Global Warming -- US "a small contributor"?

Some arguments are almost too indecent to be seriously made. Take the reaction of Samuel Bodman, US Secretary of Energy, to the report of the Intergovernmental Panel on Climate Change:

"We are a small contributor to the overall, when you look at the rest of the world, so it's really got to be a global solution."

Let's look at this again:
First, the United States is but a small contributor to the global warning. Sure, every industrialized countries shares in the blame. But it may be a useful reminder that the United States contributes about 26% of worldwide greenhouse gas emissions. The energy consumption per capita in the United States and Canada is about twice as high as in comparably developed countries such as the UK or Germany. (See here for a graph) A "small contributor"?

Second, "it's really got to be a global solution." Well, there we go. Let's see what we have to offer in terms of global solutions... What about the Kyoto Protocol? This Protocol to the United Nations Framework Convention on Climate Change (UNFCCC) now has 169 parties, representing roughly 62% of the world's emissions. Ratifying states have committed to reduce their emissions of carbon dioxide and five other greenhouse gases.

The flaws of the Protocol are well-discussed: China has obtained a questionable exemption relating to the calculation of its CO2 emissions; other states have tried to obtain carve-outs for their traditional heavy industries. Yet it is as close as we currently get to the "global solution" that Bodeman called for. Either the administration is willing to reconsider the decision not to proceed to a ratification of the protocol, or the Secretary's words ring with hollow hypocrisy.

Global Jurist Blog to Become... LAWBSTER.ORG

To avoid confusion with the excellent e journal 'Global Jurist' (click here for a link), edited by Professor Ugo Mattei, the GLOBAL JURIST blog has decided to move to

www.LAWBSTER.org

We will use the opportunity to re-vamp the blog to become
- more dynamic
- feature several contributors and
- expand the range of topics covered.

The basic concept -- short op-eds in the field of international law and politics -- remains the same.

Woodside v. Mauritania: Investment Dispute at the Horizon?

The economy of the North African country of Mauritania is still largely dependent on farming and livestock. Iron ore has traditionally been the main natural ressource. Yet, worldwide demand for iron ore had been on the decline. The discovery of oil in 2001, thus, sparked hopes for a brighter economic future.

Production is scheduled to start in the upcoming weeks. Yet, the country has engaged in a passionate dispute with the principal exploring company, the Australian Woodside, over the participation contract. The current transitional government (which came into power following a military coup in August 2005) accuses the former minister of energy of signing an agreement amending the original participation contract in a way that is exclusively beneficial to Woodside. The government claims that large-scale bribery may have motivated the minister to 'adjust' the participation quota in favor of Woodside. News reports estimate the additional profit derived from the amendments for Woodside at US$ 200 Mio (calculated over the 10-year duration of the participation contract).

It is safe to predict that, if the parties fail to reach agreement at the political level, Woodside will initiate international arbitration. (News reports do not, however, reveal the precise jurisdictional basis for such arbitration.) If Mauritania's assertions are true, this case might be the first one in which an abitral tribunal would have to pronounce itself on the question whether an investor can enforce through international arbitration a benefit conferred to it through bribery.

Click here to read an article from The Australian. The principal Mauritanian paper's coverage can be accessed under http://www.akhbarnouakchott.com/.

Cosmopolitan International Law: Bad for Developing Countries?

The Rebellious Lawyering Conference at Yale Law School will host the following panel:

“Cosmopolitan International Law: Empowerment or Disempowerment of Developing Countries?”

The central paradigm of cosmopolitan international law is human rights. While the international human rights movement has traditionally understood itself as articulating the concerns of the weak and the oppressed, this panel will attempt to probe “the dark sides of virtue” focusing on recent critiques by Professor D. Kennedy and Professor B. Rajagopal. The aim of the panel is to facilitate a nuanced but rigorous debate on some of the ways in which human rights law might be considered ‘as much a part of the problem as the solution’ even when used with the best of intentions. We wish to focus on the possible power imbalances created by the efforts of human rights practitioners in the areas of advocacy, litigation, etc. On the basis of an analysis of international human rights law as both empowering and disempowering, panelists will attempt to identify strategies for its use as a viable tool for development, particularly in the non-Western world.

