The Three Dimensions of Judicial Precedent in the WTO System

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State Bar of Michigan

Michigan International LawyerMichigan International Lawyer

In This Issue

MIL Editorial Staff hosted by Wayne State University Law School

Professor Gregory Fox, Faculty EditorShahar Ben-Josef, Senior EditorCarly Colombo, Student EditorCorey Neil, Student Editor

Disclaimer: The opinions expressed herein are solely those of the authors and do not necessarily reflect those of the International Law Section or the Editors.

Dear Members,

International Law Section Volume 26 No. III, Fall 2014

I am pleased and honored to serve as the Chair of the Inter-national Law Section of the State Bar of Michigan for 2014-2015. Now in its 26th year and with more than 500 members, the Interna-tional Law Section strives to provide its members with educational programming on international law topics, to create a forum for social networking and member fellowship, and to promote the practice of international law in and from Michigan.

I would like to thank our outgoing Chair, A. Reed Newland, for his service to the Section as Chair over the course of the past year and more generally as an officer since 2010-2011. Reed’s tenure as Chair marked a milestone in the Section’s history, namely the Section’s 25th anniversary celebration and Annual Meeting at the Uni-versity of Michigan Law School and the University of Michigan Art Museum. Held in cooperation with the Law School’s International Transactions Clinic, which was celebrating its 5th anniversary, the 2013 Annual Meeting was a resounding success. The same is true for 2013-2014 generally. I can only hope that the Section will be in as good a condition when I turn it over to my successor in 2015.

The Section held its 2014 Annual Meeting and program on September 11, 2014 at the Detroit Opera House in Detroit, Michigan. Section members in attendance also elected Daphne A. Short, Chairperson-Elect; Lara F. Phillip, Secretary; and Debra Auerbach Clephane, Treasurer. In addition, attendees at the meeting elected Aysha Kasham to the Council for a term ending in 2016; Robert L. Rothman, James Rayis and Douglas Duchek for terms ending in 2017; and effective Octo-ber 1, 2014, Linda Armstrong for a term ending in 2015. Continuing Council members are Tim Attalla (2015), Neil Woelke (2015), Troy Harris (2016) and Tim Kaufmann (2016). Pursuant to the Section’s Bylaws, the Chair has appointed, with the approval of the Executive Committee, Blair Daniels as an ex officio (non-voting) member of the Council for 2014-2015 representing Wayne State University Law School. The Section is looking for additional student members of the Council from other Michigan law schools. The Section would also benefit from the appointment of a new Diversity/Inclusion Coordinator to replace Aaron Ogletree, who departed Michigan for the United Kingdom in 2014.

We also appointed ILS Committee Chairs for the following committees in 2014-2015: Richard Goetz and Timothy Kaufman will lead Emerging Nations; Linda Armstrong will lead Employment and Immigration; Andrew Moore will lead Human Rights; Neil Woelke will lead International Trade; Troy Harris will lead

David B. Guenther

Dear Members ....................................... 1

An Evaluation of the EU and International Law: Responses to the Right of Secession in Crimea .................. 4By Sakina Kabir B. & Obinna James Edeh

Non-Attorney Human Rights Defenders .9By Andrew F. Moore

Continuing the Quest for Justice after the Philippine Supreme Court’s Decision on the Japanese Military Sex Slaves ....... 13By J.R. Robert G. Real

The Three Dimensions of Judicial Precedent in the WTO System ............. 17By Francesco Montanaro

Calendar of Events ............................... 22

Section Member Profile: Bushra A. Malik .................................. 23Treasurer's Report ................................ 24

Minutes of the Council of the International Law Section of the State Bar of Michigan ................................... 25

Michigan Internat ional Lawyer

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Michigan International Lawyer

Publication Deadline Dates

Fall IssueArticles due August 15

Winter IssueArticles due January 15

Summer IssueArticles due April 1

The Michigan International Lawyer, which is published three times per year by the International Law Section of the State Bar of Michigan, is Michigan’s lead-ing international law journal. Our mission is to enhance and contribute to the pub-lic’s knowledge of world law and trade by publishing articles on contemporary in-ternational law topics and issues of gen-eral interest.

The Michigan International Lawyer invites unsolicited manuscripts in all ar-eas of international interest. An author is encouraged to submit a brief bio and a photograph for publication. An article, including footnotes, should contain be-tween 1000 and 3000 words.

Articles can be submitted for consid-eration in hard copy or electronic format. Manuscripts and photographs cannot be returned unless accompanied by a $5 check or money order made payable to Wayne State University Law School for shipping and handling.

The Michigan International Lawyer will consider articles by law-school stu-dents and may publish student articles as part of a regular column. A student should submit the article either through a law-school faculty member or with a law-school faculty member’s recom-mendation.

Submissions should be forwarded to:Professor Fox, Faculty EditorMichigan International LawyerWayne State University Law School471 W. PalmerDetroit, Michigan 48202Telephone: (313) 577-0110E-Mail: [email protected]

Michigan International LawyerSubmission Guidelines

International Dispute Resolution; and Gregory Fox will lead Mentor-Mentee. I look forward to working with each and every Committee Chair in the coming year.

We continue to be supported by Professor Gregory Fox and law students at Wayne State University who publish the Michigan International Lawyer. In particular, I want to thank Shahar Ben-Josef for her efforts.

I would like to extend a special note of appreciation to Peggy Costello, the Section’s Commissioner Liaison, who will be stepping down from that position in the coming year. Many thanks to Peggy for her years of service.

I would also like to thank Marilyn Bartley for helping organize and handle the many logistics related to our Annual Meeting.

The 2014 Annual Meeting program entitled, Regulating the International Data Cloud: New Proposals and Initiatives, focused on renewed international efforts to regu-late cross-border information flows and data privacy in the wake of leaks of classified information by former NSA consultant Edward Snowden. The meeting’s first speaker on the “Anatomy of the International Data Cloud” was Mazin Yousif, Ph.D., CTO and VP of Architecture of the Royal Dutch Shell Global Account at T-Systems Inter-national and Editor-in-Chief of IEEE Cloud Computing at IEEE. Dr. Yousif outlined the cloud computing paradigm, how it differed from previous models, and the implica-tions of cloud computing infrastructure and contractual relationships for international data regulation and the jurisdiction of different regulatory regimes. A panel of speakers on the topic, “Navigating the International Privacy Rules” Today and Tomorrow,” was then moderated by Robert L. Rothman, Principal of Privacy Associates International and former General Counsel of General Motors International, General Motors Europe and Delphi Automotive Systems. The panel consisted of Deborah N. Gertsen, Lead Corporate Privacy Counsel, Ford Motor Company; Jill Phillips, Chief Privacy Officer, General Motors; and Mark Werling, Senior Counsel for Commercial Affairs, Chrysler Corporation. The panel explained current international data privacy rules and some of the practical difficulties and approaches in complying with them. Panel members also discussed how those challenges may be increased in the immediate future, with a focus on proposed new European Union rules (including extraterritorial applicability and potentially very significant fines) because of their global influence. At the close of the panel, members were treated to a special musical rendition by Jill Phillips, known in her voice and guitar capacity as “Jill Detroit,” of the proposed new EU regulations and their looming implementation by EU authorities Mrs. Reding and Mr. Albrecht.

For 2014-2015 more generally, to achieve our objectives as a Section, the SBM ILS has established three main goals, which are largely a continuation of our 2013-2014 and earlier goals: (1) Provide educational and interesting Council meeting programs for members; (2) Increase membership and diversity of membership; and (3) Increase engagement and activity of Council members and committees. To achieve these goals, we have outlined a list of tactics that support each goal. These tactics include (i) with respect to Goal 1, limiting business meetings to 30 minutes; inviting speakers with diverse expertise to speak on a variety of topics; emphasizing the relevance of SBM ILS/international law issues to most practice areas; increasing SBM ILS members’ so-cial interaction time; and using Skype or webinar technology to have members attend remotely; (ii) with respect to Goal 2, appointing a new Diversity/Inclusion Coordina-tor; asking each member to recruit one new member to the Section; holding joint meetings with other SBM Sections; inviting other SBM Sections to attend SBM ILS meetings; expanding collaboration with Michigan law schools; facilitating further law student/young lawyer attendance and involvement; continuing implementation of the Mentor-Mentee program; and increasing discussions on the SBM ILS LinkedIn site

The Michigan International Lawyer is published three times per year by the International Law Section, State Bar of Michigan, 306 Townsend Street, Lansing, Michigan 48933-2083.

