmons, who earned her J.D. from Georgia Law in 1989, embodies the network’s slogan, “Peace through People.” Her service to her alma mater has included appearances on careers panels as well as participation in our Center’s Council. She is a partner at the Atlanta law firm of Arnall Golden Gregory, where she leads the firm’s International Immigration and Naturalization Practice and serves as practice leader of its German Business Practice. Among her clients has been the Atlanta Committee for the 1996 Olympic Games.

60th Logo_concept 2She has chaired the Atlanta Sister Cities Commission, and also managed programs with Nuremberg, Germany, one of Atlanta’s 18 sister cities. Fluent in German, she has received honors including a Friendship Award from the German government and the Prize of Honor from the City of Nuremberg. Additionally, Ms. Simmons has chaired the state chapter and served on the board of the American Immigration Lawyers Association.

The announcement of her election appeared in the latest Diplomacy newsletter, distributed by Global Atlanta in partnership with our Center. Details on the partnership and newsletter subscription here; online Diplomacy archive here.

Experts in Hague consultation on ICC prosecutors’ draft Policy on Children

fBopening

THE HAGUE, Netherlands – Experts gathered this week from around the world for a wide-ranging consultation on the International Criminal Court Office of the Prosecutor’s draft Policy on Children.

In her Opening Remarks to Monday’s consultation, Prosecutor Fatou Bensouda explained:

“This Policy, once finalised and adopted, will guide my Office in our ongoing efforts to address international crimes against or affecting children under the Rome Statute, as well as our interaction with children during the course of our work.

“The Policy will further provide clarity and transparency on how we intend to methodologically undertake this crucial work.

“Additionally, it is my hope that this Policy will also serve as a useful guide for national authorities and other actors in their respective endeavours to address crimes against and affecting children, and in their interactions with children in judicial processes.”

Released last month, the draft Policy:

► Reaffirms an oft-repeated commitment of the Prosecutor. To be precise, the Policy reinforces her Office’s concern for “children with weapons” – that is, persons under fifteen who have been recruited or used in armed groups, often called “child soldiers.” But it also details the Office’s concern for what the Prosecutor called “children affected by the weapons” – that is, all persons who, before their 18th birthday, endured crimes within the jurisdiction of the Court.

► Adopts a child-sensitive approach to its dealings with children. That approach recognizes children as both vulnerable and capable, as both needy and resilient – often, at the same time. The Policy pledges sensitivity to these realities according to the regulatory framework of the Rome Statute system, and also according to principles drawn from international instruments, like the 1989 Convention on the Rights of the Child, a treaty that enjoys near-universal ratification and is founding on 4 guiding principles:

  1. The child’s right to be treated without adverse discrimination;
  2. The right to life, survival, and development;
  3. The right to have the child’s best interests taken into account; and
  4. The child’s right to express views and have them considered.

The draft Policy on Children (available in full here) explicitly recognizes those principles and sets out the contours for respecting and ensuring them.

It thus enumerates crimes against and affecting children. Included are crimes of conscription and use, as well as child trafficking as enslavement and forcible transfer as genocide. Also included are crimes like persecution, if it targets children on the basis or age or birth, as well as attacks on schools.

The policy further details the approach of the Office with respect to children at all stages of the proceedings: preliminary examinations, investigations, prosecutions, sentencing, and reparations.

All these aspects received discussion at Monday’s consultation; some are reflected in tweets available at #EndCrimesAgainstChildren. The policy working group will be considered along with other public comments. The Office welcomes additional such comments, which should be sent via e-mail to OTPLegalAdvisorySection@icc-cpi.int no later than Friday, August 5, 2016. The Office anticipates final publication in October of this year.

It was an honor to take part in this consultation in my capacity as the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict – and also to be accompanied at the consultation by one of my Georgia Law students, Chanel Chauvet. (We’re pictured below in front of a mural at the ICC’s new permanent premises.) A  rising 2L and Dean Rusk International Law Center Student Ambassador, Chanel just completed a weeklong Hague summer school on international humanitarian law.

chanel_dianeICC

(Cross-posted from Diane Marie Amann)

Global Atlanta, our new partner in diplomacy news

downloadThe Dean Rusk International Law Center at the University of Georgia School of Law is honored to partner with Global Atlanta in presenting coverage of diplomatic news in Atlanta.2658403_23502

This new collaboration builds on long traditions of engagement history with the diplomatic community.

