Posts by Yeniva Massaquoi
Change of Guard / Changement de garde
Dear Friends,
Thank you for following Legal Frontiers this past year. We are proud to have successfully completed almost two years in publication. This year, we were proud to have initiated some new changes to the blog. In addition to our student contributors, we were able to solicit high calibre Guest and Special articles from external experts on international law. Further, we increased our French language article contribution – an important step toward our vision of a truly international law blog. Recently, we also introduced an interview section to the blog that is aimed at illuminating the experiences of international legal practitioners. It has been an enjoyable year filled with many great reads and great comments.
On behalf of the 2010-2011 executive, I would like to welcome the new 2011-2012 Legal Frontiers Executive. This year we will have two Contributors-in-Chief, Keiran Gibbs and Raphael Girard. Our Executive Contributor will be Kim Lee. We look forward to exciting changes to come under their mandate.
Chers amis,
Nous avons été heureux d’apporter quelques nouveautés au blogue cette année. En plus des contributions étudiantes, nous avons eu la chance de publier des articles de haut calibre rédigés par des experts en droit international. De plus, nous avons augmenté le nombre de publications en français – un pas important vers la réalisation de ce qui constitue un blogue véritablement international à nos yeux. Nous avons aussi…
Elusive Goal: The Sluggish Progress of Forced Disappearances at International Law
Forced disappearances present an interesting picture of International Human Rights: namely the tension between responsibility and denial. From its earliest condemnation at Nuremberg, there has been a social consensus that forced disappearance is part of the collective responsibility that the human rights project attempts to address. However, forced disappearance has not made the same progress as other violations (like torture); instead, its relative importance has been overpowered by political agendas determined to deny the exact nature of the violation. In this short article, I will examine why forced disappearance remains underdeveloped and consider the relevance of the framing of the issue to its failed trajectory.
After Nuremberg but Before an International Declaration
Nacht und Nebel, a Nazi policy that disappeared civilians from occupied territory, is billed as the first instance of forced disappearance. At Nuremberg, Army Chief Keitel was sentenced to death partly because of his role in executing Nacht und Nebel. From Nuremberg onwards, case law has played an important role in shaping the normative principles of forced disappearances (here at 101). Particularly in the absence of specific international instruments, international courts and committees filled the gap by tailoring general human rights treaties to forced disappearances. In Bleier v. Uruguay, for example, the Human Rights Committee found that the Uruguayan government had breached ICCPR articles 7 (prohibition of torture), 9 (right to liberty and security)…
Welcome Back
We are pleased to welcome you back to Legal Frontiers. Legal Frontiers represents the germination of the emerging genre of ‘academic blogging’. In the past year, this blog has transitioned from an exceptional idea to a successful international law blog garnering up to 200 unique visits a day. Through a growing network of global commentators, our Contributors have had their ideas on international legal issues tested and cultivated. These efforts were rewarded earlier this summer with the McGill Law Students Association award for Best Club.
As we move forward, we would like to thank our outgoing Contributors for their efforts in making this blog a success. Furthermore, we thank the professors that have provided us with the advice and resources to make this blog possible. Finally, we would like to thank the following institutions and individuals for their financial support: the McGill Law Students’ Association, the Dean’s Discretionary Fund, the Alumni Association Student Fund, the Rathlyn Foundation and Professor Kim Brooks’ International Tax Law Honorarium.
De plus, alors que le blog reprend son essor et que les anciens contributeurs passent le flambeau aux nouveaux, sans oublier ceux qui sont restés, pour l’année à venir, nous désirons inviter et encourager les lecteurs à participer activement à la vie du blogue, à commenter les articles et à faire part de leurs opinions. Toute discussion ou recherche du savoir n’avance que par le…
We Are Recruiting
Call for Applications for Legal Frontiers: McGill’s Blog on International Law
All interested undergraduate and graduate law students are invited to apply for the following positions:
Executive Contributor (1)
Senior Contributors (8)
Junior Contributors (~10)
Publicity Coordinator (1)
Aucune expérience en blogage n’est requise! Ceux qui s’intéressent devraient (a) être enthousiastes pour la rédaction académique et (b) avoir un intérêt pour ce qui touche au droit international. The blog will focus on “academic blogging”, a new genre of legal discourse, and expose student writing to a wide audience. All positions involve a one-year commitment. All positions (except Publicity Coordinator) are open to students who will be on exchange this year.
For more information on the blog, you can visit: www.legalfrontiers.ca
1. Executive Contributor (1)
The executive contributor will:
- manage the blog’s finances: initial budgeting, allocation of funds, application for grants, and fundraising;
- extending invitations to potential distinguished guest bloggers;
- copy-editing entries submitted online;
- writing 1 blog entry every 3 weeks;
- moderating the comments written in response to the blog postings;
- preparing the semester’s blogging schedule;
- sending out an email at the beginning of each week of the blogging schedule for that week;
- help ensure the academic nature of the blog by raising concerns of diminishing academic quality with the Coordinating Editor and at general…
Jekyll or Hyde: Curtailed justice at the ICC?
The Security Council’s ability to suspend ICC investigations destabilizes the necessary independence of the court. Through Article 16 of the Rome Statute, the SC moves the ICC beyond a legal ideal into a political reality where diplomatic peace and justice can sometimes conflict. For reasons laid out below, this legal/political tension suggests that Article 16 is a Jekyll and Hyde provision. To consider Article 16 as a positive aspect of the Rome Statute, its dual character must be monitored through a continuous case-by-case assessment. This article will consider the implications of Article 16 and the possible consequences arising from Resolution 1422.