The debate will explore the ‘costs’ and ‘benefits’ of using the frame of international human rights for the attainment of various normative ends particularly in the ‘the developing world.’

PLEASE ATTEND NUMEROUSLY!

Cosmopolitan International Law: Panelists' Biographies

Hauwa Ibrahim is a Nigerian human rights lawyer, who is currently at Yale as a World Fellow. Ibrahim was awarded the 2005 Sakharov Prize for Freedom of Thought, the European Parliament's prestigious human rights award previously held by Aung San Suu Ky and Nelson Mandela. As a defender of women’s rights in Nigeria, she has successfully challenged numerous charges and convictions under strict Islamic Sharia law in her country. One example is the case of Amina Lawal who was condemned to be stoned to death for having given birth outside of marriage – Ibrahim’s effort resulted in a ground-breaking ruling that effectively saved Lawal’s life. Ibrahim has also served as a consultant to the United Nations Development Program, the European Union and the NGO Lawyers without Borders.

David Kennedy, professor of law at Harvard Law School, is a leading representative of the critical legal studies (CLS) movement and one of the first to have applied CLS to international law. Much of his work has concentrated on identifying patterns of international legal discourse with a view to unmasking the true political power dynamics that sophisticated legal argument attempts to conceal. In his recent book, The Dark Sides of Virtue, Kennedy questions from a leftist perspective the cosmopolitan project of international human rights as the cornerstone of international law, arguing that human rights ultimately fails to keep its promise of empowering the poor and marginalized.

Gabor Rona is the International Legal Director of Human Rights First. His expertise encompass not only international human rights law but include international humanitarian law. He previously served as a Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva. At the ICRC he focused on the application of international humanitarian and human rights law in the context of counter-terrorism policies and practices. He represented the ICRC in intergovernmental, nongovernmental, academic and public forums and his articles on the topic have appeared in the Financial Times, the Fletcher Forum on World Affairs and the Chicago Journal of International Law, among other publications. In addition, he represented the ICRC in connection with the establishment of international and other criminal tribunals, including the International Criminal Court. He has also taught International Humanitarian Law and International Criminal Law in several academic settings, including the International Institute of Human Rights in Strasbourg, France and the University Centre for International Humanitarian Law in Geneva, Switzerland.

Peter Rosenblum is the Lieff, Cabraser, Heimann & Bernstein Clinical Professor of Human Rights Law at Columbia Law School. He is a dedicated human rights activist who served as human rights officer with the Geneva-based precursor to the Office of the UN High Commissioner for Human Rights, a program director of the International Human Rights Law Group, and a researcher for both Human Rights Watch and the Lawyers' Committee for Human Rights. He has served in more than a dozen countries, and continues to maintain a strong interest in Africa, particularly the Democratic Republic of Congo. His work has given him a unique perspective on both the successes and failures of the human rights law project as reflected in both his academic and professional endeavors.

*** GLOBALJURIST blog in the news ***

The Frankfurter Allgemeine Zeitung (FAZ), one of Germany's leading daily newspapers, has recently reported on the GLOBALJURIST blog. In an article entitled "Delendus Scalia, wie schon Posner der Ältere sagte", Alexandra Kemmerer discusses various 'blawgs', weblogs with legal content. ►FULL TEXT

Supreme Court Nomination: Will International Law Be an Issue?

To international lawyers (as well as to many US lawyers, presumably) George W. Bush's recent nominee for the Supreme Court, Harrier Miers, is hardly known. Anthony Clark Arend, Professor at Georgetown, has rightly urged the Senate to enquire about her position on international law issues during confirmation hearings:

"Over the past seven months, Miers has served as White House Counsel. Her predecessor, Alberto Gonzales, had been involved in a number of extremely controversial decisions relating to international law-- in particular, questions relating to the status and treatment of detainees in the war on terror. Since Miers assumed the White House Counsel's position, there has been little discussion of her approach to these questions. [...] While there will be many issues that the members of the Senate Judiciary Committee will raise in her confirmation hearings, her views about international law-- the Geneva Conventions, the Torture Convention-- should be among them."