Georgia Law’s Center is named after Dean Rusk (below right), Secretary of State to Presidents John F. Kennedy and Lyndon Baines Johnson. The second-longest-serving Secretary of State in U.S. history, Rusk was a Georgia Law professor for decades after leaving the federal government.

outerspace

In 1967, flanked at left by Arthur Goldberg, US Ambassador to the United Nations, and at right by President Johnson, Secretary of State Dean Rusks signs the Outer Space Treaty on behalf of the United States. (credit)

Since 1977, the Dean Rusk International Law Center has served as a nucleus for research, education, and service in international, comparative, transnational, and foreign affairs law and policy. In addition to preparing Georgia Law students for today’s global marketplace and administering the law school’s Master of Laws (LL.M.) curriculum for foreign-educated lawyers, the Center hosts high-level conferences, closed-door experts’ workshops, and international trainings.

The Center’s new partner, Global Atlanta, has for more than twenty years been the only Atlanta publication devoted to tracking the city’s rise as a center of international business, education, and culture. Through its monthly Diplomacy e-newsletter and online archive, Global Atlanta helps officials in consulates and trade missions, as well as other readers, to stay informed about the activities of the local diplomatic corps.

“This partnership is an excellent opportunity for our Dean Rusk International Law Center to engage with Atlanta’s global community and to provide new opportunities for our students,”

said Diane Marie Amann, Georgia Law’s Associate Dean for International Programs & Strategic Initiatives and the Emily & Ernest Woodruff Chair in International Law. Phil Bolton, President of Agio Press and Publisher of Global Atlanta, agreed:

“The monthly Diplomacy newsletter, where we also cover speeches by visiting dignitaries, the arrival of new consuls general stationed in Atlanta and global policy developments affecting international business, has quickly become one of the most heavily engaged areas of our website. We are delighted that the Dean Rusk International Law Center shares our deep interest and appreciation for these important representatives and their work.”

To receive the Diplomacy e-newsletter, subscribe online.

Hague flags invite global celebration of International Criminal Justice Day

flag3

THE HAGUE, Netherlands – International Criminal Justice Day isn’t till next Sunday, but The Hague is ready. Flags like the one depicted above greet visitors throughout city center.

Occurring every July 17, the Day coincides with the signing in 1998 of the Rome Statute of the International Criminal Court – a landmark moment in the movement to call perpetrators of international crimes to account. The court began operating on July 1, 2002, and since then has examined, investigated, prosecuted, or adjudicated cases arising in nearly 19 countries, from Afghanistan to Ukraine.

To mark this 18th anniversary of the Rome Diplomatic Conference, the ICC welcomes photos from around the world. The idea’s to create an image of the scales of justice and show its presence throughout the world by posting on social media with hashtags #JusticeMatters, #17July, and #ICC. Details here.

Further to that effort, yours truly looks forward to today’s roundtable consultation on the draft Policy on Children, opened for public comment last month by the ICC’s Office of the Prosecutor.

(Cross-posted from Diane Marie Amann)

Henckaerts on “Locating the Geneva Conventions Commentaries in the international legal landscape”

Jean-Marie-HenckaertsIt is an honor to publish a post by our distinguished alumnus, Dr. Jean-Marie Henckaerts (LLM 1990). Based in Geneva, he is Legal Adviser in the Legal Division of the International Committee of the Red Cross and Head of the project to update the Commentaries on the 1949 Geneva Conventions and the Additional Protocols of 1977. We posted on the launch of the Commentary to the 1st Convention back in March, and are pleased to announce that on September 23, we’ll host an experts’ conference examining that volume. Proceedings to be published in our Georgia Journal of International & Comparative Law, for which Dr. Henckaerts served as Associate Editor while a Georgia Law student. We republish his post today courtesy of 3 blogs cosponsoring a series of posts on the topic, Opinio Juris, Intercross, and Humanitarian Law & Policy. Dr. Henckaerts writes:

Norms of international law develop through the adoption of treaties or through the formation of customary rules based on State practice and opinio juris. The treaty rules of international humanitarian law (IHL) are first and foremost contained in the Geneva Conventions and their Additional Protocols. In parallel, a body of customary rules govern the conduct of armed conflicts today. In 2005, the ICRC released a Study aimed at identifying customary IHL rules; it formulated 161 rules of IHL which have achieved, according to State practice compiled by the ICRC, customary status.

The ICRC Commentaries, like other commentaries, purport to clarify the meaning of treaty rules in order to facilitate their implementation: they are concerned with norm interpretation as opposed to norm identification. All laws, no matter how detailed they are, have to be interpreted when being applied. International treaties, such as the Geneva Conventions, are no different. A commentary’s purpose is to offer such interpretations and indicate where a question is not entirely settled. By their nature, they cannot amend the law.

