Friday, June 26, 2009

Some Things Old, Some Things New

A selection of last week’s new arrivals.
  • Fictions of Justice: the International Criminal Court and the challenge of legal pluralism in Sub-Saharan Africa by Kamari Maxine Clarke (2009). ISBN 9780521889100 (Dedicated to Chima Ubani, Nigerian human rights leader killed in a motor accident in 2005).
The book explores how notions of justice are negotiated through everyday micropractices and grassroots contestations of these practices. Part One of the book “Multiple Domains of Justice” maps the formations of secular human rights development, Part Two “The Politics of Incommensurability” exposes the controversies over such formations, focusing on questions of religious violence and implementation of the Shariah.
This multidimensional and scholarly collection of 11 essays was inspired by the conference proceedings of a three-day conference organized in 2005 by the University of Western Ontario’s Holocaust Literature research Institute to discuss the political and humanitarian crisis in Darfur. Most of the authors presented an earlier version of their chapters there. Romeo Daillaire, who was force commander of the United Nations Assistance Mission in Rwanda (UNAMIR) in 1993-1994 wrote a compelling account of his experiences in the region in his foreword. The authors focus on the genocide in Rwanda, mass-atrocities in Darfur, international media coverage of these events, NGO campaigns and the eventual failure of the international community to prevent or stop crimes against humanity.
An excellent study of the historical, political, and legal arrangements of this remarkable piece of land. The practice of territorial leasing expanded toward the end of the 19th century as an accepted part of treaty law and customary international law. An example is the lease of Hong Kong’s New Territories by Great Britain from China in 1898. The expiration of the lease expired in 1997 and sovereignty was transferred to the People’s Republic of China. The Guantanamo Bay lease, in 1903 by the United States from Cuba, for coaling and naval stations, has created “a Frankenstein-like territory that eluded the legal control of its creators”.

Back to the past, the 17th and 18th century:
  • The Elements of Law. Natural and Politic: Part I, Human Nature, Part II, De Corporo Politico; with three lives / Thomas Hobbes, ed. with an introduction and notes by J.C.A. Gaskin (2008). ISBN 9780199549702
The biography of Heineccius follows his footsteps from Halle, to Franeker and Frankfurt and highlights his importance as one of the most influential jurists of the 18th century. He published on Roman Law, German Law and Natural Law.

Both books are extremely important for the study of the history of international law. The old and rare books section contains some 10.000 titles of works published before 1850, with fine editions of the works of Grotius, Pufendorf, Burlamaqui, and Bynkershoek to name a few.

Tuesday, June 16, 2009

Maritime Cultural Property and Treasure Hunting

Archaeological sites in international waters are numerous and still largely untouched. With the development of sophisticated technology for the search and recovery of shipwrecks on the ocean floor, however, issues of ownership, preservation, and cultural property rights have achieved increasing prominance. In particular, after the discovery of RMS Titanic in 1985 the debate among marine archaeologists, cultural rights proponents and commercial salvage companies about treasure hunting in international waters has intensified. Although both the 1982 United Nations Convention on the Law of the Sea and the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage promote the preservation of shipwrecks, the debate about which shipwrecks can be explored and what cargo can be retrieved continues, often leading to protracted legal battles.

A clear illustration of this is the case of Odyssey Marine Exploration, Inc. v. Unidentified, Shipwrecked Vessel (No. 8:07-CV-00616, M.D. Fla., filed 9 April, 2007). In his report on the case [PDF], issued last week, US Judge Mark A. Pizzo concluded that an estimated $500 million worth of silver and gold coins and other artifacts removed by the salvage company Odyssey Marine Exploration from a colonial-era shipwreck in the Atlantic belonged to a sunken Spanish warship and should be returned to Spain.

The legal dispute started back in May of 2007 when Odyssey discovered the shipwrecked treasure in international waters about 100 miles west of the Straits of Gibraltar at a site they code-named “Black Swan.” Soon after the discovery Spain filed legal claims contending the treasure was removed from the Spanish frigate Nuestra Senora de las Mercedes and demanded the return of all the items brought up from the site by Odyssey.

In August 2008, also Peru, a former Spanish colony, filed a conditional claim which stated that the treasure may be part of its patrimony and that it is entitled to any property that originated in Peru and was produced by its people.

The historical documents presented in the case show that the Mercedes, carrying treasure back from Peru, was sunk in combat against the British on the 5th of October 1804, off the coast of southern Portugal, resulting in a war between the two countries. Spain asserted that the vessel and its cargo are part of its cultural heritage, not to mention being the grave site of more than 250 Spanish sailors and citizens who died when the frigate exploded and sank. The Spanish government also defended the right of sovereign immunity that asserts the right of a nation to protect its historic sites and heritage, including sunken ships, from any kind of disturbance or plundering by treasure hunters.

According to Odyssey the treasure had been found in international waters and therefore beyond the legal jurisdiction of any one country and had been legally retrieved. It defended its claim that Spain cannot prove the treasure was removed from the Mercedes.