After last year's torture scandals, any White House Counsel should be required to prove a clean record on matters concerning international law.

Alfei Menashe: Israel Supreme Court Judgment

Sorry for the delay: Here is a link to the full (English) text of the judgment concerning the legality of the Wall, or in the terms of the Supreme Court, the 'Fence'.

Alfei Menashe: Israel Supreme Court Rules on the Legality of the 'Wall'

The Supreme Court of Israel, and in particular its Chief Justice A. Barak, has been a powerful actor in the peace process, steering a difficult (and often brave) course between acknowleding Israel's security concerns and the protection of the rights of the Arab population. On September 15, the Court ruled on the legality of the separation fence in the area surrounding Alfei Menashe (a segment of the wall of about 40 km). An English summary has been published. The Court concluded that the present route of the fence was inconsistent with international law of armed conflict (in particular the Hague Regulation) and with the constitutional rights of the local Arab population.

Of particular interest is of course how the Court deals with the advisory opinion on the legality of the wall handed down by the International Court of Justice in 2004. The Court acknowledges that the normative basis of both decisions ´is a common one'. The Court, furthermore, recognizes that the advisory opinion by the Hague Court constitutes an important authority on international law. The Court nonetheless reaches a different conclusion, mainly by distinguishing its case on factual grounds.

• The Court criticizes that the Hague Court lacked the necessary factual basis. Hence, Israel's security concerns were not given the necessary weight.

• The Court further critizices the Hague Court for its failure to assess each segment of the wall separately (instead of dismissing its legality altogether).

The Court's criticism is reminiscent of Judge Buergenthal's Declaration to the advisory opinion in the Wall case: "I am compelled to vote against the Court’s findings on the merits because the Court did not have before it the requisite factual bases for its sweeping findings". Judge Buergenthal, however, appears to be more critical of the Wall:

• He suggests that "[i]t follows that the segments of the wall being built by Israel to protect the settlements are ipso facto in violation of international humanitarian law." - The Israel Supreme Court decided that the question of the legality of the Israeli settlements was not relevant for the legality of the Wall.

• Judge Buergenthal reaches a tentative conclusion that the Wall may be unlawful in its entirety: "I am prepared to assume it, that on a thorough analysis of all relevant facts, a finding could well be made that some or even all segments of the wall being constructed by Israel on the Occupied Palestinian Territory violate international law".

The Supreme Court is probably correct when pointing out the factual insufficiencies in the Hague Court's opinion. Such insuffiency may have partly been due to the Israeli decision not to cooperate with the Court. As it turns out, a politically unwise decision - a view that Judge Buergenthal apparently shared: "While I have my own views on whether it was wise for Israel not to produce the requisite information..."

NPT review conference - Did anyone notice?

From May 2 to May 27, the 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was held in New York. The course of the conference and the outcome was largely unnoticed by the international community - despite the fact, that its result sheds a light on the probable future of the NPT, certainly the most important and most universal treaty in the field of disarmament and nonproliferation of weapons of mass distruction (WMD). And, unfortunately, the future seems to be gloomy. At the conference, the parties spend more than two weeks in discussion about procedural questions, not being able to even agree on an agenda. After finally consensus was reached on the agenda, substantial discussions lasted only for a few days and ended whithout the parties even being able to agree on any substantial question.

Prof. Harald Müller of the Hesse Foundation for Peace and Conflict Research (Hessische Stiftung für Friedens- und Konfliktforschung) was present at the conference and wrote a comprehensive report about the negotiations which is worth reading and can be found here. Unfortunately, it is only available in German.

