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1241. General Principles Regarding the Legal Validity of RUD

Author:
Eric Chung
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This paper examines the legal validity of reservations, understandings, and declarations (RUDs) in both U.S. and international courts. The analysis is based on 46 U.S. cases discussing RUDs as a general category and 26 U.S. cases discussing interpretative understandings and declarations, out of approximately 650 reviewed cases. The analysis is also based on 13 cases from international courts out of approximately 300 reviewed cases, including cases from the International Court of Justice (ICJ), the United Nations Convention on the Law of the Sea (UNCLOS) tribunal and arbitral bodies, the European Court of Human Rights, and the Inter- American Court of Human Rights. In the U.S. cases, RUDs are nearly always recognized as valid. For example, non-self- execution reservations in the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR) are usually treated as legally controlling. The same is true for the reservation to the ICCPR that reserves the right to use capital punishment on juveniles despite treaty prohibitions, as well as interpretative understandings and declarations defining specific terms used in the CAT. U.S. courts have only questioned the validity of RUDs when they were not properly communicated to other state parties, did not support a contrary interpretation, or focused on issues of wholly domestic concern (although the only case on this point was vacated and is not precedential). In addition, individual circuit judges, writing in dissent, have examined whether RUDs violate the separation of powers principle or are inconsistent with the treaty language and international law. With few exceptions, international courts also usually defer to RUDs. The ICJ has indicated that it can invalidate a reservation as incompatible with the object and purpose of a treaty pursuant to Article 19 of the Vienna Convention on the Law of the Treaties. Yet the ICJ has only invalidated a RUD when it determined that a reservation was in fact an interpretative declaration (as opposed to a reservation modifying the state’s legal obligations under the treaty). This has been particularly important in cases where the treaty in question prohibits reservations, such as the UNCLOS. Rules stipulated by a treaty also shape how other courts review RUDs. The European Court of Human Rights, for instance, applies treaty rules to invalidate RUDs that are of a general character or fail to include a statement of the law concerned. Following a number of practices can reduce a RUD’s vulnerability to invalidation in U.S. and international courts. For U.S. courts, a RUD is extremely unlikely to be questioned if it is documented clearly at the time of ratification and communicated to all treaty parties at the time of ratification. For international courts, a RUD is unlikely to be questioned if, in addition to the above factors, it is not counter to the “object and purpose” of a treaty, it is not objected to by other parties, and it is not a reservation masquerading as an interpretive declaration in a situation where reservations are prohibited by the relevant treaty.
Topic:
Human Rights, Law, Legal Theory, and Courts
Political Geography:
United States of America and North America

1242. The Applicability of International and Domestic Immigration Law to Relocated Guantanamo Detainees

Author:
Sarah Weiner
Publication Date:
11-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The physical relocation of detainees from Guantanamo to the United States would not meaningfully alter U.S. obligations under domestic immigration law or international law concerning refoulement. Domestic immigration law would not affect U.S. authority to bring aliens into the United States and to detain those aliens under the laws of war. Detainees would not enter the United States as immigrants, but rather would remain legally “at the border” during their detention. If a detainee secures his release from law-of-war detention, then the United States would be prohibited from transferring the former detainee to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture. This obligation applies equally to detainees held at Guantanamo and in the United States. If the United States could not find a suitable country to accept the former detainee, then the United States may have the authority to hold the alien indefinitely in immigration detention, provided that his custody meets statutory requirements. This authority is constitutionally untested and potentially inconsistent with obligations under international law, but these concerns would apply equally to both Guantanamo- and U.S.-located former detainees.
Topic:
Law, Prisons/Penal Systems, War on Terror, and Detention
Political Geography:
North America, United States of America, and Guantanamo