Copyright 2014 International Law Section, State Bar of Michigan. © All rights Reserved.

Volume 26 No. III, Fall 2014

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and reviewing other social media; and (iii) with respect to Goal 3, scheduling monthly Council and Committee Chair confer-ence calls; asking Committee Chairs to facilitate one function and one Michigan International Lawyer article during year; and ensuring that each Council Member is engaged and attending Council meetings and actively participating or facilitating at least one SBM ILS goal.

We look forward to you joining us at our next quarterly Council meeting and program on November 14, 2014, which will feature a number of speakers on the topic, “Doing Busi-ness in India,” to be held at Dykema’s Detroit office. Our oth-er ILS Council meetings are scheduled for January 21, 2015; March 18, 2015; and May 20, 2015. Further information on the location, program topics and presenters will be provided via the ILS listserv and the ILS LinkedIn website.

All members of the Section are invited and encouraged to attend the Section’s quarterly Council meetings as well as the programs that typically follow. If you have suggestions for pro-grams or activities that you think should be considered by the Council, please do not hesitate to contact one of the Section’s officers or any Council member. We welcome all suggestions.

The primary means by which the Section’s officers com-municate and distribute notices of meetings and programs is through the Section’s email listserv. If you have not received email notices of the Section’s recent meetings and programs, please go to the Section’s page on the State Bar of Michigan website or contact the State Bar of Michigan to sign up for the listserv. If your email address has changed, please sign up again with your current email address.

Please enjoy this issue of Michigan International Lawyer. I look forward to seeing you at the next Section event. If I can be of assistance to you or if you would like to talk with me about the issues and activities of the SBM International Law Section, please feel free to call me at (734) 761-9000 or email me at [email protected].

Sincerely,

David B. GuentherChair, 2014-2015International Law Section


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Sakina Kabir B. Obinna James Edeh

An Evaluation of the EU and International Law: Responses to the Right of Secession in Crimea

By Sakina Kabir B. and Obinna James Edeh1

Introduction

On March 25, 2014, the British Broadcasting Corpora-tion (BBC) aired a news commentary on the tension in the Crimea. The commentary chronicled the impasse, the Russian interest and the rights of the Crimean citizens to self-deter-mination.2 A few days later, the Global Research Institute of Canada published an article criticizing the hypocrisy of the United States and European Union on the secession of Crimea to Russia.3 Unlike the BBC, the Global Research Institute launched scathing criticisms on what the author termed the ‘Western Hypocrisy in the Crimea crisis’.4 The writer chided the United States and her allies for unduly interfering in what should have been an internal affair or at best a bilateral issue between Russia and Ukraine.5 It is in light of these arguments, especially with the competing rights over the Crimea, that this essay evaluates the EU’s response to the exercise of the right to self-determination in the Crimea. Specifically, the essay will proceed with a historical exposé of the region of Crimea, eval-uate the position of international law on self determination, explore the philosophical basis for the recognition of this right and finally examine the propriety of the intervention of the EU in the current dispute.

Background

Historically, Crimea was built as a regional military base, an outpost for Russia and a unique place for the location of submarine vessels, warships and the air force bases.6 The struggle for Sevastopol (the principal city in the Crimea pen-insula) dates back to the 19th century. In the mid 19th century, Britain and France launched a mission to seize the Crimea peninsula from the Russians with a view to contain Russia’s further expansion within the peninsula.7 Though Sevastopol resisted until it could no longer withstand the pressures of war, the European powers were able to constrain Russian ex-pansion within the Black sea. In 1954, Soviet leader Nikita Khrushchev transferred Crimea from Russia to the Ukrainian Soviet Republic. However, it was unclear whether the transfer affected the peninsula’s largest city of Sevastopol, which en-joyed a special status in the postwar Soviet Union. Sevastopol was further annexed in 1978 when the Ukrainian constitution declared it a Ukrainian territory.8 In 1993, the Supreme Soviet of Russia claimed Sevastopol was part of Russia, resulting in a territorial dispute with Ukraine9.

According to Malya-renko and Galbreath, the existing balance of forces in the Black Sea region between the North Atlan-tic Treaty Organization (NATO) and Russia em-phasizes the geostrategic significance of Crimea and the political and in-deed, economic price that Russia is willing to pay for control over the territory.10 As the Black sea is a major international naval route, NATO and Russia continually seek greater pow-ers within the region and it is believed that the ‘annexation’ of Crimea would serve the purpose of the controlling power.11 It has been alleged by the West ie EU and the US that Russia’s continued interest in Crimea stems from a desire to fortify her military prowess in a bid to maintain the bipolar world order.12

The Right to Self Determination in International Law

Secession occurs when a territorially concentrated group breaks away from the state, in which it is currently domiciled to form or join another state,13. Presently, seventeen European countries owe their existence to secession, among which are Switzerland, Netherlands, Greece and Belgium.14 Secession has often been compared to divorce: In the case of divorce, if the partners cannot agree on the terms of separation, a judge will decide how claims and debts have to be settled. As the partners negotiate in the shadow of the court, they have a strong incentive to settle on their own. Similarly, when a re-gion secedes from the rest of the country, there are also claims and debts that have to be sorted out. Thus it is not surprising that in many legal views, for example in the view of Lee C. Bu-chheit,15 secessions ought to be supervised by an international arbiter, such as the United Nations or the European Union.. The principle of self-determination as originally construed by the League of Nations was not espoused as a legal rule but purely as a political concept.16 However, the atrocities of the Second World War and the attendant agitations for greater rights for minorities prompted a more critical consideration of the idea. Resolution 1514 (xv) of the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 stressed that all peoples have the right to self-determi-


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nation, and by virtue of such right, they can freely determine their political status and freely pursue their socio-cultural development.17 Various other international documents rec-ognize and elaborate on the right of self-determination, in-cluding Article 1 of the International Covenant on Civil and Political Rights (ICCPR)18. Indeed, the1972 United Nations Declaration on the Principles of International Law concerning International Relations clearly stated that the subjugation of a people to colonial authority is a violation of international law; the Montevideo Convention is also dedicated to the protec-tion of this important group right.19

In Portugal v. Australia,20 the International Court of Jus-tice held that the right of a people to self-determination is a fundamental principle of international law, which must not be unduly restrained.21 The Canadian Supreme Court has also held that the principle of self-determination has acquired a status beyond a mere ‘convention’ and is now considered a general principle of international law.22 To this end, it is sub-mitted that Crimea validly exercised her rights under inter-national law and did not offend any extant international law provision.

However, one issue surrounding secession (as seen in Crimea) is the appropriate international response to the exer-cise of this right, as secession has international consequences and may call for international action.23 In many cases, move-ments to secede are spurred on by the success or the failure of others. The Scottish referendum was followed closely by the Catalans who, had the Scots voted “Yes” for independence, would inevitably have seen more international support and legitimacy for their campaign. Moreover, as secessionist at-tempts are usually combated with deadly force, human rights violations are common in the conflicts and the refugees fleeing from them spill across international borders, often requiring global response.24

Theoretical Basis of the Right to Self Determination

It must be stated from the outset that International Law recognizes the ‘right of all people to self determination’, in-cluding the right to choose independent statehood25. However, international legal practice has interpreted this right narrowly, restricting it to the most unambiguous cases of decoloniza-tion, the consensus among scholars being that international law does not recognize a right to secede in other circumstances even though it does not unequivocally prohibit it.26 There are several principles enunciated as theories that stipulate when it is proper for a group to secede from another. However, all theorists agree that secession is to be perceived as either a Re-medial right or a Primary right.27

Remedial right theory believes that every group has a gen-eral right to secede if it has suffered certain injustices for which secession is the only remedy.28 On the other hand, the pri-mary right theorists assert every group in a state has a general

right to secede even in the absence of any sort of injustice.29 The position of the remedial theorists is that secession should be seen as some form of revolution akin to the jurisprudential postulations of John Locke that ‘‘the people have the right to secede when the government becomes oppressive especially in the absence of a peaceful means of respite.”30 Adopting the Locke-Hobbesian theory, these scholars assert that once a government ceases to perform her duties to her people, the citizens are free to either revolt or form a new government.31 Catala32 writes that the remedial theorists adopted the West-phalian conception of sovereignty in which sovereignty is based on a state’s just treatment of her citizens, giving life to the expression that ‘sovereignty belongs to the people.’33 The direct implication of this statement is that the political protec-tion of the minority is the condition for territorial occupa-tion; otherwise the minority can choose to form a new state.34 It is the position of this essay that such an elongation of the Hobbesian theory is highly controversial, vague and simplistic. The Hobbesian theory does not encourage citizens to threaten secession at every grievance; however, individuals or groups could change the government either through peaceful means, or violent means if necessary. Moreover, violent change would not necessarily amount to secession.

