Georgia Law Professor MJ Durkee publishes “Interstitial Space Law” at Washington University Law Review

Professor Melissa J. Durkee, the J. Alton Hosch Associate Professor of Law here at the University of Georgia School of Law, has published her article “Interstitial Space Law” in the latest issue of the Washington University Law Review.

Here’s the abstract:

“Conventionally, customary international law is developed through the actions and beliefs of nations. International treaties are interpreted, in part, by assessing how the parties to the treaty behave. This Article observes that these forms of uncodified international law—custom and subsequent treaty practice—are also developed through a nation’s reactions, or failures to react, to acts and beliefs that can be attributed to it. I call this ‘attributed lawmaking.’

“Consider the new commercial space race. Innovators like SpaceX and Blue Origin seek a permissive legal environment. A Cold-War-era treaty does not seem adequately to address contemporary plans for space. The treaty does, however, attribute private sector activity to nations. The theory of attributed lawmaking suggests that the attribution renders the activity of private actors in space relevant to the development of binding international legal rules. As a doctrinal matter, private activity that is attributed to the state becomes “state practice” for the purpose of treaty interpretation or customary international law formation. Moreover, as a matter of realpolitik, private actors standing in the shoes of the state can force states into a reactive posture, easing the commercially preferred rules into law through the power of inertia and changes to the status quo. Attributed lawmaking is not a new phenomenon but it may have increasing significance at a time when multilateral lawmaking is at an ebb, lines between public and private entities are blurring, and the question of attribution becomes both more complex and more urgent.”

The article’s also available at SSRN.

Georgia Law Professor Amann’s UN Audiovisual Lecture marks 30th anniversary of Child Rights Convention

This week’s global commemoration of the 30th anniversary of the Convention on the Rights of the Child includes a special contribution from a Faculty Co-Director of the Dean Rusk International Law Center here at the University of Georgia School of Law:

The United Nations Audiovisual Library of International Law has just published “Child Rights, Conflict, and International Criminal Justice,” a lecture by Georgia Law Professor Diane Marie Amann, holder of the Emily & Ernest Woodruff Chair in International Law. As described in prior posts, Amann’s expertise in this field extends to her service as Special Adviser to International Criminal Court Prosecutor Fatou Bensouda on Children in & affected by Armed Conflict; that said, she produced this lecture in her personal capacity.

Amann’s 41-minute lecture was taped 8 November 2019 at the Codification Division of the UN Office of Legal Affairs, UN Headquarters, New York. It is available in video (here) and audio formats (SoundCloud, Apple Podcasts, and Google Podcasts).

As Amann posted at her personal blog, the lecture begins by setting forth particular harms that children endure in armed conflict and similar violence. It proceeds to trace the developments in child rights that led to adoption, on 20 November 1989, of the Convention on the Rights of the Child. Next, it describes parallel developments in two other key legal fields, international humanitarian law and international criminal law. After looking at relevant provisions of the Child Rights Convention and other instruments – in particular, the 1998 Rome Statute of the International Criminal Court – the lecture concludes by evaluating efforts to ensure the rights of the child by preventing and punishing international crimes against and affecting children.

Also provided at Amann’s AVL Faculty Page is a list of related materials on which her lecture relies.

Amann said this about the treaty that is enjoying a celebration, in Wednesday’s “World Children’s Day” and throughout this week:

“As for the 1989 Child Rights Convention itself – today it has 196 parties, including the Holy See, the State of Palestine, and every UN member state except the United States of America. Because of its nearly universal acceptance, as well as its comprehensive contents, the Convention has served for the last thirty years as the pre-eminent global charter on child rights and protection.”

Global Governance Summer School visits the Hague Conference on Private International Law & museum

THE HAGUE — Students spent their second day in The Hague engaged in a mix of legal and cultural excursions.

Students spent the morning meeting with lawyers from the Hague Conference on Private International Law. There, they were treated to an overview of the world organization responsible for cross-border cooperation in civil and commercial matters. Students met with Laura Martinez-Mora, Secretary of the Permanent Bureau, and Frédéric Breger, Legal Officer (left). They provided an introduction to the history and structure of the HCCH, and provided a detailed overview of some of its many conventions, which cover topics including: family law matters such as child abduction, intercountry adoption, child protection, and maintenance obligations; forum selection as other procedural issues such as choice of court, taking evidence abroad, service abroad, and apostille. Finally, they touched upon the newly concluded Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, which Dean Peter B. “Bo” Rutledge, raised during his session on international dispute resolution in Leuven last week. Students were interested to hear about the treaty-making process, as well as the aspects of the treaties, particularly those covering family law, that reinforced human rights treaties, such as the Convention on the Rights of the Child.

From left, Ayman Tartir, Steven Miller, Gamble Baffert, Charles Wells, Emily Snow, Holly Stephens, Lauren Taylor, Briana Blakely, Jessica Parker, and Kathleen Doty.