He notes that the nuclear weapon states, especially the USA, refused to talk about nuclear disarmament - an obligation enshrined in Article 6 of the NPT. Indeed the USA even opposed talking about the 13 steps to nuclear disarmament already agreed upon at the 2000 NPT reviewe conference. This lead to a confrontation with countries of the Non-Algined-Movement, especially Iran and notably Egyt, who refused to negotiate about how to achieve a thorough non-proliferation regime. According to Prof. Müller, the majority of the parties, who were ready´and willing to find a compromise, were grinded between those extremes. He concludes that the NPT was significantly weakened and that this does bode ill for global security: It is easily imaginable that within the next ten years there will be 15-20 nuclear weapon states instead of eight (plus the cryptiv case of North Korea) today - some of them in conflict-prone regions such as the Middle East.

But what is most astonishing is the fact, that this whole process was largely unnoticed by the public - the press totally failed. And there was no public outcry. Indeed, even the official website of the 2005 NPT review conference does not offer coverage of the conference outcome - instead it only announces that the conference "will be held (sic!)...".

Conflict Prevention

In 2003, UN Secretary General Kofi Annan called for a shift from a culture of reaction to a culture of conflict prevention. His aim was to create awareness for the fact that prevention of conflicts before they eventually erupt violently is the most effective contribution to international peace and security imaginable - yet the international community was and is mostly concerned with conflicts that have already erupted. We are reacting, instead of preventing. The current famine in Niger is a sad example for this: Although all factors contributing to the disaster have been known for months, the international community only started to act as pictures of dying children appeared on TV. The same is true for many violent conflicts - the Rwanda genocide did not happen all of a sudden, as Human Rights Watch correctly points out.

But the call by Kofi Annan was not entirely fruitless. A great alliance of NGOs has formed, calling itself the Global Partnership for the Prevention of Armed Conflict (GPPAC). It has developed regional plans for conflict prevention and also a global action agenda, called "People Building Peace". GPPAC also organised a conference hosted by the United Nations in New York,, where NGO experts, UN officials and governmental representatives engaged in a fruitful dialogue about how to achieve the necessary shift to a culture of prevention.

The Action Agenda for example calls for the establishment of a Peacebuilding Commission. German Ambassador Dr. Pleuger pointed out in his speech at the final event of the conference, that such a body is needed in the UN framework, since it would fill a gaping hole in the United Nations institutional framework by helping countries with the transition from war to lasting peace. The idea behind such an institution is to have a body that accompanies countries which have suffered from violent conflict on their way to peace, thus ensuring continued supervision of ongoing programmes and avoiding inconsistent and incompatible action. Thereby a sustainable environment for lasting peace can better be achieved. This will in turn prevent the occurance of new violent conflicts or the resurfacing of old ones.

The discussion about the Peacebuilding Commission is still going on, but there is hope that it will be endorsed by the heads of state at their summit at the end of September 2005. A draft of the outcome document (although not the current version) can be found here. So far support for the PBC seems to be strong among member states, but the details like the exact composition remain to be decided.

Michel Aoun back in Lebanon

Concerning my earlier posting, the exiled Lebanese General Michel Aoun has indeed returned to Lebanon on May 7, as the New York Times and Yahoo news reported this weekend. He announced that he will get involved with politics again. The Süddeutsche Zeitung today in its printed edition (page 4) stated that his cause is backed by neoconservatives in the United States. The question remains - realpolitik or irony of history? Or both?

However, the state of Lebanon remains fragile and the influence of the once powerful Michel Aoun on the delicate balance of power cannot yet be judged.

Calipari incident

Due to a mistake by the US-led muli-national force in Iraq, the report on the Calipari incident was temporary online in its orginal version without any censored details. The incident, during which the Italian intelligence officer Calipari was killed by US forces, occured during the Italian rescue operation for the hostage Giuliana Sgrena on 4 March 2005. The full document can still be found at the website of the Italian newspaper La Reppublica. The report inter alia reveals the military units and the individuals involved and also states that the soldiers in the squad that opened fire had arrived in Iraq only two weeks earlier. However, the report concludes that the incident was a tragic accident - an assessment that is sharply criticised by the Italian authorities.