According to Harry Beran,35 any group is justified to se-cede if it has a sizeable and substantial majority in its area of the state and wishes to secede; it must also have the where-withal to form a new state. However, the exercise of this right must not in any way injure the parent state, either militar-ily, economically or culturally.36 This last condition does not lend itself to clear interpretation, as there will undoubtedly be costs resulting from any secession and it begs the question what objective basis there is to appraise the “cultural” impact of secession at any given time. Therefore, when a minority asks for independence, the majority is likely to be opposed unless the minority has been a financial burden to the majority as the majority would lose its power to overrule the minority and extract resources from its economy.37 Thus, placing the

Ukraine map after Crimean crisis 2014


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right to secede on the anchor of economic convenience of the parent state would mean that such state could claim loss of cheap labour force from the act the secession. Further, since political power rests primarily with the national government and parliament, it is the politicians at the national level who are most opposed to secession. It is the position of this essay that economic, military, and cultural losses are arbitrary and as such cannot be objectively evaluated. For minority entities to effectively exercise their right to secede, certain conditions must be fulfilled in general; there must be a majority ‘yes’ vote during a well publicized and reputable plebiscite, an undertak-ing by the new state to protect her minority and a commit-ment to equal distribution of resources.38 However, in cases of actual or impending threat of genocide where drastic action must be taken to separate the two and protect the minority, these requirements may be dispensed with thus adopting the remedial theory of Buchanan.39

Applying all these theories to the question of Crimea, it is clear that the region fulfilled all the necessary obligations before secession. Bearing in mind the territorial integrity of Ukraine, this essay notes that the historical transfers of Crimea to Russia and the socio-political connection of Crimea to Rus-sia further diminishes the right of Ukraine over Crimea.

The EU Foreign Policy on the Right to Self Determination

The history of the European Union Common Foreign and Security Policy (CFSP) is traceable to the period after the Second World War specifically to the Treaty of Collective De-fence signed in Brussels in 1948.40 The intent of the framers was to establish a cooperation on foreign affairs, which was then known as the European Political Cooperation (EPC).41 The EPC was founded on the principle of unanimity of de-cision, implying that all decisions taken under this platform must be agreed upon by all the member states of the union be-fore it can take effect. According to Daniel Thym, the guiding principles of the CFSP were consensus, confidentiality, and consultations.42

The Maastricht treaty of 1993 took further steps to en-hance the operations of the CFSP. It created a three-pillar structure for the European Union and anchored the common foreign and security policy as a second pillar.43 This treaty not-ed the objective of the CFSP to include inter alia, the assertion of a common European Union identity, the safeguard of its independence, security and integrity of the European Com-munity, and the promotion of international relations.44 Some of the factors that informed the need to create an EU Com-mon and Foreign Security Policy are: regional conflicts and the need to combat terror, globalization and the increasing interdependence among member states, and the economic success of the union within and outside of Europe.45 The proximity of borders,46 the cultural and political affiliations

of member states, and the negative history of Nazi invasion also informed the need for a stronger Europe with a common voice on foreign and security matters. The Lisbon Treaty of 2009 removed further obstacles to achieving these ends when it collapsed the pillar structure, integrating the CFSP into a more supranational platform and granting the EU full legal personality.47

It is in this context that it is easy to see the difficulty, and indeed, the hostility that the EU had regarding the Scottish referendum. As the legal framework of EU law does not it-self address possible consequences of secession and succession of parts of current EU Member States,48 the EU’s political response is all the more relevant. This response (most nota-bly through José-Manuel Barroso, President of the European Commission) has consistently been that secession of part of the territory of an EU Member State leads to an automatic exit by that territory from the EU; consequently a new application for EU Membership would have to be set in motion if the new entity desires to ‘become’ a Member State of the EU.49

These discouraging signs reflect a legal problem that re-sults from a lacuna in the EU overall design defying its sup-posed autonomy and coherence. Nevertheless, there are those who stress that in view of the highly dense nature of European integration, the solution must be sought primarily in EU law itself, complementing or even superimposing itself on what-ever rules can be distilled from public international law. In that spirit, Scottish Prime Minister Alex Salmond claims: “As many experts have confirmed, Scotland is part of the territory independence.”50

To the extent that independentist claims within EU mem-ber states can be expected to be resolved through legal means, a general question is how public international law and Euro-pean law intersect and interact in such scenarios. Currently, Scotland represents a more interesting case than Catalonia, as the UK, unlike Spain, has resolved not to side-step the ques-tion of who is the self that can determine. The Scottish situ-ation is interesting because it obviates the international law problem. In a sense, the question to be determined is whether the British norm should become the European norm.

Applying this to the impasse in the Crimea and the re-sponse of Europe thereto, we see a contrast: whereas a differ-ence in opinion within the EU has always been maintained for the issue of secession and independence in the cases of Catalo-nia and Scotland, Crimea is in the minority of such cases that has demanded a joint community response. In prior cases (e.g. Kosovo), it was very difficult, to achieve unanimity of position needed to forge a common response. For instance in the Koso-vo conflict, it took the intervention of NATO championed mainly by the United States and supported by the Security Council to get Europe to agree to a joint action.51 A transposi-tion of this to the issue of Crimea would show that the situa-tion in Kosovo and Crimea are not completely identical. What


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is most important to note in all of this is that Crimea is not part of the European Union and cannot be forced to conform to standards that it does not recognize.

Conclusion

If international law and precedents are to be followed, Crimea, which held a referendum before it joined Russia, ful-filled international requirements and as such was competent to exercise her right to belong to Russia. Also important is the fact that originally, Crimea has been a part of Russia ceded to Ukraine by Soviet Russia. On a socio-cultural level, most citizens of Crimea are of Russian origin and trace their history back to Moscow. This essay argues that as there is no defini-tive and immediate threat to the security of Europe, the CFSP should not be invoked to deny Crimea the right to self deter-mination guaranteed by international law; yet this is without prejudice to the right of Ukraine to her territorial integrity free from any overt or covert invasion by Russia. However as noted several times in this essay, the integrity of Ukraine does not override the right of self determination of the Crimeans especially in the light of their common historical and socio-political ties with Russia.

About the Authors

Sakina is the Founding Chair of the LSE Africa Summit and is pursuing an MSc in International Political Economy. She is a young professional and has spent her time working at the World Bank, The Economist, and Goldman Sachs. She has also writ-ten for numerous publications such as the Global Policy Journal, The Analyst magazine and is a regular panelist on The Guard-ian’s development professional’s debates

Obinna has a certificate in Public International Law from the Hague Academy of International Law, Hague The Nether-lands. He is currently completing an LLM in International Criminal Law and Security at the University Of Northampton, England. He has deep interests in International Criminal Law and International Human Rights particularly on the impact of counter terrorism practice on the protection of human rights.

Endnotes

1 Sakina Kabir B: (MSC in view, International Political Economy, London School of Economics). Obinna James Edeh, (LLM in View, International Criminal Law and Security, University of Northampton, England)

2 Partick Jackson, ‘Crimean Crisis: A guide to Russia’s vision of Crimea. ’(2014) http://www.bbc.co.uk/news/world-europe-26695808 (March 2014)

3 Kourish Ziabari, ‘The Crimean Crisis and the US hypocrisy, war of words to justify aggression.’ (2014) Centre for Global Research on Globalization.

