Thursday, July 30, 2009

The European Court of Human Rights ‘Irish abortion ban case’

The European Court of Human Rights has agreed to hear the challenge by three women in Ireland to the Irish government’s ban on abortion in a full hearing before its grand chamber of 17 judges. The three Irish women, represented by the Irish Family Planning Association , claim their rights were denied when they were forced to terminate their pregnancies outside Ireland.

The court in Strasbourg adjudicates on human rights issues among the 47 states of the Council of Europe. Any decision of the court is binding on all lower chambers and on all member states and must be complied with, except if it consists of an advisory opinion. The court’s decision to hold a hearing before the grand chamber rather than a smaller chamber of seven judges is regarded by legal experts as a sign of the significance of the issues at stake. This abortion case has a particular gravity because it is the first direct challenge to Irish abortion law by a group of women.

Roger Kiska, legal counsel for the pro-life legal group Alliance Defense Fund , told the independent news agency that this abortion case could set an official policy on the issue for Europe, “No one should be allowed to decide that an innocent life is worthless. Ireland’s constitutional amendment defending innocent life is under attack, and now the stakes have just gotten higher. With the case moving to the Grand Chamber, the ramifications of the decision that is eventually reached in the case are massive. The case is not only pivotal to Europe; it is pivotal to America as well. With ever-greater frequency, American courts have considered what other countries are doing when deciding their own cases. This case could be the Roe v. Wade of Europe, so its importance should not be underestimated.”

The abortion case focuses on whether the women's human rights were infringed because they were unable to terminate their pregnancies in Ireland. The women claim the restrictive nature of Irish law on abortion jeopardized their health and well being. The Irish law created delays and hardships for each woman, resulting in each of them having a later abortion, creating greater risk to their health. The women claim that abortion restrictions interfere with the most intimate aspects of their private and family lives and thus a violation with the European Convention on Human Rights, which provides a right to respect for one's "private and family life." In addition, the women also claim the abortion laws impeded the ability of some of them to obtain necessary follow-up medical care upon their return to Ireland and there would be also a lack of any effective remedy at home. Taking the case to the Irish courts would have been costly, futile and could have forced them to relinquish their anonymity. The women's complaints are based on four alleged violations of articles in the European Convention on Human Rights.
Firstly, the women argue that their human rights are being violated because Ireland's abortion ban violates their right to privacy in all family, home and personal interests, and their entitlement to no public interference from any public authority in exercising this right (article 8).
Secondly, the ban violates their right to be free from inhumane and degrading treatment (article 3) because women seeking abortions are stigmatized and suffer increased feelings of guilt, as well as difficulty securing follow-up care.
Thirdly, the ban breaches their right to life (article 2) because the Irish government has not provided any clear legislation about when abortion may be legally carried out under the exception reserved for saving the mother's life.
And finally, the Irish abortion law discriminates on the basis of sex and financial status (article 14). Thus, the plaintiffs argue that forced travel and childbirth, endangerment of pregnant women's lives and discrimination based on sex and financial status violate their rights.

Ireland (both Northern Ireland and the Republic) has an exceptionally restrictive law on abortion, which allows abortion only when the life of the woman is in danger. In practice, however, abortion is unavailable in Ireland in almost all circumstances due to ambiguity about when a physician may legally perform a life-saving operation. The law also fails to make any provision for a woman who become pregnant as a result of rape or incest, experiencing severe fetal abnormality or at risk of permanent bodily harm such as blindness, diabetes, kidney or heart disease. Official figures show that over 7,000 women travel each year to England for abortions from Ireland. This figure is based upon the number of women providing Irish addresses (from the Republic and Northern Ireland) and vastly undercounts the actual number of women travelling, some of whom may give false addresses in England or travel to other countries like Belgium and the Netherlands.

In April 2009, the Irish government filed its legal papers. The main plank of the government’s defence rests on its contention that domestic legal remedies in Ireland have not been exhausted by the plaintiffs. It also robustly challenges suggestions made by the plaintiffs that there is a lack of post-abortion care or counselling in Ireland. As a result, government attorneys say they should not have brought the case to the court, which covers the 42 members of the Council of Europe. The Irish government also insists the European Convention on Human Rights, on which the court operates, does not confer a right to abortion and the member states of the Council have never voted for the convention to authorize such a right.