Article 16 – On Compromise and Politics
Article 16 represents a compromise between the SC and the ICC. In its earlier form, Article 16 prevented the ICC from commencing a prosecution on any situation being dealt with by the SC unless the SC decided otherwise [here at 1509]. This broad provision would have jeopardized independence of the ICC and left it susceptible to the political motivations of the SC. Viewed through a lens of compromise, the current version of Article 16 is a more palatable alternative. It arguably strikes an essential balance between recognition of the Security Council’s primacy over international peace and security and the Court’s independence. While the article still alters the independence of the ICC, it allows for investigations to continue…
Regionalization of International Criminal Law on the African Continent?: Ubuntu and Amnesty
On 15th December 2009, the African Court on Human and Peoples’ Rights (ACHPR) rendered its (much awaited) first decision – In the Matter of Michelot Yogogombaye v The Republic of Senegal.[1] In the case, Michelot Yogogombaye brought an application against Senegal with a view to suspend Senegal’s ongoing legal proceedings against Hissène Habré, former President of Chad.[2] Habré is suspected of complicity in crimes against humanity, war crimes and acts of torture in Chad between 1982 and December 1990.[3] Yogogombaye alleged that Senegal had violated the legality principle by amending their Constitution to authorize “retroactive application of its criminal laws, with a view to trying exclusively and solely Mr. Hissène Habré”.[4] Although the ruling did not move beyond the merits in finding that Senegal had not accepted the Court’s jurisdiction,[5] some of the arguments outlined deserve attention. In this case note I will focus on the arguments on the issues of amnesty to draw out the regional flavour in the approach.
Amnesty and Ubuntu: Shared objective?
An interesting feature in the judgment was that Yogogombaye urged the Court to order that Senegal utilize the philosophical concept of ubuntu to develop a national “Truth, Justice, Reparations and Reconciliation” Commission for Chad on crimes committed between 1962 and 2008.[6] Ubuntu (or African Humanity) is a philosophy that attempts to capture the intersection of justice and humanity…
Piercing the Veil of State Immunity: Exceptions to the rule
Incumbent head of state immunity at international law is a multi-layered issue. Whether an incumbent head of state always has immunity therefore depends on certain variables. In this short piece, I will discuss the current state of the law on state immunity.
Revisiting old tensions: Horizontality
Incumbent head of state immunity hugs the boundaries of the verticality/ horizontality discourse. Although derived from customary international law, state immunity is rooted in the horizontal level through its objective of maintaining a peaceful coexistence[1] between States and ensuring states’ sovereignty. As underscored in Arrest Warrant[2], courts at the horizontal level cannot interfere with head of state immunity because such an action would hinder the effective performance of the official’s duties. At this level, there is no exception for State official immunity – not even for derogation of jus cogens norms.[3] Although this may seem a high price to pay to grease the wheels of international camaraderie, some argue[4] that absence of immunity in relation to human rights violations is more likely to hinder international cooperation than it is to significantly increasing protection of human rights.[5]
Peeling back the layers: Ratione materiae and Ratione personae
Viewed through a human rights lens, the finding of absolute immunity in Arrest Warrant is contentious. However, I argue that in failing to make a clear distinction between ratione materiae and ratione personae, the Arrest…
Toward a Right to Development? : Reflecting on the Endorois Decision
Last month, the African Commission on Human and Peoples’ Rights (“ACHPR”) handed down a decision on the Endorois peoples’ situation in Kenya. The decision not only marks the end of a nearly 40 year struggle by the Endorois people against the Kenyan government but it also heralds the increasing importance of the third generation human right to development.
The Endorois people are a sub-tribe from central Kenya that were evicted from their lands near Lake Bogoria in the 1970s. The government relocated them to an area that limited their access to a clean water source, central sites of worship and other daily requirements for their pastoral way of life. The Kenyan government failed to provide compensation for this eviction but still proceeded to develop a Game Reserve on the Endorois former lands.
After exhausting all domestic avenues for remedy, the Endorois – with the help of Minority Rights Group International – brought their case before the ACHPR. The ACHPR is a quasi-judicial regional body that renders non-binding decisions aimed at protecting human and collective rights in Africa as envisaged by the African Charter on Human and Peoples’ Rights (“African Charter”). Although non-binding, I believe that the decisions from the ACHPR can be viewed as a snapshot of general zeitgeist. Indeed, until the African Court on Human and Peoples’ Rights starts delivering decisions regularly, the Commission’s decisions will remain…
Corruption of Waldo: Where in the world is President Umaru Yar’Adua
The Nigerian president, Umaru Yar’Adua, has been away from his country since November 2009. No one has seen him. The official line is that he is in Saudi Arabia receiving treatment for an undisclosed illness. On January 12th 2010, he finally acknowledged his countrymen’s concern by calling BBC radio to make a brief public statement to prove that he was not yet beyond death’s door. On January 13th, a federal court declared that Vice President Goodluck Jonathan can perform all presidential duties while the president is away. However, the judgement is ambiguous: Jonathan’s new role lends him no substantive constitutional authority to be acting president, except that transmitted to him by the president.
What has been most bewildering about the president’s absence is the subtle yet apparent lack of leadership that continues to cloud Africa’s most populated nation. Legally, the January 13th ruling was supposed to put the country back on track. Yet, the judgement has failed to soothe tempers. As recently as January 27th 2010, the Nigerian cabinet and Senate continue to be at odds regarding who is governing their country. The question seems to remain: how do we account for the governing activity from November 2009 to now? In particular, what of the 2010 budget that is being negotiated in the president’s absence? It is true that in the time Yar’Adua has been away,…