4 Ibid.5 Ibid.

6 Tetyana Malyarenko and David J. Galbreath, ‘Crimea: Competing Self-Determination Movements and the Politics at the Centre.’ (2013) Euro-Asia Studies, Page 912

7 Sergii Glebov: ‘Black Sea Security as a regional concern for the Black Sea States and global powers’. (2009) South East European and Black Sea Studies. Vol 9:3

8 ibid9 Andrew Higgins ‘Steeped in Its Bloody History, Again

Embracing Resistance’. (2014) http://www.nytimes.com/2014/03/07/world/europe/crimea-russia.html. Date Accessed October 2014

10 Tetyana Malyarenko and David J. Galbreath, ‘Crimea: Competing Self-Determination Movements and the Politics at the Centre’. (2013) Euro-Asia Studies, at 915

11 Dimitrios Triaantaphyllou ‘The ‘Security Paradoxes’ of the Black Sea Region’. (2009) International Centre for Black Sea Studies, Page 225

12 ‘Asymmetric Wars: Russia, Ukraine and Crimea’. (2014) The Economist Magazine. Page 14

13 Amadine Catala: ‘Remedial Theories of Secession and Territorial Justification’ (2013) Journal of Social Philosophy Vol 44(1) 4

14 The Political Economy of Secession in, and Withdrawal from, the European Union (2014), Roland Vaubel http://www.vwl.uni-mannheim.de/vaubel/pdf-Dateien/The_Political_Economy_EU.pdf

15 Secession: The Legitimacy of Self-Determination, Lee C. Buchheit, Yale University Press (1978)

16 Malcolm Shaw: International Law (5TH Edition, CUP 2005) Page 226

17 Ibid Page 26918 http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

Accessed May 17, 2014 19 See Generally the 1933 Montevideo Convention on the Rights

and Duties of Signed on 26th December 1933. http://www.palestine-studies.org/files/montevideo.pdf Accessed May 17, 2014

20 ICJ Reports 199521 Page 105-622 1998, 161 DLR (4th) 30523 Allen Buchanan: ‘Theories of Secession’ (2006) Journal of

Philosophy and Public Affairs, Vol 26 (1). Pg 3124 Ibid at p3325 Article 1 of the International Covenant on Civil and Political

Rights26 Hannum, H: Autonomy, sovereignty, and self-determination: The

accommodation of conflicting right (University of Pennsylvania Press 2011).

27 Allen Buchanan: ‘Theories of Secession’ (2006) Journal of Philosophy and Public Affairs, Vol 26 (1).

28 Allen Buchanan, Justice, Legitimacy and Self determination: Moral Foundations of International Law (OUP 2004) 219

29 Ibid 30 See John Locke, Second Treatise of Civil Government (Hackett

Publishing Co, 1980, Pg 100-12431 M.D.A Freedman eds: LLoyds Introduction to Jurisprudence ( 8th

Edn, Sweet and Maxwell 2008) Pg145-46

http://www.bbc.co.uk/news/world-europe-26695808

http://www.bbc.co.uk/news/world-europe-26695808

http://www.nytimes.com/2014/03/07/world/europe/crimea-russia.html

http://www.nytimes.com/2014/03/07/world/europe/crimea-russia.html

http://www.vwl.uni-mannheim.de/vaubel/pdf-Dateien/The_Political_Economy_EU.pdf



http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

http://www.palestine-studies.org/files/montevideo.pdf

http://www.palestine-studies.org/files/montevideo.pdf


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32 Amadine Catala. ‘Remedial Theories of secession and Territorial Justification’ (2013) Journal of Social Philosophy, Vol. 44(1)

33 Linda Bishai: Forgetting Ourselves: Secession and the (im)possibility of Territorial Identity. (Lexington Books , 2004) 74-75

34 Christopher Wellman, A Liberal Theory of International Justice (OUP 2009)

35 Harry Berean: The Consent Theory of Political Obligation. (London: Croom Helm, 1987 )421

36 Ibid at 42137 The Political Economy of Secession in, and Withdrawal from,

the European Union (2014), Roland Vaubel http://www.vwl.uni-mannheim.de/vaubel/pdf-Dateien/The_Political_Economy_EU.pdf

38 Glaser, D. ‘The Right to Secession: An Anti-Secessionist Defence (2013) Journal of Political Studies

39 Ibid40 Nelli Babayan. ‘Now who Answers the Phone in Europe?

Cooperation within the CFSP After the Enlargement of the Lisbon Treaty’. (2010) Caucasian Review of International Affair, Vol 4 (4)

41 Florika Fink-Hooijer: ‘The Common Foreign and Security Policy and the European Union;. (1994); European Journal of International Law 173-191

42 Daniel Thym. ‘The Intergovernmental Constitution of the EU’s Foreign, Security and Defence Executive’. (2001) European Constitutional Law Review, Vol 7, 453.

43 Steve Peers ‘EU Justice and Home Affairs Law’ (Oxford University Press 2011)

44 Ibid P1045 Nelli Babayan. ‘Now who Answers the Phone in Europe?

Cooperation within the CFSP After the Enlargement of the Lisbon Treaty’. (2010) Caucasian Review of International Affair, Vol 4 (4)

46 ‘The European Union Explained: Borders and Security’. (2013). http://www.europa.eu/pol/index_en.htm Accessed March 2014

47 Steve Peers : EU Justice and Home Affairs Law (Oxford University Press 2011)48

48 “Secession and EU Treaty Obligations”, Paul Dermine in Secession Within The Union: Intersection Points of International and European Law, May 2014

49 Ibid50 Newsnet 201251 James Hughes Russia and the Secession of Kosovo: Power Norms

and the Failure of Multilateralism. (2013) Europe-Asia Studies Vol. 65:5.

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http://www.europa.eu/pol/index_en.htm


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By the end of this year it is likely that more than 60,000 unaccompanied minors will have journeyed to our southern border, predominantly from Honduras, El Salvador and Gua-temala. 1 One topic of public debate has been how quickly to move these children through the process of determining whether they should receive protection from the poverty and gang violence engulfing their home communities. A stark fact that should be noted in this debate is that none of these children are entitled to representation by counsel in their im-migration proceedings. U.S. immigration law is a strange outlier in the realm of Constitutional protections. Despite the significant stakes involved in many immigration cases in which a person potentially faces permanent exile or possibly torture and death, there is no right to an attorney. While these children have the privilege of being represented if they can find someone willing to act on their behalf, the law does not require the government to provide an attorney. In fact, it states the opposite; any representation must be at no expense to the government.2 Even if the child is unaccompanied and no adults are present in the United States to take custody of the child, the law only requires that to the greatest extent prac-ticable, the government should try to find pro bono counsel for the child.3

Despite the legal restriction on using public funds to pay for their defense, the federal government has contracted with non-profit service providers for legal representation for some of these children 4 and many selfless volunteers have stepped in.5 However, the already strained free legal service providers across the nation have been overwhelmed by this surge.6 This is not a new problem. A study of 100,000 juvenile cases in immigration court stretching back to 2005 reveals that about half of all minors in deportation proceedings were represented. 7 This is consistent with the representation rates for adults appearing in front of an immigration judge, 8 but children do present a particularly vulnerable population. Evidence strong-ly supports that legal representation makes all the difference in the world for these children. In 100,000 cases studied, when a child was represented the immigration judge allowed the child to stay in the United States 47% of the time, but when left unrepresented, the child was ordered removed in nine out of ten cases.9

Cleary, the need is critical and has been for some time before this recent influx. A group that fills a small part of critical need, often overlooked, is a group of non-attorney,

human rights defenders, called accredited representatives. Accredited representatives are one category of non-attorneys permit-ted under federal law to provide counsel in immigration matters. According to fed-eral regulations, law students as well as law graduates being supervised by an attorney, officials from the immigrant’s home coun-try, attorneys outside the United States, and reputable individuals “of good moral character” may also rep-resent immigrants in front of the federal government seeking either an immigration status or appearing before an immigra-tion judge. 10 However, outside of licensed attorneys, it is ac-credited representatives who most frequently provide services, particularly to the poor. 11