The Court will hold the hearing in the case on 9 December 2009.
The case will be watched closely by observers. In 2007 the same court gave a ruling in a Polish abortion case which resulted in Poland being instructed to guarantee access to legal abortions.

Books and articles in Peace Palace Library catalogue about abortion, the combination abortion and Ireland, the combination european court of human rights and abortion

External links:
An interesting article about Irish Abortion Cases by Rick Lawson
More about
abortion law in general
Latest update on the Dutch abortion boat

Wednesday, July 22, 2009

Abyei Arbitration Award

On Wednesday 22 July, the Arbitral Tribunal at the Permanent Court of Arbitration in The Hague rendered its final Award [PDF] in the case between the Government of Sudan and the Sudan People’s Liberation Movement (SPLM) concerning the delimitation of the boundaries of the Abyei Area. The arbitration is based on an Arbitration Agreement between the Parties that was deposited with the Permanent Court of Arbitration (PCA) on 11 July 2008.

Under the Arbitration Agreement [PDF], the five member Tribunal had to determine the following issues (Article 2):
“a. Whether or not the ABC [Abyei Boundary Commission] Experts had, on the basis of the agreement of the Parties as per the CPA [Comprehensive Peace Agreement], exceeded their mandate which is ' to define (i.e. delimit) and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905' as stated in the Abyei Protocol, and reiterated in the Abyei Appendix and the ABC Terms of Reference and Rules of Procedure.
b. If the Tribunal determines, pursuant to Sub-article (a) herein, that the ABC Experts did not exceed their mandate, it shall make a declaration to that effect and issue an award for the full and immediate implementation of the ABC Report.
c. If the Tribunal determines, pursuant to Sub-article (a) herein, that the ABC Experts exceeded their mandate, it shall make a declaration to that effect, and shall proceed to define (i.e. delimit) on map the boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905, based on the submissions of the Parties.”

The Tribunal partly rejected the ABC Experts' delimitation. The Tribunal found that with regard to the decisions on the northern "shared rights" area and the eastern and western boundary lines of the Abyei Area, the ABC Experts exceeded their mandate for failure to provide sufficient reasoning. As a result these boundaries should be redrawn. In accordance with Article 2(c) of the Arbitration Agreement the Tribunal subsequently re-defined the relevant boundaries "on map" [PDF] thereby reducing the size of the Abyei Area. The Tribunal's decision implies that the oil fields are not part of the Abyei Area and control over it is left with northern Sudan. One member of the Tribunal, Judge Awn Shawkat Al-Khasawneh of the International Court of Justice, appended a dissenting opinion [PDF].

Abyei's residents are to decide along with the South whether to secede from the North or not in a referendum in 2011. The Abyei region, on the border between north and south Sudan has been a major conflict area in over 20 years of civil war. The status of the region which contains one of Sudan's two largest oil fields proved one of the most contentious issues in the negotiation of the 2005 Comprehensive Peace Agreement between the Sudanese government and the SPLM.

The precise borders of the Abyei Area were initially to be determined by the Abyei Borders Commission (ABC). The ABC Experts presented their report in July 2005 but it was rejected by the Sudanese government, claiming that the experts exceeded their mandate.

After violent clashes between northern soldiers and SPLM fighters in May 2008 in the disputed area, resulting in extensive destruction and the displacement of an estimated 50,000 civilians, both parties agreed to refer the report of the ABC Experts to an arbitral tribunal in The Hague. Recently UN peacekeepers increased their presence in the region amid fears that a controversial decision by the Tribunal could again lead to violence.

Both parties have announced that they would abide by the award of the Tribunal.

Thursday, July 9, 2009

GMO Moratorium : The Way Forward for Europe (or the Battle for What Is on Your Plate)

For over a decade the cultivation of crops of genetically modified organisms (GMOs) has been a highly controversial issue in Europe. GMOs can be defined as organisms in which the genetic material (DNA) has been altered in a way that does not occur naturally by mating or natural recombination. The issue is so controversial because modern biotechnology uses genetic engineering as a technique to isolate genes from one organism and after manipulation inject them into another related or non-related organism. One of the world's leading producers of genetic engineered seeds is Monsanto, notorious for its aggressive litigation, intimidation and political lobbying practices.