 

In the afternoon, the group visited Escher in Het Paleis, the museum dedicated to M.C. Escher, set in Queen Emma’s winter palace. There, students took in masterpieces, and thoroughly enjoyed the interactive top floor of the museum. Everyone’s inner child came out to play!

Tomorrow, students will visit the International Court of Justice and the International Criminal Court before concluding the 2019 Global Governance Summer School.

 

Belgium portion of the Global Governance Summer School concludes with an array of international law topics

LEUVEN – Today marks the final day of classroom sessions of the Georgia Law – Leuven Global Governance School, and the final day students will be resident in Leuven. Students took part in three sessions, which focused on business and human rights, international security governance, and concluded with an overview of challenges to international law and global governance.

First, Dr. Axel Marx (left), Deputy Director of the Leuven Centre for Global Governance Studies, presented on business and human rights. After examining several case studies in which corporate activities adversely affected human rights, participants learned how supply chain and corporate governance structures can affect a business’ ability to manage human rights. Dr. Marx introduced key global governance instruments, such as the United Nations Guiding Principles on Business and Human Rights, that can be used to hold states and corporations accountable for human rights violations.

IMG_6489Second, Kathleen Doty (right), Director of the Dean Rusk International Law Center at University of Georgia School of Law, led an interactive session on global security governance. Professor Doty introduced students to global security governance, including international humanitarian law and arms control law. She explained the development of this body of law, focusing on arms control agreements, and introduced several major regimes and their common features. The students then participated in an exercise; faced with a global security crisis, students were tasked with addressing it via treaty negotiation, illustrating the difficulty of international cooperation.

img_6512.jpgThe final session of the day provided an overview of international perspectives on and challenges to global governance, conducted by Professor Dr. Jan Wouters (left), Director of the Leuven Center for Global Governance Studies and the Co-Director of the Global Governance Summer School. Professor Wouters explained the history of globalization and the increase of economic, environmental, and human interdependence. He then explored challenges to the international system, such as anti-globalism, nationalism, and populism.

Student Ayman Tartir receives his diploma from Axel Marx.

Closing out a successful week of studies, students and faculty gathered at the Leuven Institute for Ireland in Europe for a concluding reception. Axel Marx and Kathleen Doty presented participants with attestations of completion.

Tomorrow, students from the University of Georgia School of Law will travel to The Hague, where they will visit international tribunals and organizations.

Georgia Law trio pens Daily Report commentary on ECJ arbitration ruling

Peter B. “Bo” Rutledge, Dean and Herman E. Talmadge Chair of Law here at the University of Georgia School of Law, has co-authored, with 3L Katherine M. Larsen and Amanda W. Newton (JD’19), a commentary on a recent decision related to international arbitration.

Entitled “European Decision Could Have Killed Investment Treaties, Affecting Arbitration and Investments,” the commentary appeared at The Daily Report on June 28.

It discusses the content and the implications of Achmea v. Slovakia, a May 2018 decision in which the European Court of Justice ruled a clause in a bilateral investment treaty to be incompatible with European law. Both that decisions and subsequent interpretation of it in European and US courts, the authors state, leaves “more questions than answers at this point.” (Also see prior post.)

Accountability for harms to children during armed conflict discussed at Center-sponsored ILW panel

NEW YORK – Ways to redress offenses against children during armed conflict formed the core of the panel that our University of Georgia School of Law Dean Rusk International Law Center sponsored last Friday at International Law Weekend, an annual three-day conference presented by the American Branch of the International Law Association and the International Law Students Association. I was honored to take part.

► Opening our panel was Shaheed Fatima QC (top right), a barrister at Blackstone Chambers in London, who led a panel of researchers for the Inquiry on Protecting Children in Conflict, an initiative chaired by Gordon Brown, former United Kingdom Prime Minister and current UN Special Envoy for Global Education.

As Fatima explained, the Inquiry focused on harms that the UN Security Council has identified as “six grave violations” against children in conflict; specifically, killing and maiming; recruitment or use as soldiers; sexual violence; abduction; attacks against schools or hospitals; and denial of humanitarian access. With regard to each, the Inquiry identified legal frameworks in international criminal law, international humanitarian law, and international human rights law. It proposed a new means for redress: promulgation of a “single instrument” that would permit individual communications, for an expressed set of violations, to the Committee on the Rights of the Child, the treaty body that monitors compliance with the Convention on the Rights of the Child and its three optional protocols. These findings and recommendations have just been published as Protecting Children in Armed Conflict (Hart 2018).

► Next, Mara Redlich Revkin (2d from left), a Ph.D. Candidate in Political Science at Yale University and Lead Researcher on Iraq and Syria for the United Nations University Project on Children and Extreme Violence.

She drew from her fieldwork to provide a thick description of children’s experiences in regions controlled by the Islamic State, an armed group devoted to state-building – “rebel governance,” as Revkin termed it. Because the IS sees children as its future, she said, it makes population growth a priority, and exercises its control over schools and other “sites for the weaponization of children.” Children who manage to free themselves from the group encounter new problems on account of states’ responses, responses that Revkin has found often to be at odds with public opinion. These range from the  harsh punishment of every child once associated with IS, without considering the extent of that association, to the rejection of IS-issued birth certificates, thus rendering a child stateless.