Accreditation occurs through the U.S. Department of Jus-tice’s Board of Immigration Appeals. To be accredited an in-dividual must work for a qualified agency, which the code of federal regulations identifies as “a non-profit religious, chari-table, social service or similar organization established in the United States.”12 The agency must be recognized by the Board and must demonstrate that it charges only nominal fees and has access to adequate knowledge, information, and experience in immigration law.13 The accredited representa-tive cannot apply for accreditation on his or her own but only as a representative of a qualified agency. In addition, the individual must present his or her experience and knowl-edge of immigration law and show good moral character.14 Lastly, he or she cannot charge for his or her services. This restriction on collecting fees applies to all other non-attorney representatives listed above as well.15

As the above restrictions indicate, the objective of accred-iting non-attorneys at non-profit agencies is to provide a first line of response for immigrants who definitely need legal as-sistance but cannot afford the cost of a regular lawyer, as high-lighted by the recent wave of immigrant children. But given the challenges of finding funding for such organizations, the opportunities for staffing such positions is very limited. Ac-cording to the roster maintained by the Board of Immigration Appeals, there are currently a total of 1,486 accredited repre-sentatives,16 who work for a total of 843 qualified agencies in the United States.17 When considering that the population of poor immigrants in need of legal services is far larger than just the recent influx of children, it is no wonder the representation

Non-Attorney Human Rights Defenders By Andrew F. Moore, University of Detroit Mercy School of Law

Andrew F. Moore


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rates have hovered around 50%.In Michigan, we exceed the national average in terms

of providing representation. In the study referenced above concerning juveniles in deportation proceedings from the be-ginning of 2005 until June of 2014, the immigration courts in Michigan handled a total of 866 deportation hearings in which the immigrant was a juvenile. Representation was pro-vided in 65% of those cases (566 cases).18 Nonprofit agen-cies in Michigan, working together, have tried to improve this record. Earlier this summer two non-profit legal service pro-viders, the Michigan Immigrant Rights Center and Michigan United, provided a broad training program at cost to the staffs of nonprofit agencies looking to increase the numbers of ac-credited representatives at those agencies.19

With all of this said, one can still say that the lack of legal services to such a vulnerable population is deplorable. Not only do these children face the ordinary hurdles of language and a very complicated foreign legal system, they also have the limitations that come with youth (e.g. lacking a general understanding of processes, not knowing who to trust, look-ing for guidance from authority figures). They may also be traumatized by their experiences and not know how to explain what has happened to them. When they confront a border patrol officer, an immigration judge and especially an experi-enced trial attorney from the government whose job is to seek their deportation, it seems the deck is stacked against having a fair outcome. The lack of representation, especially when considering that some of these unaccompanied minors will not have an opportunity to appear in front of an immigration judge,20 raises concerns not only under our domestic law, but also with the United States’ obligations under international human rights treaties and norms.

Specifically, the United States has obligations to accurately assess whether these children, or any immigrant, should re-ceive protection under the 1951 Refugee Convention.21 The United States has bound itself to the obligation not to return someone to a country from which he or she fled because of persecution or a well-founded fear of persecution.22 This right is further captured in the American Declaration of the Rights and Duties of Man, the basic instrument of the Inter-Amer-ican human rights protection system in which the United States participates.23 Currently, U.S. law accommodates this obligation in the case of unaccompanied minors by requiring an assessment of whether the child has a credible fear of perse-cution and if so then a full deportation hearing is provided.24 If a child is deemed a refugee then he or she receives asylum in the United States which eventually makes him or her eligible to become a lawful permanent resident and a citizen.25

In addition to the protection of refugees, the United States has ratified the Convention against Torture (CAT) and has similarly ensconced its provisions in U.S. law as a specific form of protection.26 The child must show that it is more likely than

not that he or she will be tortured or subjected to cruel inhu-mane or degrading treatment or punishment. As with asylum, the grant of protection prevents the child from being returned to the home country although the relief granted does not lead to lawful permanent residence.27 This protection is usually provided if someone is ineligible for asylum, and, like refugee protection, is rooted in the United States’ international obliga-tions. 28 Beyond these two conventions, international human rights norms recognize the vulnerability of children and the special needs they have for family unity and support. One can find such recognition in the foundational document of the modern human rights regime, the Universal Declaration of Human Rights.29 From the Universal Declaration, there flows specific obligations in international treaties the United States has ratified, such as the International Covenant on Civil and Political Rights,30 and in treaties the United States has yet to ratify, such as the International Covenant on Economic, So-cial and Cultural Rights,31 and the Convention on the Rights of the Child.32

U.S. law recognizes these vulnerabilities and special needs through particular provisions of immigration law, such as a category called Special Immigrant Juvenile Status (SIJS). Un-der SIJS if a domestic juvenile court declares an immigrant child to be dependent on the court, that reunification with one or both parents is not viable because of abuse, neglect or abandonment, and it would not be in the child’s best inter-ests to deport him or her back to the home country, then the child has access to a visa that can lead to lawful permanent residence.33 There are also special categories of visas aimed at protecting the victims of trafficking and other serious crimes to which children are particular susceptible. The T visa is available to anyone who is the victim of a severe form of traf-ficking and has complied with reasonable requests from law enforcement.34 The U visa protects the victims of crime who have suffered substantial physical or mental abuse, possesses information that was, is or will likely be helpful to law en-forcement investigating the criminal activity.35

While these immigration laws are not tied to particular human rights obligations, they are a reflection of the sense shared at the domestic and international level that children need special protection. An essential part of this special pro-tection is ensuring due process in whatever claim a child is making to remain in the United States, be it asylum, CAT, SIJS, T and U visa, or other status. A necessary component of due process is adequate assistance in navigating this complex body of law.

In this light, the role of the accredited representatives takes on even greater meaning. Their representation of chil-dren seeking these forms of protection become essential to the United States fulfilling its obligations under international law and being consistent with human rights norms. We should expect better of our system given that it is predicated on these


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human rights norms. Perhaps the least we can do is recognize the role of accredited representatives and the support those or-ganizations like Michigan Immigrant Rights Center that help train them.

About the Author

Andrew Moore is an Associate Professor of Law at the Uni-versity of Detroit Mercy School of Law, where he has been on faculty since 1998 and served as the Associate Dean for Academic Affairs from 2011-2013. He received his J.D. from Case Western Reserve University School of Law and an LL.M. from Columbia University School of Law. He teaches Torts, Human Rights and Immigration Law as well as seminars on the latter two subjects. He currently is the Chairman of the Human Rights Committee for the International Law Section for the State Bar of Michigan.

Endnotes

1 Lisa Frydman et al., Center for Gender and Refugee Studies Univ. of California Hastings and Kids In Need of Defense, A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System, 2 (2014) (hereinafter A Treacherous Journey). Between the beginning of this year and July 7, Michigan had accepted 92 unaccompanied children. Katherine Miller, Placement of Unaccompanied Children in the U.S., BuzzFeed, (Aug. 8, 2014, at 2:02 p.m.), http://www.buzzfeed.com/katherinemiller/here-are-the-states-where-thousands-of-the-children-that-cro#3eguver

2 8 U.S.C. 1362.3 8 U.S.C. 1232. In July, the American Civil Liberties Union,

together with American Immigration Council, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP filed a nationwide class-action lawsuit on behalf of unrepresented minors asserting the federal government’s failure to provide them with legal representation in deportation hearings violated our immigration laws and the Constitution. J.E.F.M. v. Holder, Case 2:14-cv-01026 (U.S.D.C. WA, filed July 9, 2014).

4 Kirk Semple, Youth Facing Deportation to Be Given Legal Counsel, N.Y. Times, June 6, 2014 at A11.

5 For example the American Immigration Lawyers’ Association (AILA) organized a group of volunteers to visit one of the emergency housing shelters set up by the U.S .government in Artesia, New Mexico, on the grounds of the Federal Law Enforcement Training Center. See AILA Leadership Blog, Laura Lichter, Day One in Artesia: Notes from the Front Lines (August 7, 2014), http://ailaleadershipblog.org/2014/07/30/day-one-in-artesia-notes-from-the-front-lines/.

6 Kirk Semple, Advocates in New York Scramble as Child Deportation Cases Are Accelerated, N.Y. Times, August 4, 2014 at A17; Kirk Semple, Surge in Child Migrants Reaches New York, Overwhelming Advocates, N.Y. Times, June 17, 2014 at A19.