The Agent-Orange Litigation: Systemic Success and Political Injustice

The United States army sprayed an estimated 19 million gallons of agent orange in South Vietnam during the war. Every spray run, carried out by light, low-flying airplanes, destroyed 350 acres of forest. Agent orange is nowadays known as a cause of serious health damage. In 2004, Vietnamese victims filed product-liability claims against the companies that produced the chemical. The District Court of the Eastern District of New York now dismissed the case: “Neither a treaty to which the United States was a party, nor a statute, nor a binding declaration of the United States, nor a rule of international or human rights law applied to limit spraying of herbicides by the United States in Vietnam during the period up to April of 1975.”

From a purely systemic point of view, the judgment is good news to international lawyers in many ways:

• The District Court finds that it has jurisdiction over plaintiffs’ international law based claims under the Alien Tort Statute.

• The Court affirms that the judiciary must interpret treaties and customary international law, even when such interpretation leads to the conclusion that government has acted in violation of established international law principles.

• The US government had argued that a “controlling executive act” forecloses the application of customary international law. The Court rejects the argument and affirms that the President has no power to violate international law or to authorize others to do so.

• The Court further rejects the government’s contention that courts should defer to the executive’s interpretation of international law insofar as it suggests that the executive’s statement of the law is controlling. Courts cannot abandon their own duty to decide the law applicable to a case properly before them.

• The Court sides with the view that all customary international law has been included within federal common law.

Politically, however, the dismissal of the Vietnamese claims leaves a bitter after-taste. The judgment indirectly serves to legitimate the American war in Vietnam and thus risks to degrade the suffering of the Vietnamese population. This is particularly true in comparison with the agent orange litigation brought several years ago by US veterans: Due to domestic political pressure, the same chemical companies settled with veterans for US$ 180 million. No such settlement is on the horizon for Vietnamese victims. Do veterans suffer ‘more legitimately’ than the Vietnamese people?

"Sober Drunkenness": A Review of Kennedy's Critique of the Human Rights Movement

Human rights are often considered part of a leftist agenda. In an article for 2002 Harvard Human Rights Journal, David Kennedy – himself a “compassionate legal professional” whose political conviction is on the left of the spectrum – famously asked the question whether the human rights movement is “part of the problem” rather than the solution.

Kennedy’s critique focuses on the professional culture of the human rights movement. He argues that the human rights discourse dictates a vocabulary that makes other emancipatory projects likely to remain unheard; a vocabulary that blinds out other forms of suffering, such as suffering caused by private actors. His concern is that the human rights discourse attempts to cure the symptoms instead of addressing the causes. (One could perhaps interpret Kennedy as saying that the human rights discourse works as a kind of ‘opium for the people’, forcing them to translate their suffering into the language of legal claims rather than into concrete political action). Finally, Kennedy takes issue with the “18th through 20th century [Western] liberalism” embodied in the concept of human rights.

In his recent book entitled “The Dark Sides of Virtue”, Kennedy has further elaborated his theory. Alexandra Kemmerer, a German researcher at Würzburg University and a member of the editorial board of the German Law Journal, recently published a lucid and beautifully written review of Kennedy’s book in the Frankfurter Allgemeine Zeitung. Kemmerer convincingly argues that it would be wrong to light-heartedly give up the discourse of international human rights law as a whole. This – imperfect – “conversation of public international law” is a necessary pre-condition for the rational balancing of costs and benefits that Kennedy suggests.

Greater Middle East Programme

For a change just a link to an interesting article (in German language) in Telepolis about the origin of the Greater Middle East Programme. Worth reading!

Syria, Lebanon and the United States

On 28 February the pro-Syrian government of Lebanon has resigned due to the pressure by constant protests against the Syrian military presence in Lebanon and its dominating influence on Lebanese foreign and security policy. Some comments saw the resignation as a tactical move by the Syrian regime, aimed at reducing internal and external pressure following the assassination of former prime minister and then leading figure of the opposition Rafik Hariri on 14 February 2005. The future of Lebanon ist not decided, since both anti and pro-Syrian protesters took to the streets - the latter yesterday mounting to hundreds of thousands rallied by the Hezbollah. But what is the background of Syrian military presence in Lebanon?