Because the 1949 Geneva Conventions were drafted in such a way as to make them easily comprehensible by belligerents, their rules already offer a degree of specificity and practicality – see the detailed rules governing the protection of prisoners of war in the Third Convention. Yet, the scope or meaning of some of their provisions may also require further clarification – see the lack of detail governing the Conventions’ scope of application. Time had come to provide an up-to-date interpretive guide to the Conventions, to better address today’s humanitarian challenges.

Applying the rules on treaty interpretation to the Geneva Conventions

According to the 1969 Vienna Convention on the Law of Treaties, a treaty must be interpreted

“in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”

(Art. 31(1)). The ‘object and purpose’ of the Conventions to respect and protect those affected by armed conflict while taking into consideration military necessity, has been a constant and leading compass throughout the research and drafting of the new Commentary on the First Geneva Convention (GCI). The ‘context’ to be considered for treaty interpretation comprises not only the text of the treaty, but also its preamble and annexes. As a supplementary means of interpretation (Art. 32), the preparatory work has been particularly important, when no recent practice on a topic could be found.

The Vienna Convention also reflects and foresees the need to take account the passing of time when interpreting treaties. Art. 31(3) provides that recourse may be had to

“subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.

Other subsequent practice – for example conduct by one or more (but not all) Parties in the application of the treaty after its conclusion – may also be relevant as a supplementary means of interpretation. The weight of such practice may depend on its clarity and specificity, as well as its repetition. In the case of the Geneva Conventions, such practice – identified for example through military manuals, national legislation, case-law, reports of practice and official statements – has proved particularly useful in confirming or determining the meaning of a rule. ICRC experience and scholarly writings have also proved useful in informing the interpretation of the Conventions.

Pursuant to Art. 31(3) of the Vienna Convention, the Commentary also took into account other

“relevant rules of international law applicable in the relations between the parties”.

These include customary IHL and the three Additional Protocols, as well as other relevant branches of international law. In particular, human rights law, international criminal law and refugee law were still in their infancy when the Pictet commentary was being drafted but they have grown significantly in the meantime. In this regard, the development of case-law from international courts and tribunals since the 1990s also had to inform an up-to-date interpretation of IHL treaty rules.

An ICRC Commentary, resulting from a collaborative process

Where does the legitimacy of the ICRC to interpret the Conventions stem from? First, the ICRC benefits from a legal legitimacy as guardian and promoter of IHL, a role it was formally entrusted with by the international community through the Statutes of the International Red Cross and Red Crescent Movement, adopted by all States parties to the Geneva Conventions. Ensuring a coherent interpretation of the law is essential to enhance respect for it, and hence is at the core of the ICRC mandate. Second, the ICRC possesses an operational legitimacy, drawing from more than 150 years of experience in assisting and protecting those affected by armed conflicts, but also in engaging with weapon bearers to promote and disseminate IHL. Third, throughout the years, the ICRC has accumulated knowledge in material form: the ICRC archives have documented the practice of State and non-State actors, as well as its own. This wealth of experience and access to these materials sets the ICRC in a unique position to capture interpretations of IHL treaty rules.

At the same time, the updated Commentaries are far from an exclusively “ICRC” product. While they have been commissioned by the institution and edited by its staff lawyers, and include ICRC interpretations, they also incorporate an unprecedented level of external inputs, both in terms of process and substance. The Commentaries are the result of a collaborative process, involving external contributors as authors and reviewers. This allowed the new Commentary to take into account a wide range of perspectives, from different parts of the world, and to reflect main diverging views.

I am convinced that continuous efforts to interpret the law in a coherent manner is essential to ensure that the humanitarian spirit of the Geneva Conventions is carried forward into today’s conflicts. It is the ICRC’s hope that the new Commentaries will, like the Pictet Commentary, be a leading interpretative compass; but its ultimate authority will depend on its quality and relevance for practitioners and academics. The updated Commentaries should not be seen as the final word on the meaning of IHL treaty provisions, but rather as a picture of how the rules are interpreted today, and a contribution to continuing efforts to refine our understanding of the law and how it can best mitigate the effects of contemporary armed conflicts.

syria-crisis-1140x620

View of destruction in downtown Homs, Syria; photo courtesy of International Committee of the Red Cross. ©Jerome Session/Magnum Photos for ICRC