7 New Data on Unaccompanied Children in Immigration Court, Transactional Records Access Clearinghouse (July 15, 2014), http://trac.syr.edu/immigration/reports/359/.

(hereinafter TRAC Study). This study omits the numbers of children from Mexico who can be returned without a deportation hearing. 8 U.S.C. 1232(a)(2). See also A Treacherous Journey, supra note 1, at 3.

8 Data from the U.S. Department of Justice shows that 50% of all respondents whose case was heard in immigration court and completed in 2012 were represented. That number improved to 59% in 2013. Executive Office for Immigration Review, FY 2013 Statistics Yearbook, F1 (2013).

9 See TRAC Study, supra note 7. Of course, it should be noted that in some cases a juvenile is unrepresented because there is no relief from deportation. However, having an expert in immigration law review the case is essential to make that determination.

10 8 C.F.R. 292.1(a)11 Careen Shannon, To License or Not to License? A Look at

Differing Approaches to Policing the Activities of Nonlawyer Immigration Service Providers, 33 Cardozo L. Rev. 437, 448 (2013).

12 8 C.F.R. 292.213 Id.14 8 C.F.R. 292.2(d). Accreditation can be full or partial. Full

accreditation means the accredited representative can represent someone before the Department of Homeland Security (DHS), which administers the processes for getting immigration benefits such as sponsoring family member or obtaining citizenship, and also the Department of Justice, Executive Office for Immigration Review, which administers the immigration courts. Partial accreditation means the accredited representative can only appear on behalf of someone before the DHS.

15 See 8 C.F.R. 292.1(a)16 Accredited Representatives Roster, Exec. Office for Immigration

Review, U.S .Dep’t of Justice (August 7, 2014), http://www.justice.gov/eoir/ra/raroster_reps.htm. The great majority of accredited representatives have partial accreditation and appear only in front of DHS. Cf. supra note 14. Currently, few accredited representatives go in front of immigration judges.

17 Recognized Organizations and Accredited Representatives Roster, Exec. Office for Immigration Review, U.S. Dep’t of Justice (August 7, 2014), http://www.justice.gov/eoir/ra/raroster_orgs_reps.htm.

18 TRAC Study, supra note 7.19 Participating organizations included the Chaldean Community

Foundation, Detroit Hispanic Development Corporation, Latino Family Services, the Diocese of Kalamazoo, and the Kalamazoo Hispanic American Council. Email from Susan Reed, Supervising Attorney, Michigan Immigrant Rights Center, to Andrew Moore, Associate Professor of Law, University of Detroit Mercy School of Law, (Wednesday, July 30, 2014 3:36 pm EST)(on file with the author).

20 Under current U.S. law, if an unaccompanied minor enters from a contiguous country like Mexico, then the initial screening and interviewing is done by federal agents at the border. If they determine the child is not a victim of trafficking, does not have a credible fear of persecution and can agree to voluntarily returning to Mexico, then the child can be sent back without further investigation so long as the

http://trac.syr.edu/immigration/reports/359/

http://www.justice.gov/eoir/ra/raroster_reps.htm

http://www.justice.gov/eoir/ra/raroster_reps.htm


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child agrees. 8 U.S.C. 1232(a)(2). This provision is part of the Trafficking Victims Protection and Reauthorization Act of 2008 (TVPRA) which provides additional benefits to children who are the victims of severe trafficking. Some studying this recent wave of immigrant children assert that few children are covered by the TVPRA because their parent s paid for them to be brought to the United States. See Jon Feere, 2008 Trafficking Law Largely Inapplicable to the Current Border Crisis, Center for Immigration Studies (July 2014).

21 Convention Relating to the Status of Refugees, opened for signature, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954).

22 The United States ratified by the 1967 Protocol to the Refugee Convention making its obligations binding. Protocol Relating to the Status of Refugees, opened for signature, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967). The 1980 Refugee Act incorporated the provisions of this treaty into domestic law. Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102 (Mar. 17, 1980). A refugee is defined as “ any person who is outside any country of such person’s nationality, or in the case of a person having no nationality, is outside the any country in which the person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of past persecution or a well-founded fear of persecution on account of race, religion, membership in a particularly social, or political opinion. 8 U.S.C. 1101(a)(42).

23 The American Declaration of the Rights and Duties of Man, Art. XXVII, O.A.S. Res. XXX, O.A.S. Off. Rec. OEA/Ser.L./V/I.4 Rev.9 (adopted by the Ninth Int’l Conference of Am. States, Bogota, Colombia (1948). The current position of the U.S. government is that the American Declaration is not legally binding. However, the Inter-American Court, which is charged with determining the legal obligations of member states to the system, concluded that the Declaration captures legally binding obligations. See Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, Inter-Am. Ct. H.R. (ser. A) No. 10 (1989).

24 8 U.S.C. 1232.25 A person granted asylum may apply to become a lawful

permanent resident (LPR) after one year in asylee status. See; 8 U.S.C. 1158- 1159; 8 C.F.R. 1209.2. Naturalization may occur after five years as an LPR. 8 U.S.C. 1427.

26 Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984 1465 U.N.T.S. 85, (hereinafter CAT) codified at 8 C.F.R. 208.16(c).

27 Under CAT, a person receives withholding of removal or deferral of removal, meaning that person cannot be returned to the country where more likely than not they will be tortured but he or she is not eligible to become a lawful permanent resident. See 8 C.F.R. 208.16(c)-.18.

28 Reasons could include that the person filed the claim too late (asylum claims must be filed within 1 year), the person participated in the persecution of another person, or committed a particularly serious crime and constitutes a danger to the community of the United States. For a full listing of exception, see 8 U.S.C. 1158(a)(2) & (b)(2).

29 Universal Declaration of Human Rights, art. 25(2), G.A. Res. 217(III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948). Article 25(2) recognizes that motherhood and childhood are entitled to special care and assistance.

30 International Covenant on Civil and Political Rights, art. 24, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171. Article 24(1) provides that children have the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State, without discrimination.

31 International Covenant on Economic, Social, and Cultural Rights, art. 10, opened for signature Dec. 16, 1966, 993 U.N.T.S. 3. Article 10(3) states that all parties to the treaty recognize special measures of protection should be taken on behalf of children to protect them from social and economic exploitation.

32 Convention on the Rights of the Child, opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3.

33 8 U.S.C. 1101(a)(27(J) & 1153(b)(4).34 8 USC 1101(a)(15(T). Severe trafficking involves sex trafficking

in which a commercial sex act is induced using force, fraud or coercion or such means are used in harboring, transporting, or obtaining a person for involuntary servitude. After three years in T status, a person can obtain lawful permanent residence. For further information and a critique of the program, see A Treacherous Journey, supra note 1, at 46-53.

35 8 U.S.C. 1101(a)(15(U). This category requires certification from law enforcement about the help provided by the immigrant. Like the T visa, an immigrant must wait three years before applying for lawful permanent residence. For further information and a critique of the program, see A Treacherous Journey, supra note 1, at 46-53.


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Continuing the Quest for Justice after the Philippine Supreme Court’s Decision on the Japanese Military Sex Slaves

By J.R. Robert G. Real

On 12 August 2014, the Supreme Court of the Philip-pines wrote finis1 to the pleas for diplomatic protection of the World War II–era military sex slaves2 known as “comfort women.” According to the court in Vinuya v. Executive Sec-retary, it could not compel the Philippine government to file a case against Japan for an official apology and reparations, since the executive department had exclusive prerogative over foreign relations matters.3

While the issue was limited to whether the Philippine government should have espoused the claims of its nation-als, the court gave an impression that the settlements under the 1951 Treaty of Peace and the 1956 Philippine–Japanese Reparations Agreement had already covered the survivors’ demands. The question thus arises: Did Vinuya issue a de-finitive ruling on the legitimacy of the former military sex slaves’ claims?

This article seeks to analyze the legal implication of the court’s pronouncements in Vinuya. It attempts to categorize the nature of the statements as mere obiter dicta rather than definitive rulings on the ultimate interpretation of the settle-ment of claims under the two treaties. In attempting to con-clude that the decision did not foreclose the claims of the survivors, the article looks into the nature of the suit filed as well as the limitations set by the Philippine Supreme Court in deciding the case. It also considers the context in which the judgment was made in light of the concurring opinions.