Recently the question of allowing cultivation of genetically modified crops in Europe hit the news lines again. To name a few news stories: a
meeting of EU biotech experts on the introduction of two new varieties of GM-maize ended in deadlock; EU environment ministers calling for a review of EU GMO approval laws and better, long-term safety assessments; attempts by the European Commission to lift bans in Member States using the safeguard clause of Directive 2001/18/EC were blocked by EU environment ministers; a rapid increase in GMO-free regions in Europe; a 5th Conference of GM-free regions which took place in Lucerne, Switzerland.

By contrast with the United States, the European Union (EU) has taken a far more cautious and strict approach to GMO crop cultivation, in the main, because public opinion, backed by many non-governmental organizations (NGOs), is not favourable on biotechnology. There is widespread doubt about the usefulness and benefits; an unwillingness to consume GM foods and concern for the potential risks for food safety and environment. In this respect the Monsanto Canada Inc. v. Schmeiser and Golden Rice cases show that this concern is not completely unfounded. In the wake of the BSE (mad cow) crisis there is also a distrust of scientific research, which in turn is not helped by disagreement among scientists. Other issues are biopiracy and the ethics of patenting living materials.

In order to ensure that biotechnological GMO developments are completely safe the European Union has established a legal framework comprising various acts:

- Directive 90/219/EC regulating contained (in a confined environment) use of GMOs.
- Directive 2001/18/EC (amended by Regulation (EC) 1830/200) regulating the introduction of GMOs into the environment for experimental purposes (mainly part B thereof) and the placing on the market of products containing or consisting of GMOs (mainly part C thereof)
- Regulation (EC) 1829/2003 regulating the placing on the market of GMOs intended for food or feed and products of food or feed containing, consisting of, or produced from GMOs.
- Regulation (EC) 1946/2003 regulating transboundary movements of GMOs between Member States and exports of GMOs to third countries.
- Regulation (EC) 1830/2003 regulating labeling and traceability requirements of GMOs and food products derived from GMOs which are introduced on the market.

In December 2008, the EU Council of Environment Ministers unanimously agreed that the present legislation on GMOs required a thorough revision with respect to long-term risk assessment, and should take into account socio-economic aspects. There was also agreement that the present procedure of imposing the cultivation of GMOs on regions and nations is untenable.

On 30 June 2009 the European Food Safety Authority (EFSA), published a report on a renewal of a cultivation license of MON810, which is a genetically modified insect resistant maize developed by Monsanto [
Summary of scientific opinion]. MON810 is the only genetically modified crop plant species commercially grown in Europe and is used for animal feed. Although EFSA is not able to determine the long-term impact of GM crops, it deemed MON810 just as safe as its conventional counterpart with respect to potential effects on human and animal health. If granted the European Commission, which supports use of the maize, will once again collide with Member States who oppose the use. Increasing numbers of Member States oppose the use - Germany is the latest to join the ranks of Austria, France, Greece, Hungary, Luxembourg, Poland and Romania, who are embracing organic agriculture and introduced legislation banning the cultivation of MON810. Monsanto has since filed a lawsuit against the German government to have the ban suspended, but the case was rejected, because, as, according to the court, a preliminary assessment showed that the plant raises a potential danger. The law does not require a scientific finding that shows a danger for the environment beyond doubt. It is enough that new or additional information indicates that humans or animals may be hurt. The ruling is preliminary and the judges will further examine the case before issuing a final verdict.

The battle for the introduction of GMOs into the EU is starting to reach a critical point with the vast majority of the population of the Member States and NGOs wanting to be free from exposure to GMOs in their food and environment and a pro-GM European Commission headed by Jose Manuel Barroso trying to enforce the issue in favour of the Biotech industry. Robert Urquhart Collins expresses this in his article 'GM Crops : The European Context and Legal Precedents from Canada' [third paragraph] as "a development of a process that has been dubbed 'post democracy'; that is, rule by an unelected elite that places the interests of economically significant lobby-groups above those of the electorate that it is supposed to serve".
Instead of keeping it simple for both the European consumer and the farmer by opting for a GMO moratorium and living with the possible international trade retaliation consequences, the European Commission's pro-GM actions will burden them with numerous contentious issus ranging from gene transfer, organic crop contaminations, unauthorized GMO cultivation, liability questions between farmers or between farmers and biotech companies, risks for food safety, human health, animal welfare and the environment, unpredictable or reduced yields, etc. One thing is almost certain, sooner or later it will ensure that the days of GMO-free farming and freedom of choice are numbered. As Simonetta Sommaruga (Member of the Swiss Council of States) quite rightly puts it: "Agriculture should fit the market, the needs of the consumer, sustainability means good for the environment, and animal rights."