1243. Social Innovation and Aboriginal Communities

Author:
Iryna Volynets
Publication Date:
03-2015
Content Type:
Policy Brief
Institution:
Institute for the Study of International Development, McGill University
Abstract:
Improving the lives and contributing to a more resilient society requires breakthrough ideas and approaches, game changing strategies and collaborations, and continuous innovation. Social innovation combines all of the above and is already bringing significant advances in areas such as reducing prisoner reoffending, caring for children and the elderly, community regeneration, financial inclusion, and supported housing. It has the potential to generate great benefits to the Indigenous communities in developed countries. While governments in Canada acknowledged the importance of social capital and social economy, and have been active in these areas in the recent years, a cross-sectoral national strategy to advance social innovation needs to be in place. There is no established labour market policy or program in Canada that would have social innovation aspects embedded in it as compared for example to the EU. The new policies are required for the further development of social finance and social enterprise sector. In September 2014, the Canadian National Advisory Board published the report Mobilizing Private Capital for Public Good: Priorities for Canada. The recommendations in the report for the domestic policy agenda are seen as a basis in this environmental scan for the potential future developments in the social innovation arena. More specific considerations for urban Aboriginal communities in Canada are also offered in this paper. Overall, this environmental scan attempts to (1) offer a vocabulary and an analysis of social innovation activity internationally and in Indigenous communities in particular, (2) discuss key issues and innovative approaches in labour market programming in Canada and abroad, and (3) offer considerations for Aboriginal communities in Canada to continue and expand the dialog with the policy makers. However, given the complexity of the issues that Aboriginal communities are facing, most considerations and recommendations are context-dependent and require further research. The research field of social innovation in the context of Aboriginal communities can be described as an opportunity not only to explore trust, balance, respect, and understanding in relationships between indigenous and non-indigenous peoples, but also to focus on the market-based strategies to achieve business targets while creating public social benefit. There still remains a gap in both literature documenting the statistics on Indigenous social enterprises and impact investing in Aboriginal businesses, the means of addressing issues in building Indigenous social enterprise pipeline, and the mechanisms in place for evaluating the effectiveness of the government or other programs targeted at improving Indigenous economic development through social innovation. Future research directions should focus on the abovementioned issues as well as on applications for innovations in job skills training and labour market programming in Canada and abroad.
Topic:
Government, Innovation, Indigenous, and Social Capital
Political Geography:
Canada and North America

1244. What a Real Liberal Foreign Policy Would Look Like

Author:
Jeffrey Lewis
Publication Date:
06-2015
Content Type:
Working Paper
Institution:
James Martin Center for Nonproliferation Studies
Abstract:
Chris Murphy, Brian Schatz, and Martin Heinrich — three Democratic members of Congress — have written an essay in Foreign Affairs titled, “Principles for a Progressive Foreign Policy.” It is, of course, predictably, terrible. My colleagues are already forming up. Being a good progressive, I can’t resist embroiling myself in the coming silliness. What really bothers me about the essay is that, despite the title, there are no “principles” to be found anywhere in the text. Just some well-worn clichés (a “new Marshall Plan”) and anodyne recommendations (consult with allies). The essay does not offer a principle that might distinguish those of us on the left from our friends on the right or a principle that might link our domestic and foreign policies. That’s a pretty important thing if we hope that future Democratic administrations will be able to articulate a strategy that amounts to more than “Don’t do stupid shit.” As it happens, I believe there are such principles — or at least there are for lapsed philosophers like me. My very American strand of liberalism — and I prefer the phrase “liberalism” to “progressivism,” given my choice in philosophers — is defined by the work of the late John Rawls. He argued that justice is the first virtue of social institutions, and his works, A Theory of Justice and “Justice as Fairness,” made arguments about what a just society should look like. One particular principle stands out. After articulating the importance of certain liberties that could not be compromised and the importance of equality of opportunity, Rawls asked how society should view inequality.
Topic:
Foreign Policy, Inequality, Leadership, and Liberalism
Political Geography:
North America and United States of America

1245. Ensuring Deterrence against Russia: The View from NATO States

Author:
Miles A. Pomper
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
James Martin Center for Nonproliferation Studies
Abstract:
Russia’s military actions in 2014 and 2015, particularly in Crimea, Ukraine, and Syria, have upended expectations among NATO members about their security and the future course of NATO-Russian relations. In response, many of the NATO states bordering Russia have argued for reinvigorating NATO’s deterrent capabilities after two decades of drawing down conventional and nuclear forces in the immediate post-Cold War era. At its 2014 summit in Wales, NATO agreed to a number of short-term measures to bolster the alliance’s conventional deterrent, dubbed the Readiness Action Plan. But as the standoff with Russia has continued, some analysts—particularly in the United States—have argued for additional deterrence measures, including in the nuclear realm. In response, researchers from the James Martin Center for Nonproliferation Studies of the Middlebury Institute for International Studies at Monterey travelled to the NATO front-line states of the Czech Republic, Estonia, Lithuania, Poland, Romania, and Turkey to assess the perceptions of governmental and nongovernmental experts regarding how NATO should respond to Russian actions, with an emphasis on how nuclear issues should be addressed. Our research also included meetings with experts in Germany, the United Kingdom, and the United States, as well as a thorough review of existing literature in the field on issues such as Russia’s new military approach and US nuclear weapon policies—past, present, and future. It was conducted with the aim of providing analysis and recommendations to NATO states in advance of the July 2016 NATO summit in Warsaw. The following report highlights the key findings of this research, provides analysis on a country-by-country basis, and concludes with recommendations for consideration in Warsaw.
Topic:
NATO, Regional Cooperation, Military Strategy, and Deterrence
Political Geography:
Russia, United Kingdom, Europe, North Atlantic, Germany, North America, and United States of America