Syria intervened in 1976 in the Lebanese civil war that had started one year earlier, initially supporting the Christian-Maronite side, but also fighting for their own agenda. Syrian troops were involved in the war almost constantly up to its end in 1990. Israel supported the Phalange (or Kataeb Party), also a Christian-Maronite force and became more and more involved in the conflict, culminating in the 1982 invasion. Other actors in the conflict included the PLO, the Shiite Hezbollah, the Lebanese Druze forces and various other militias. Western powers also intervened, but their efforts to end the war were doomed after the ill-fated U.S.-led intervention of 1983, where in suicide attacks by the Hezbollah 241 U.S. and 58 French soldiers were killed on April 18, 1983 by huge bomb blasts. The Soviet Union in turn provided arms and military personnel disguised as "advisers" to Syria.

By 1989 Syria had become the strongest actor in the civil war. Together with its allied militias it had managed to subdue almost all other factions. Peace negotiations took place in October 1989 in Ta'if, Saudi-Arabia. The meeting was attended by most of the surviving parliamentarians (the last elections were held in 1972) and supported by the United States. The result was the Ta'if Agreement which was endorsed by all participants save four muslim parliamentarians.

The Agreement, which was called "The Charta of National Reconciliation" inter alia stated:

Considering that the objective of the State of Lebanon is to spread its authority over all the Lebanese territories through its own forces, represented primarily by the internal security forces, and in view of the fraternal relations binding Syria to Lebanon, the Syrian forces shall thankfully assist the forces of the legitimate Lebanese government to spread the authority of the State of Lebanon within a set period of no more than 2 years, beginning with ratification of the national accord charter, election of the president of the republic, formation of the national accord cabinet, and approval of the political reforms constitutionally. At the end of this period, the two governments - the Syrian Government and the Lebanese National Accord Government - shall decide to redeploy the Syrian forces in Al-Biq'a area from Dahr al-Baydar to the Hammana-al-Mudayrij-'Ayn Darah line, and if necessary, at other points to be determined by a joint Lebanese-Syrian military committee. An agreement shall also be concluded by the two governments to determine the strength and duration of the presence of Syrian forces in the above-mentioned area and to define these forces' relationship with the Lebanese state authorities where the forces exist.

Thus the agreement sanctioned the stationing of Syrian troops in Lebanon, although providing for a strengthening of the Lebanese Government and leaving room for interpretation concerning an eventual withdrawal. It was signed on 22 October and ratified on 4 November 1989. However, the Ta'if Agreement was rejected by Michel Aoun, a powerful Christian-Maronite leader who opposed the stationing of Syrian troops and who had successfully continued to fight against the Syrian troops in 1989 and 1990. He was, inter alia, supported by Saddam Hussein. When Iraq invaded Kuwait in 1990 and Syria chose to side with the coalition forming against him, Syrian interests where now boosted and it was able to defeat Michel Aouns forces and drive him into exile in Paris. Some comments claim that Syria could only achieve success in its 1990 campaign because of U.S. support for its policy in Lebanon.

Official U.S. documents do not deny that the Syrian military campaign against Michel Aoun was politically backed by the U.S. - he is marked as "rebel general ... who had defied efforts at reconciliation with the legitimate Government of Lebanon". The Goverment of Lebanon at that time was strongly supported by Syria.

After the end of the civil war, the signing of a treaty of friendship between Syria and Lebanon and Israel's withdrawal from south Lebanon, all conditions for the redeployment of Syrian troops as called for in the Ta'if Agreement seem to be met. The U.S. even read the Ta'if Agreement as eventually stipulating for a complete withdrawal of Syrian troops and therefore strongly backed a UN Security Council Resolution 1559 (2004) which calls for a complete withdrawal of all foreign troops from Lebanon.

Michel Aoun is still campaigning for a Syrian withdrawal and has announced that he intends to return to Lebanon. That his cause now gets U.S. support - realpolitik or irony of history?