Useful links:
- Robert Urquhart Collins : GM Crops : The European Context and Legal Precedents from Canada
- European commission : Communication on the use of the Precautionary Principle

- European Commission : Report from the Commission to the Council and the European Parliament on the Coexistence of Genetically Modified Crops with Conventional and Organic Farming. COM(2009) 153 final. [Annex] ; [Summary]
GM Science Exposed : Hazards Ignored, Fraud, Regulatory Sham, Violation of Farmers' Rights
. A comprehensive dossier containing more than 160 fully referenced articles from the Science in Society archives presented to the European Parliament 12 June 2007.

- Liability and Compensation Schemes for Damage Resulting from the Presence of Genetically Modified Organisms in Non-GM Crops / ed. by Bernard A. Koch. [S.l.] : Research Unit for European Tort Law of the Austrian Academy of Sciences [etc.], 2007
- Yolanda Ziaka :
The "Imparative of Responsibility" According to Hans Jonas

Peace Palace Library Catalogue References:
- Elena Acuti :
EU Food Safety Policy and Public Debate In: The Search for a European Identity : Values, Policies and Legitimacy of the European Union / ed. by Furio Cerutti and Sonia Lucarelli. Abingdon [etc.] : Routledge, 2008.

- Kathryn Garforth and Paige Ainslie : When Worlds Collide : Biotechnology Meets Organic Farming in Hoffman v Monsanto. Journal of Environmental Law, 18(2006, No.3), p.459-477
- Alison Peck : The New Imperialism : Toward an Advocacy Strategy for GMO Accountability. The Georgetown International Environmental Law Review, 21(2008, No. 1), p.37-72
- Mark A. Pollack and Gregory C. Shaffer :
When cooperation fails : the international law and politics of genetically modified foods. Oxford : Oxford University Press, 2009
- Elsa Tsioumani :
Genetically Modified Organisms in the EU : Public Attitudes and Regulatory Developments. RECIEL, 13(2004, No.3), p.279-288

Wednesday, July 1, 2009

Military coup in Honduras: Zelaya going for president again? No (update)

The Organization of American States (OAS) suspended Honduras on Saturday after the Supreme Court of Honduras has rejected to reinstate President Manuel Zelaya.

The plane was kept from landing at the main Honduras airport Sunday because the runway was blocked by groups of soldiers with military vehicles, some of them lined up against a crowd of thousands outside. His Venezuelan pilots circled around the airport and decided not to risk a crash.

Honduran coup leaders had three days to restore deposed President Manuel Zelaya to power, the Organization of American States (OAS) said Wednesday, before Honduras risks being suspended from the group.

Honduras' interim leader, Roberto Micheletti, warned that the only way his predecessor will return to office is through a foreign invasion. He said in an interview with The Associated Press late Tuesday that "no one can make me resign," defying the United Nations, the Organization of American States, the Obama administration and other leaders that have condemned the military coup.

Sunday 28th June soldiers stormed Zelaya's residence and flew him into exile, after he insisted on trying to hold a referendum asking Hondurans if they wanted to reform the constitution. The Supreme Court, Congress and the military all deemed his planned ballot illegal. One of several clauses that cannot be legally altered in the Honduran constitution limits presidents to a single, 4-year term, and Congress claims Zelaya, whose term ends in January, modified the ballot question at the last minute to help him eventually try to seek re-election.

An analysis of the U.S. position reveals that president Obama condemned the coup in Honduras by turning to that most reliable standby: democracy. "We stand on the side of democracy, sovereignty and self-determination." Obama will work within existing groups, particularly the Organization of American States that links the countries of the Western Hemisphere, and not try to dictate a solo U.S. response.

On Tuesday the United Nations General Assembly unanimously condemned the military coup and demanded Zelaya's immediate return to power. Zelaya, who was in the assembly chamber for the vote, thanked the diplomats, calling the vote "historic."

In light of the Organisation of American States (OAS) 72-hour deadline to Honduras to restore Zelaya to the presidency Zelaya said: "We will wait 72 hours in order to continue with this process [to return to Honduras]. My return to Honduras is scheduled for the weekend," without specifying an exact day. He had said a day earlier that he planned to return to Honduras on Thursday.

Books and articles in Peace Palace Library catalogue about military coups

External links:

More reactions in letters The Independent (Opinion)

Blogposts about military coups in Honduras