► Then came yours truly, Diane Marie Amann (left), Emily & Ernest Woodruff Chair in International Law here at the University of Georgia School of Law and our Center’s Faculty Co-Director. I served as a member of the Inquiry’s Advisory Board.

Discussing my service as the Special Adviser to the Prosecutor of the International Criminal Court on Children in and affected by Armed Conflict, I focused on the preparation and contents of the 2016 ICC OTP Policy on Children, available here in Arabic, English, French, Spanish, and Swahili. The Policy pinpoints the crimes against and affecting children that may be punished pursuant to the Rome Statute of the International Criminal Court, and it further delineates a “child-sensitive approach” to OTP work at all stages, including investigation, charging, prosecution, and witness protection.

► Summing up the conversation was Harold Hongju Koh (2d from right), Sterling Professor of International Law at Yale Law School and former Legal Adviser to the U.S. Department of State, who served as a consultant to the Inquiry.

Together, he said, the presentations comprised “5 I’s: Inquiry, Iraq and Syria, the ICC, and” – evoking the theme of the conference – “international law and why it matters.” Koh lauded the Inquiry’s report as “agenda-setting,” and its proposal for a means to civil redress as a “panda’s thumb” response that bears serious consideration. Koh envisaged that in some future administration the United States – the only country in the world not to have ratified the Convention on the Rights of the Child – might come to ratify the proposed new  protocol, as it has the optional protocols relating to children in armed conflict and the sale of children.

The panel thus trained attention on the harms children experience amid conflict and called for redoubled efforts to secure accountability and compensation for such harms.

(Cross-posted from Diane Marie Amann)

On Holocaust Remembrance Day, thanks to archives preserving histories of post-WWII war crimes trials: Amann


LOS ANGELES – On this International Holocaust Remembrance Day, I am honored to be spending this month at the USC Shoah Foundation, reviewing testimonies of persons who did their part to set right one of history’s terrible wrongs.

Seventy-three years ago today, Soviet troops liberated Auschwitz-Birkenau, the infamous Nazi concentration camp located about 45 miles west of Kraków, Poland. Liberations of other camps by other Allied forces soon followed; among them, the U.S. liberation of Buchenwald on April 11, 1945, and the British liberation of Bergen-Belsen 4 days later.

Sixty years later, a 2005 U.N. General Assembly resolution set this date aside for commemoration of World War II atrocities; to quote the resolution, of

“… the Holocaust, which resulted in the murder of one third of the Jewish people, along with countless members of other minorities …”

The resolution further:

  • honored “the courage and dedication shown by the soldiers who liberated the concentration camps”;
  • rejected “any denial of the Holocaust as an historical event”;
  • envisaged the Holocaust as “a warning to all people of the dangers of hatred, bigotry, racism and prejudice”;
  • denounced “all manifestations of religious intolerance, incitement, harassment or violence against persons or communities based on ethnic origin or religious belief, wherever they occur”; and
  • encouraged initiatives designed to “inculcate future generations with the lessons of the Holocaust in order to help to prevent future acts of genocide.”

Among the many such initiatives are memorial centers and foundations throughout the world – 2 of which have helped me in my own research into the roles that women played during postwar international criminal trials at Nuremberg.

In December, the Holocaust Memorial and Tolerance Center of Nassau County, located in Glen Cove, New York, opened its archives to me. Special thanks to Helen  Turner, archivist and Director of Youth Education, for her assistance.

This month, as the inaugural Breslauer, Rutman and Anderson Research Fellow, I am in residence at the University of Southern California, examining documents in USC Shoah Foundation’s Visual History Archive. It has been a fruitful and moving scholarly experience, and I look forward to sharing my research at a public lecture on campus at 4 p.m. this Tuesday, Jan. 30 (as I was honored to do last week at UCLA Law’s Promise Institute for Human Rights; video here). Special thanks to all at the foundation’s Center for Advanced Research – Wolf Gruner, Martha Stroud, Badema Pitic, Isabella Evalynn Lloyd-Damnjanovic, and Marika Stanford-Moore – and to the donors who endowed the research fellowship. (Fellowship info here.)

As reflected in the 2005 General Assembly resolution, the work of such institutions helps to entrench – and to prevent backsliding from – states’ promises to ensure and respect human rights and dignity norms, set out in instruments like the 1945 Charter of the United Nations, the 1948 Convention on the Prevention and Punishment of Genocide, the 1948 Universal Declaration of Human Rights, and the 1966 International Covenant on Civil and Political Rights. To this list I would add the many documents establishing international criminal fora to prosecute persons charge with violating such norms – from  the Nuremberg-era tribunals through to today’s International Criminal Court.

(Cross-posted from Diane Marie Amann; image credit)