The Law’s "Majestic Equality": Enforcing Unequal Investment Contracts

“The law, in its majestic equality”, the French author Anatole France cynically noted, “forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” In international law, the concept of sovereign equality – a central building block of the international legal order enshrined in Article 2 No. 1 UN Charter – guarantees ‘equality before the law’. Lawyers tend to forget the fundamental inequalities that can be enforced through an equal application of the law.

Let’s have a brief look at the field of international investment protection. Liberal supporters of international investment law have pointed out that NAFTA’s Chapter 11 has proven to serve the Mexican interest – and not merely that of United States’ or Canadian companies. Roughly one third of NAFTA proceedings have been initiated by Mexican nationals (cf. http://www.naftalaw.org/).

Such a perspective loses sight of a fundamental underlying problem. Investment treaties serve to protect particular ‘investments’. Such investments are typically contractual arrangements (such as a participation contract or a concession) pursuant to which a developing country grants an investor the right to exploit its natural resources in exchange for a participation fee. Such investments may present the following inequalities:

• The participation fee is extremely low – often as low as 10 to 15%. This raises the question to what extent a people’s right to its natural resources is safeguarded (Article 1 of the Covenant on Economic, Social and Cultural Rights).
• The concession extends over a long period of time, without any possibility of adjustment. A ‘good government’ nowadays remains bound by an unfavorable arrangement agreed to by a ‘bad government’ several decades ago. This may hinder the sustainable development of the area in question.
• The concession relates to areas predominantly populated by indigenous people. This problem is particularly acute in the Amazon region. In disrespect of indigenous minority rights, governments have ‘sold off’ the land to a foreign investor.

Investment arbitration, no matter how equal the application of the investment treaty in question, inevitably serves to enforce such inequalities already present in the investment (see the example of Oxydental Petroleum v. Ecuador). Such inequalities cannot be avoided by a more equitable type of investment agreement (as recently proposed by the International Institute for Sustainable Development). Rather, public attention and pressure needs to focus on the equitable character of the investment itself. A new website called RED LISTED now introduces a platform for monitoring investments in light of the goal of sustainable development.

Peter Benenson

"Open your newspaper any day of the week and you will find a report from somewhere in the world of someone being imprisoned, tortured or executed because his opinions or religion are unacceptable to his government. The newspaper reader feels a sickening sense of impotence. Yet if these feelings of disgust all over the world could be united into common action, something effective could be done."

These were the words of Peter Benenson, wrtiting in The Observer on 28 May 1961. His campaign was intended to run for a year - it has led to an organisation with more than 1.8 million members and supporters: Amnesty International. And probably the campaign will have to continue for a long time, until maybe one day there will be no more torture and executions. But unfortunately the campaign has to continue without Peter Benenson.

Peter Benenson died on Friday, 25 February 2005 at the age of 83.

No hope for a tsunami peace dividend in Sri Lanka?

The tsunami of 26 December 2004 hit many war-torn world regions: Among them Sri Lanka, with its civil war lasting now more than 20 years, the Indonesian island Aceh, where rebel groups fight the central government in Jakarta, and Thailand, which has to struggle with insurgents fighting for the independence of the muslim south of the country. Even Somalia, where central government is virtually inexistent, was hit by the giant wave. The effect of the tsunami on Burma (or Myanmar) is not yet known, due to the information policy of the regime in Rangoon. But will the tsunami have an influence on these conflicts?

So far this question has been especially discussed in connection with Sri Lanka. Signs from the region are conflicting. How much direct military capabilities of the parties have been affected still has to be determined. Initial reports that the LTTE, the Tamil rebels in Sri Lanka, lost a significant part of their fleet were apparently not based on facts. On the other hand, the LTTE-controlled part of the island was hit badly, leaving room for speculation about the effect on the LTTE forces, especially on their supply chain. The LTTE is listed on the United States' official list of terror groups since 1997.

