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 Robert Grabosch, Attorney at law

Claimants from all over the world have brought various lawsuits against non-US companies because of human rights being violated outside of the United States. Currently, a supposed clash of extraterritorial jurisdiction of civil courts with the international law principle of state sovereignty, or non-intervention, has put all litigation under the US Alien Tort Claims Act to a halt. The Notepad repeatedly commented on this kind of litigation (see the ATCA / ATS tags). In a post over at grabosch-law.eu, I try to explain that provisions of extraterritorial jurisdiction – i.e. jurisdiction in cases which have no or hardly any connection to the forum state – are well known in legal systems outside of the United States. At least from a German understanding of international law, civil courts’ jurisdiction is not at odds with the principle of non-intervention. Read the rest of this entry »

Just a quick line about a report published ten days ago in an Indian online newspaper regarding Indian’s plans to abandon international arbitration in investment disputes.

Everything is here: India seeks treaty revisions to deal with corporate suits – Indian Express.

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

Further arguments in the Kiobel case on the liability of transnational corporations under ATCA were presented yesterday (28th February 2012) before the US Supreme Court. The case was commented a moment ago on this blog (see here as well as the ATCA / ATS tags for more comments)  and it seemed at the time that the Court was reluctant to aknowledge the existence of a principle of corporate liability under international law. Well, it seems that the argument persists.

For those interested in the debate, a very informative post by Lyle Denniston can be found on the SCOTUSblog:

” When Justice Anthony M. Kennedy, in the opening minute of a Supreme Court argument, tells a lawyer that his entire case is in jeopardy, it is extremely difficult for even an experienced counsel to recover.   And, though he tried, Venice, Calif., attorney Paul L. Hoffman did not appear on Tuesday to have resuscitated his argument that foreign corporations should be held to account in U.S. courts for human rights abuses in foreign lands.  At least a majority of the Justices looked notably unconvinced […]”

By Robert Grabosch, Attorney at law

The United Nations Human Rights Council has endorsed the Guiding Principles for Business and Human Rights as they were submitted in March 2011 by the Secretary-General’s Special Representative John Ruggie. Since the Guiding Principles claim to not create but restate international law and ask little of the states of the Global North, the endorsement by the Human Rights Council was foreseeable. It is exactly these low demands what has sparked stark criticism.[1] However, SRSG Ruggie resorted to pragmatism and vagueness rather than clarifying current international law.
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By Natasha Harrington, pupil barrister (Essex Court Chambers, London)

Mauritius has brought a claim under UNCLOS to stop the U.K. from pulling the rug out from under its long-standing claim to sovereignty over the Chagos Islands. The proceedings are likely to start with a fierce jurisdictional battle that presents an opportunity to clarify the role and scope of jurisdiction of specialist tribunals.

Background

On 20th December 2010 Mauritius filed a notification, statement of claim and grounds for ad hoc arbitration against the U.K under article 287 and annex VII of the UN Convention on the Law of the Sea (UNCLOS, available here, under International Environmental Law Group, Public Documents).

The Mauritian claim follows what has been described as ‘a shockingly recent act of imperial arrogance’ (see the Chagos Support Association Website). In 1965, the U.K. included the Chagos Archipelago in a new British Indian Ocean Territory. The Chagos Islands were removed from the colony of Mauritius at a price of £3 million by an agreement between the U.K. and Mauritius that provided for the return of the islands when they are no longer required for defence purposes. Between 1967 and 1973 the U.K. forcibly expelled all 2,000 residents of the Chagos Archipelago and established a naval base on its largest island, Diego Garcia, which was leased to the U.S.A. Mauritius has claimed sovereignty over the Chagos Archipelago since its independence in 1968. Chagossians have recently challenged prohibitions on return to their former homeland in the courts of the U.S.A. and the U.K., one such challenge is currently before the E.Ct.H.R. (Chagos Islanders v U.K.).

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