Background

The idea of establishing military brothels or “comfort sta-tions” emerged following the hostilities between Japan and China in 1932.4 Due to the very high incidence of rape in China, the Japanese government established a formal system of controlled sexual service.5 The “success” of this system led to the continuation of the practice during the Second World War. To “supply” the comfort stations, countless numbers of women were deceived, coerced, forcibly drafted, or abducted.6 Their primary role was to provide sexual release for the Japa-nese soldiers.7 Some women were forced to service as many as 70 soldiers a day.8 Those who refused were tortured or execut-ed in front of the other women.9 A considerable number of them eventually contracted gynecological infections, venereal diseases, and mental disorders.10 Towards the end of the war, the women were either killed or left to die.11

Those who survived kept quiet due to humiliation or forced silence.12 Their ordeals were thus largely unknown to ev-eryone until 1988, when South Korean women’s organizations started investigat-ing the matter.13 Three Korean women eventually filed a class-action suit in Ja-pan in December 1991. In September 1992, Rosa Henson, a former Filipina military sex slave, spoke out in public about her suffering in the hands of the Japanese Imperial Army.14 She was the first to do so from the Philippines, unfolding what would appear to have been a widespread system of military sexual slavery in Japanese-occupied territories. The system had been established in China, Korea, the Philippines, Indo-nesia, Malaya (now Malaysia and Singapore), Thailand, Burma (now Myanmar), New Guinea (now Papua New Guinea), Hong Kong, Macao, and French Indochina (now Vietnam and Cambodia).15

Japan eventually admitted the involvement of its army in the establishment and management of comfort sta-tions, including the recruitment of “comfort women.”16 The Japanese Government, through then Chief Cabinet Secretary Yohei Kono, extended its “sincere apologies and remorse to all those … who suffered immeasurable pain and incurable physical and psychological wounds as com-fort women.”17 Similarly, former Japanese Prime Ministers sent, on behalf of the Japanese Government, personally signed letters of apology and remorse to the survivors.18

The Survivors’ Case

The Philippine Government has been declining the survi-vors’ requests for assistance in filing a suit against Japan since 1998. According to the government’s executive department, the individual claims of the former military sex slaves were al-ready settled on the state level by the peace treaty and the repa-rations agreement. It then explained that, in any event, the apologies made by Japan’s high-ranking government officials and the atonement money it paid through the Asian Women’s Fund (AWF) were already sufficient to satisfy their claims.

Because of the denial of their requests, the survivors sought judicial intervention to compel the Philippine Govern-ment to espouse their claims in an international legal forum.19

J.R. Robert G. Real


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Through a petition for certiorari, they invoked the Philippine Supreme Court’s power of judicial review.

The Philippine Supreme Court has an expanded power of judicial review. It has the authority not only to determine whether a branch of government has acted beyond the scope of its constitutional powers, but also to check if the latter ex-ercised its discretion with “grave abuse.” 20 This means that the court may scrutinize if a coequal branch of government has exercised its constitutionally assigned sphere of discretion in a manner that is capricious or despotic.

The survivors claimed that the Philippine Government had committed a grave abuse of its discretion in interpreting that the settlements under the peace treaty and the repara-tions agreement covered their claims. They stressed that the Philippines could not have waived their demands, since it had an international law obligation not to facilitate impunity for the commission of international crimes. They argued that the comfort women system constituted a crime against humanity, sexual slavery, and torture.21

The survivors also insisted that the statements of the for-mer Japanese officials did not amount to an official apology, since the meaning of the Japanese word they used—owabi—did not express an acknowledgment of legal responsibility. Citing a Japanese expert’s analysis, the word “denotes a sense of apology slightly more weighty than an ‘excuse me.’” With regard to the alleged atonement money, the survivors stressed that the AWF was sourced from private contributions, not from government funds.

The Court’s Opinion

The court dismissed the case. It reiterated that the execu-tive branch of the Philippine Government had full discretion-ary authority to determine whether to espouse its nationals’ claims against other states. It emphasized that the issue in-volved foreign policy judgments which, under the Philip-pine Constitution, were matters to be decided by the political branches of the government. It then lamented that it only had the “power to urge and exhort the executive department to take up [the survivors’] cause.”22

The court, however, took a sharp turn from its initial self-restraint to a discussion of the substantive claims of the sur-vivors. The court suddenly made statements recognizing the government’s authority to negotiate international settlements that could generally wipe out underlying private claims.23 The court then acknowledged that the fundamental goal of the peace treaty was “to settle the reparations issue once and for all.”24 After alluding to a statement that nations “sometimes disposed of the claims of its citizens without their consent,” the court went on to declare that the peace treaty “compromised individual claims in the collective interest of the free world.”25

Then, as a seeming coup de grâce to the survivors’ claims, the Philippine Supreme Court enunciated that the government’s decision to waive all claims for reparations through the peace treaty was “not for the courts to question.”26

With these statements, the Philippine’s court of last resort appears to have gone beyond the boundaries it had itself set. And—because of its failure to entirely avoid commenting on the alleged complete settlement of claims under the two trea-ties—the court might have jeopardized the substantive claims of the survivors. There is danger that these statements might be considered binding interpretations of the treaties, thereby weakening the survivors’ claims, if not totally foreclosing them. It must be stressed that the former military sex slaves only sought to compel the Philippine government to espouse their claims. They wanted to litigate, with official government support, their demands in an international forum.

Interpreting the pronouncements

Even though the court set express limitations, it might still be difficult to simply brush aside the statements as mere obiter dicta. After all, both parties squarely raised the issue of whether the settlement covered the claims of the military sex slaves. Since the government heavily relied on the peace trea-ty and the reparations agreement in declining the survivors’ requests, the court had to assess the executive department’s interpretation of the agreements. Hence, it seems understand-able that the court should feel the need to discuss whether the practice of renouncing or extinguishing private claims, in return for peace and lump–sum payments, was an established international practice. Interpreting the nature of the interna-tional agreements seemed necessary to resolve the case. There was no clear overreach.

As a result however, the survivors are faced with an un-certain pronouncement. On the one hand, the court showed compassion and hinted that the executive department should espouse the claims of the survivors; on the other, it sent a clear statement that the treaties were meant to settle all claims.

The tendency of misunderstanding Vinuya is further fueled by the court’s seemingly confusing—or confused—statements, which tangled two different issues. After explaining the execu-tive department’s full discretionary power to decide whether or not to espouse the claims of its nationals against a foreign state, the court all of a sudden shifted the discussion. It desultorily focused on the executive department’s full discretionary power to settle all claims of its nationals through a peace treaty,27 as if these two discretionary powers were identical and interchange-able. They are not. The first sphere of discretion refers to the power to exercise diplomatic protection. It involves the deci-sion to espouse the claims of the former military sex slaves and, hence, to test whether the previous settlements could have cov-


15

ered their claims. The second sphere of discretion refers to the power to negotiate and enter into international agreements. It involves the decision to settle Japan’s international obligations and waive all future claims of the Philippines and its nationals.

Still, there is a stronger basis for arguing that the pro-nouncements in Vinuya about the alleged complete settlement of claims are purely nonbinding declarations. In understand-ing Vinuya, the boundary that the court had drawn for itself is a good starting point: “the opinion [is confined] only to the very questions necessary to reach a decision on this mat-ter.” If this declaration is made to reverberate throughout the decision, then all of the court’s pronouncements must be read in view of its limited task of determining whether there was a capricious or despotic exercise of discretion in declining to espouse the claims of the survivors. All binding pronounce-ments should then be limited to the first sphere of discretion. Any statement beyond that is obiter dictum.

In this light, the nuanced approach in the concurring opinion of the Chief Justice becomes more valuable in inter-preting Vinuya. Rather than discussing the correctness of the government’s legal interpretation of the two treaties, she fo-cused on the executive department’s basis for interpreting that there was complete settlement of claims under the two trea-ties. She traced the events that led to the conclusion of the agreements. She pointed out that the Philippines had strongly negotiated for reparations as a matter of justice28 and eventu-ally settled for a meager sum, because of the economic and po-litical realities at the time. With this contextual background, she argued that the executive department could not be found guilty of grave abuse of discretion for believing that the settle-ment covered the claims even of the former military sex slaves.