In his report Judge Pizzo fully accepted the arguments of the Spanish government and stated that the shipwreck is, in fact, the Mercedes and so the cargo is covered by sovereign immunity and may not be salvaged and kept by others. The Foreign Sovereign Immunities Act grants immunity to a foreign state’s property in the US from being taken and none of the exceptions Odyssey offered to a federal law applied, he said.

In his conclusion Judge Pizzo stated: “More than two hundred years have passed since the Mercedes exploded. Her place of rest and all those who perished with her that fateful day remained undisturbed for the centuries – until recently. International law recognizes the solemnity of their memorial, and Spain’s sovereign interests in preserving it. ... This Court’s adherence to those principles promotes reciprocal respect for our nation’s dead at sea. … It is this comity of interests and mutual respect among nations, whether expressed as the jus gentium (an impetus to exercise judicial authority) or as sovereign immunity (an impetus for refraining from the exercise of judicial authority), that warrants granting Spain’s motions to vacate the Mercedes’s arrest and to dismiss Odyssey’s amended complaint.”

Judge Pizzo recommended that US District Judge Steven D. Merryday, who will issue a final order, drop the case as the US lacks jurisdiction over it and order the property returned to Spain.

The recommendation marks the latest step in the lengthy battle between Odyssey and the government of Spain, and in view of its consequences for treasure hunting in international waters the end might not yet be in sight. Both Odyssey and the government of Peru announced that they would contest the recommendation.

On this issue, see, e.g., the recent article by Cahal Milmo: Why is there a storm brewing over the right to plunder shipwrecks?, in The Independent, 9 June 2009. See also the blog posted by Dan on Archaeopop: International Booty Battle.

Wednesday, June 10, 2009

Shell Settles Nigerian Claims of Human Rights Violations

On Monday, 8 June Royal Dutch Shell, Europe’s largest oil producer, reached a $15.5 million dollar settlement in a lawsuit brought against it by the families of the nine Nigerian activists who were killed in 1995. The lawsuit, which was brought to a New York court under the US Alien Tort Claims Act (ATCA), accused Shell's Nigerian subsidiary of complicity in the hanging and the killings or persecution of the environmental activists.

The ATCA allows non-US citizens to sue companies registered in the US for alleged international human rights violations. Shell, which fought the lawsuit for more than thirteen years, was told recently by a federal court of appeals that the plaintiffs could sue the company's Nigerian subsidiary in American courts, overturning a March decision in the company's favor.

Shell said the payment is a humanitarian gesture to the people of the Ogoni region. The company did not admit any wrongdoing in the deaths of the nine activists, which included Ken Saro-Wiwa, a well-known Nigerian activist and writer who founded the Movement for the Survival of the Ogoni People to protest against Shell’s oil exploration in the Niger Delta. Mr Saro-Wiwa and eight fellow activists were executed in 1995 after being found guilty by a three-man military tribunal on what their families and supporters claim were trumped-up charges of causing the death of four Ogoni elders.

The settlement funds will be used to compensate the plaintiffs, establish a trust to benefit Nigeria’s Ogoni people, and cover some legal fees, according to court papers.

The plaintiffs claimed the case set a precedent for oil companies operating in regions such as West Africa by demonstrating that they could "be brought to trial in America for human rights violations in Africa." In earlier similar trials, however, multinational companies have never been found liable of human rights violations by a US jury. In one case of alleged human rights violations in Myanmar a multinational (Unocal Corp.) also settled out of court.

The case is Wiwa v. Royal Dutch Petroleum, 96-cv-08386, U.S. District Court, Southern District of New York (Manhattan).

Thursday, June 4, 2009

Great Losses

Last week Professors Thomas Franck (1931-2009) and Sir Derek Bowett (1927-2009) passed away. They had impressive careers in the field of international law. No doubt they have been aware of each others work. In any case Thomas Franck reviewed Bowett’s book “Law of International Institutions” in Harvard Law Review 1964 (vol. 77, p. 1565-1568). The book (9th edition 2009) still is obligatory reading for law students.
Both were involved in cases before the International Court of Justice in The Hague.
Franck represented Chad and Bosnia in a suit brought against Serbia under the Genocide Convention and served as a judge ad hoc (Indonesia/Malaysia) from 2001-2002. Bowett worked for Denmark in two cases, the Jan Mayen Case and another concerning ships passing through the Danish straits (this never came to court).
Both gave lectures at The Hague Academy of International Law in the Peace Palace, which are published in the Recueil des Cours.
Bowett: Contemporary developments in legal techniques in the settlement of disputes. Recueil des cours, Volume 180 (1983-II), pp. 169-235,
Franck: Minimum standards of public policy and order applicable to collective international commodity negotiations, Recueil des cours, Volume 160 (1978-II), pp. 395-436
Franck : Fairness in the international legal and institutional system : general course on public international law, Recueil des Cours, Volume 240 (1993-III) , pp. p.9-498.
For further reading: