By Professo Nicolás Zambrana-Tévar, Study Group of Private International Law and Human Rights, University of Navarra

The first Spanish judicial decision sentencing a person for the crime of Genital Mutilation carried out outside Spain was issued last 4 April, 2013 by the Spanish Audiencia Nacional of Madrid.

The Spanish Criminal Code was amended in 2003 (art. 149.2) and a new offense was introduced, namely genital mutilation (male and female). Furthermore, the Spanish jurisdiction statute was amended in 2005 in order to give Spanish courts extraterritorial jurisdiction to allow them to hear cases on Female Genital Mutilation (article 23.4). So far, several cases of FGM have already been heard in Spain but only one has reached the stage of oral proceedings, finishing with a sentence of six years for the father and two years for the mother of the mutilated girl. In December, 2012, the Spanish Supreme Court confirmed the latter sentence issued by the Teruel Court of First Instance. In May, 2013, another couple from Gambia who lived in Vilanova i la Geltrú (Catalonia) was also sentenced to 12 years in prison for having performed FGM or allowed FGM to have been performed upon her two daughters.

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By Francisco J. ZAMORA CABOT, Professor of Private International Law at the University Jaume I, Castellon, Spain.

The issue of extraterritoriality is currently envisaged as one of the keys to the resolution of the well-known and crucial Kiobel case, before the Supreme Court of the United States, which we are expecting any time now. However, the Alien Tort Claims Act (ATCA) has nothing to do with extraterritoriality. That legislative text and its judicial practice must be maintained in the field of international torts on human rights, they are special illegal acts that have to be solved through the interplay of the Conflicts of Laws and Public international law. In no way, that legal text and its practice portray an imperialistic position on the part of the United States in front of other States, or an excess of jurisdiction vis-a-vis the Law of Nations. Quite simply, the attempt to place ATCA out of its scope should be rejected, and has to be considered as mischievous and/or arbitrary.

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By Rebecca M.M. Wallace (Professor of International Human Rights and Justice, Robert Gordon University, Aberdeen, UK) and Karen Wylie (Research Assistant, Robert Gordon University, Aberdeen, UK)

The principle of the best interests of the child is enshrined in international law by Article 3 of the 1989 UN Convention on the Rights of the Child (UNCRC). Similarly the right to family life is protected by Article 8 of the European Convention on Human Rights (ECHR). In June 2012, in the case of BH (AP) (Appellant) and another v The Lord Advocate and another (Respondents) (Scotland) KAS or H (AP) (Appellant) v The Lord Advocate and another (Respondents) (Scotland) Trinity Term [2012] UKSC 24, On appeal from: [2011] HCJAC 77 (hereafter referred to as BH), the UK Supreme Court had to consider the weight to be given to these principles in the context of the extradition of a couple to the US and the effect this would have on their children.

Very briefly, the charges against the couple, Mr and Mrs H, were conspiracy and unlawful importation into the US of chemicals used to manufacture methamphetamine in the knowledge of, or having even cause to believe, that they would be used for that purpose. Mrs H is the mother of six children whose ages ranged, at the time of the case, from 14 to one year. Mr H is the father of the four youngest children. The Supreme Court acknowledged that the children’s interests would be interfered with, at least to some degree, by the extradition of either parent, and if both parents were to be extradited the effect on the family life of the children would be “huge”. The issue confronting the Supreme Court was the weight to be given to the children’s best interests, and whether on considering these best interests, the extradition of both parents, or either of them, would be proportionate. In assessing the parents’ case the Court relied heavily on a previous case, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011), in which the weight to be given to the best interests of a child who faced the removal of one of his parents from the UK, was discussed at length.

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By Dr Olga Martin-Ortega, Reader in Public International Law, Greenwich University

Seen on another blog, an interesting comment by Professor Steven Haines on the potential impacts of a recent Judgement of the International Court of Justice, The Hague.

In November 2012, the ICJ released its decision on the Territorial and Maritime Dispute between Nicaragua and Colombia. Right after the decision was made public, Haines notes, comments suggested that the ICJ might have negative consequences on crime combating in the Caribbean. His article thus offers an extensive summary of the facts and proceeds, but it also goes on to an interesting debate on how a ruling on territorial and maritime soverignty may in practice relate to international criminal law.

Here is an abstract, the full article is available here

“It must be said that on first reflecting on this case, it appears to have no substantial relevance to international criminal law at all. As already explained, it was to do with rival maritime claims that, while producing tension, had not previously resulted in the parties to the dispute resorting to force […] We can also reasonably rule out the possibility of this case having any relevance to ICC-based international criminal law. If, however, we adopt a broader definition of what constitutes ‘international crime’ there is at least a suggestion that the Judgement has consequences. A broader definition arguably includes all serious crimes having a significant international dimension. Given the international nature of the oceans, crimes committed at sea will almost invariably have potentially significant international dimensions. One group of crimes with profound international consequences is to do with the manufacture, sale and trafficking of illicit narcotics”.

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By Iva Vukusic, The Hague

 

The Appeals Judgment

 

‘I fundamentally dissent from the entire Appeal Judgment, which contradicts any sense of justice’# is what judge Fausto Pocar, one of the five appellate judges in the Gotovina and Markac trial at the International Criminal Tribunal for the former Yugoslavia (ICTY), states in his Dissenting opinion (paragraph 39). That harsh statement, along with others in the Opinion, indicates just how significant the differences were between the judges’ interpretations during the deliberations on the responsibility of Croatian generals Ante Gotovina and Mladen Markac, sentenced by the Trial Chamber in April 2011 to 24 and 18 years of imprisonment, respectively, for taking part in a joint criminal enterprise the objective of which was the permanent removal of the Serb population from the Krajina region #. The events took place during and after Operation Storm conducted by the Croatian Military and Police forces in August 1995.

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ImageThe full extent of the 1789 Alien Tort Claims Act (ATCA) which allows non-U.S. citizens to file suits in the U.S. for international human rights violations has been the subject of many debates in recent U.S. cases (Sosa v. Alvarez-Machain,KiobelBoimah Flomo I and IIExxon). This comment looks at the key points relied upon in recent decisions to reject the existence of a corporate liability principle under customary international law. The concurring observations of Judge Leval, who argued that the Kiobel decision might have kept the door open to major corporate abuses and created a precedent of corporate impunity, are especially relevant because they have been confirmed by more recent decisions. This comment also considers the arguments presented in the Kiobel re-hearing rejection regarding the policy impact of the decision and the policy-making role of U.S. tribunals. Finally, this comment questions whether U.S. courts should be expected to get involved in international justice, thereby risking being characterized as imperialist, self-appointed world judges.

The paper is availble here, and as a pdf version

Better late than never, here is a post on the recently published report of a WTO Panel on the dispute between the United States, the European Communities and Mexico against the People’s Republic of China. The dispute –which official transcripts are available here– flows from forty measures restricting the exportation of raw materials including certain forms of bauxite, coke, fluorspar, magnesium, manganese, silicon carbide, silicon metal, yellow phosphorus and zinc. The complainants identified the following as four types of restraints that China imposes on the exportation of these raw materials: (1) export duties; (2) export quotas; (3) export licensing; and (4) minimum export price requirements.

An interesting aspect of this claim is that China defended its export restriction policy by emphasising the essential impact of those measures on their economic development (sovereignty of natural resources was used here as the major legal argument), resource conservation and environmental protection. This, of course, was rather interpreted by the complaining parties as purely protectionist measures breaching China’s commitments under WTO rules.

Note: this post only provides a summary of the main arguments of the parties and the related findings of the Panel, it does not provide an extended analysis of the case.

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