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391. Historical Dialogue on Cham Issues

Author:
The Harriman Institute
Publication Date:
02-2015
Content Type:
Working Paper
Institution:
The Harriman Institute
Abstract:
Professor Lambros Baltsiotis (Adjunct Lecturer, Research Centre for Minority Groups - Athens, Panteion University) and Professor Pellumb Xhufi (Professor of History, Albania Institute of History) participated in the second meeting. The organizers requested them to prepare scholarly perspectives of about 1,000 words commenting on the following statement: "Cham-Albanians suffered internment beginning in 1940, killings in 1944-45, and expulsion in 1945. Thousands of Cham-Albanians were killed in 1944 and 1945. These events occurred in a context and cycle of violence. It is alleged that Cham-Albanians were collaborators with the fascist and Nazi governments of Italy and Germany during World War II."
Topic:
Genocide, Human Rights, Violence, and World War II
Political Geography:
Europe, Germany, Balkans, Albania, and Italy

392. Between Evolution and Stagnation – Immunities in a Globalized World

Author:
Heike Krieger
Publication Date:
08-2015
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Immunities here have, on the one hand, been calls for the limitation or even the abolition of immunities, in particular based on the argument of a lack of responsibility for grave violations of human rights. Contrarily, opposed tendencies can be observed which raise ideas such as the extension of the scope of persons to be protected by immunities, resting upon the pluralization of actors in the globalized world. This article examines these two contradictory aspects of development of immunities in public international law and how they might interrelate with each other. It analyses how the simultaneous evolution and stagnation of immunities can be explained. For that purpose the contribution evaluates at first the current state of the legal development. Further, it takes a look at a certain stagnation of legal development and clarifies the structural parameters within public international law which have led to such a stagnation. In this context, it is critically dealt with the question, whether immunities meet the demands of a globalized world. Lastly, this article addresses the development regarding a denial of immunity in cases of grave human rights violations and asks how it could be more cautiously brought forward.
Topic:
Globalization, Human Rights, and Legal Theory
Political Geography:
Global Focus

393. 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

394. Comparative Approaches to Reconciliation: Canada, United States of America, Australia and New Zealand

Author:
Ben J. Geboe
Publication Date:
01-2015
Content Type:
Policy Brief
Institution:
Institute for the Study of International Development, McGill University
Abstract:
This paper examines the approaches taken by the Governments of Canada, Australia, New Zealand and the United States to address the issue of reconciliation with Indigenous peoples. A wide array of activities have been employed in these countries to improve relations with Indigenous communities. The paper notes that no single program or policy can address reconciliation, and that much remains to be done in order to achieve societies that are cognizant of the historical and contemporary contexts that have contributed to the current socio-economic reality of Indigenous peoples in the four countries examined. The definition of reconciliation is also complex and no single definition can be deemed to capture the dynamic of state and community relations. The review of policies and programs addressing reconciliation in the four countries examined is not exhaustive in nature. Programs and policies have been chosen based on government and community feedback indicating they were making a difference. From these experiences, key elements of programs and policies required to address reconciliation are compiled. The findings stress that reconciliation is a long-term process, based on truth, informed decision-making and accountability on the part of all partners involved. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is used as a lens to observe whether it can be used to address reconciliation efforts in a constructive manner. Many experts argue that the spirit of the UNDRIP could act as a symbolic guide and framework to address reconciliation efforts. In conclusion, the paper notes that reconciliation efforts in each country will require support and long term commitment from all sectors of society. It will also require the renewal of a partnership based on mutual long-term goals and objectives. The partnership must be closely monitored, supported and be based on mutual respect and accountability if it is to flourish.
Topic:
Human Rights, United Nations, Indigenous, and Reconciliation
Political Geography:
Canada, Australia, New Zealand, and United States of America