Some comments speak of a possible "peace dividend", if aid is equally distributed among all groups affected, leaving room for reconciliation efforts. But so far signs from the areas affected are less encouraging. Janes.com reports that initial joint aid efforts in Sri Lanka are now hampered by the government's desire to control all external relief efforts, although the government denies these accusations. Additionally, a senior leader of the LTTE was killed in an attack on 7 February 2005, possibly by a breakaway rebel faction within the Tamil movement. He was apparently returning from aid negotiations. This was the highest-ranking official to be killed since the government and the rebels signed a ceasefire agreement in February 2002. The LTTE announced that the truce was endangered by the incident. These developments prompted the Secretary-General of the UN, Kofi Annan, to condemn the killing and to "urge all parties to exercise calm and restraint so as to avoid actions that could disrupt the ceasefire agreement".

If there can indeed be a "peace dividend" in Sri Lanka will probably be decided when it comes to the distribution of long term aid projects. If the Tamil minority feels that aid is cut from their territory or if they suspect that central government in Colombo tries to exert control via aid projects, chances for a continued peace process are bleak. Confidence-building measures between the parties seem to be the only way to avoid a new eruption of the conflict. Today's efforts by Norway to act as peacebroker in the conflict again may offer the only small ray of hope.

Serbia and Montenegro... divided we stand?

Serbia and Montenegro never looked like a love marriage. The Union emphasizes its members' sovereignty, rather than the sovereignty of the entity of Serbia and Montenegro. According to Article 2 of the Charter of the State Union of Serbia and Montenegro, the Union "shall be based on the equality of the two member states, the state of Serbia and the state of Montenegro." The Union's territory is composed of the territories of Serbia and of Montenegro. Belgrade is but the "administrative center" of the Union.

As far as membership in international organizations or succession to treaties of the Federal Republic of Yugoslavia (FRY) is concerned, however, international lawyers have got used to dealing with Serbia and Montenegro as a single entity. In accordance with Article 63 of its Charter, Serbia and Montenegro has assumed most international obligations of the FRY.

At the February 15th 2005 meeting, the WTO General Council accepted separate applications for membership of the Republic of Serbia and the Republic of Montenegro and agreed to the establishment of Working Parties to start negotiations. At the same time the application of “Serbia and Montenegro” was withdrawn and Serbia and Montenegro ceased to be an applicant and an observer.

A prelude to a divided stand in other international organizations?

For the history of Serbia and Montenegro's membership in the United Nations, cf. the recent ICJ judgments in the use of forces cases. Click here for the Charter of the State Union of Serbia and Montenegro.

'Franz K.' in Guantanamo

"Well, what do you want?" said K. ... "No", said the man at the window, throwing the book on the table and rising from his chair. "You must not leave, after all you are arrested." - "It looks like it", said K. "And why, if I may ask?" he then asked. "We are not in a position to tell you. Go to your room and wait. Now the proceedings have been initiated and you will learn everything at the proper moment."

"How can I possibly be arrested? And then even in such a manner...?" - "Now you are starting all over again" said the guard and dipped his slice of bread into the honey keg. "We do not answer such questions." - "You will need to answer them", said K. "Here are my legitimation papers, show me yours and, more importantly, the arrest warrant." - "Good heavens!" said the guard. "That you are not able to bow to your situation..."

"I can certainly not tell you that you are being accused or, rather, I do not know. ... If, however, I do not answer your questions, I would nonetheless advise you: do not think so much of us, of what is going to happen to you, think more of yourself. And do not make such a noise of your sentiment of innocence, it disturbs the not even bad impression that you otherwise leave."

Obviously, Franz K.'s experience is singular, fictitious, full of paranoia and in any event clearly outdated, isn't it? After all, nowadays, stringent procedural safeguards render similar derailments of the machinery of justice impossible. Really? Then check out the following excerpt of an interrogation of an AlQaeda suspect before the US military Combatant Status Review Tribunal (CSRT) in Guantanamo. Please take a few minutes to read the excerpt on pp. 46 - 48. Truly kafkaesque.

Luckily, American district courts have partly quashed the resulting decisions due to an evident lack of procedural fairness. However, the basic concern remains: In the 21st century, the judicial machinery remains totally capable of serving as a diffuse and compliant instrument of political power. All this in the name of morality, justice and a "better world" without terror.

Quotes from Franz Kafka, The Trial, 1914.