This did not mean, though, that the Philippine Govern-ment’s interpretation was necessarily correct. Limiting her analysis to the first sphere of discretion, she concluded that the question whether the claims of the survivors were barred by the treaties remained open. This means that the dismissal of the case could not be taken as a definitive ruling on the merits of the survivors’ claims. The former military sex slaves may still bring their cause to another forum and through a different recourse.

Conclusion

The seemingly flip-flopping statements in Vinuya must be seen as indicative of a conscientious struggle within the court itself. The court visibly debated on the possible foreclosure of all future claims in light of the peace treaty and the repara-tions agreement. Nevertheless, after painstaking efforts, the court could only reach a consensus insofar as dismissing the case per se was concerned. Different justices offered different approaches for dismissing the case. One of them expressly ar-gued that the two treaties have already barred the claims of the

former military sex slaves.29 Three justices asserted, however, that the dismissal should be strictly and solely on procedural grounds.30 The lack of a clearer declaration in the majority opinion should thus be treated as the court’s conscious effort to steer clear from addressing the issue of foreclosure of claims. The interpretation of the treaties was left unresolved.

Indeed, amidst all the pronouncements of the Supreme Court, only one statement is unambiguous: the question be-fore it was whether the executive department committed grave abuse of discretion when it declined to espouse the claims of the survivors. The decision must therefore be read in this con-text. The court must be seen to have solely ruled on the gov-ernment’s exercise of discretion in the matter of diplomatic protection, not the legitimacy of the claims itself nor the cov-erage of the treaties involved. The decision should be inter-preted in light of the court’s own self-established limitation.

The Chief Justice was therefore on point; there was no definitive ruling on the substantive claims. After all, though there seems to be merely a thin line between a conclusive find-ing that the government did not gravely abuse its discretion in interpreting the treaties and, an understanding that the gov-ernment was conclusively correct in its interpretation of the treaties, it is nevertheless a line clearly drawn. The quest for justice of the former military sex slaves may continue.

About the Author

J.R. Robert Real is a court attorney at the Supreme Court of the Philippines. He obtained his JD–MBA from the De La Salle University and Far Eastern University dual degree program in the Philippines. He interned for the U.N. Assistance to the Khmer Rouge Trials in 2011 and was a directed studies student at The Hague Academy of International Law in 2014. He currently teaches Public International Law and serves as judge in various international law moot court competitions.

Endnotes

1 Vinuya v. Executive Secretary, G.R. No. 162230 (S.C., Recons., 12 Aug. 2014) (Phil.), available at <http://sc.judiciary.gov.ph/jurisprudence/2014/toc/august.php> (“Vinuya II”).

2 According to the Special Rapporteur on Violence Against Women, the phrase “military sexual slaves” represents a much more accurate and appropriate terminology than the term “comfort women.”

3 Vinuya II, supra note 1, at 10; Vinuya v. Executive Secretary, G.R. No. 162230, 619 S.C.R.A. 533 (S.C., 28 Apr. 2010) (Phil.) (“Vinuya I”).

4 Special Rapporteur on Violence Against Women, its Causes and Consequences, Rep. on the Mission to the Democratic People’s Republic of Korea, the Republic of Korea and Japan on the Issue of Military Sexual Slavery in Wartime, Comm’n. on Human Rights, UN Doc. E/CN.4/1996/53/Add.1, at 5 (4 Jan. 1996)(by Radhika Coomaraswamy); Ustinia Dolgopol


16

& Snehal Paranjape, Int’l. Comm. of Jurists, Comfort women: An Unfinished Ordeal – Report of a Mission 24-25 (1994); Japanese Cabinet Councillors’ Office on External Affairs, Statement on the Issue of Wartime “Comfort Women” (4 Aug. 1993), available at <http://www.mofa.go.jp/policy/postwar/issue9308.html> (also on file with author).

5 Report on the Issue Wartime Military Sexual Slavery, supra, at 7; Japanese Statement on the Issue of Wartime “Comfort Women,” supra.

6 Report on the Issue Wartime Military Sexual Slavery, supra, at 6-8; Dolgopol & Paranjape, supra note 4, at 151-152.

7 Dolgopol & Paranjape, supra note 4, at 15-17, 29; Susan H. Shin, Justice Delayed: Accountability in the “Comfort Women” Case, in Accountability for Atrocities: National and International Responses 413 (Jane E. Stromseth ed. 2003).

8 Report on the Issue Wartime Military Sexual Slavery, supra note 4, at 9; Shin, supra, at 414.

9 Shin, supra, at 421.10 Id.; Dolgopol & Paranjape, supra note 4, at 15-16.11 Report on the Issue Wartime Military Sexual Slavery, supra

note 4, at 7; Dolgopol & Paranjape, supra note 4, at 15; Shin, supra, at 414.

12 Report on the Issue Wartime Military Sexual Slavery, supra note 4, at 5, 10; Shin, supra note 7, at 414.

13 Dolgopol & Paranjape, supra note 4, at 12; Bo Jung Kwon, “I Will Be Forgotten”: Legal Redress for Korean Comfort Women, in Repairing the Past?: International Perspectives on Reparations for Gross Human Rights Abuses 417 (Max du Plessis and Stephen Peté eds. 2007).

14 Dolgopol & Paranjape, supra note 4, at 14; H. Harry L. Roque, Jr. & Diane Desierto, Redress for Survivors of War Crimes: The Filipino Comfort Women’s Continuing Search for Legal Remedies, 19(1) Humanitäres Völkerrecht 241 (2006).

15 Japan’s Statement on the Issue of Wartime “Comfort Women,” supra note 4; Report on the Issue Wartime Military Sexual Slavery, supra note 4, at 6-8; Dolgopol & Paranjape, supra note 4, at 15-17, 30-47, 151-152 (1994).

16 Keiichi Tadaki, Hiroko Akizuki, Makiko Arima, Mariko Kawano & Ikuhiko Hata, Report of the Study Team on the Details Leading to the Drafting of the Kono Statement and Others (Prov. Trans.) 17-18 (20 June 2014), available at <http://www.mofa.go.jp/policy/postwar>.

17 Id. 18 Id. at 25.19 See Vinuya I, supra note 3, at 540-541; Roque & Desierto,

supra note 14, at 245, 248-249.20 Philippine Constitution, Art. VIII, Sec. 1; Chavez v. Judicial

and Bar Council, G.R. No. 202242, 676 SCRA 579 (S.C., 17 Jul. 2012) (Phil.); Francisco v. House of Representatives, 460 Phil. Rep. 830 (S.C., 10 Nov. 2003); Demetria v. Alba, 232 Phil. Rep. 222 (S.C., 27 Feb. 1987).

21 See Vinuya I, supra note 3, at 541-542; Roque & Desierto, supra note 14, at 245-249.

22 See Vinuya I, supra note 3, at 581.23 See Vinuya I, supra note 3, at 562-563.24 Vinuya I, supra note 3, at 565 (citing In Re World War II Era

Japanese Forced Labor Litigation, 114 F. Supp. 2d 939 [N.D. Cal. 2000]).

25 Vinuya I, supra note 3, at 564 (citing Dames & Moore v. Regan, 453 U.S. 654 [1981]).

26 Id., at 560.27 Vinuya I, supra note 3, at 559-560.28 Citing Ohno, supra, at 39-54; and The Philippine President’s

Inaugural Address, 45:12 O.G. 5384 (30 Dec. 1949 )(Phil.).29 Concurring note of Justice Antonio T. Carpio in Vinuya I,

supra note 3, at 581.30 Separate concurring opinion of Justice Antonio B. Nachura in

Vinuya I (Justices Conchita Carpio-Morales and Diosdado M. Peralta joined his opinion), supra note 3, at 581.

Call for PapersThe Michigan Internatinal Lawyer is looking for papers from corporate attorneys or those who work in the corporate arena for the next issue. Please see page 2 for submission guidelines.


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The Three Dimensions of Judicial Precedent in the WTO SystemBy Francesco Montanaro

Francesco Montanaro

Introduction

The dispute settlement mechanism is one of the most important novelties brought by the WTO trading system in comparison to the old General Agreement on Tariffs and Trade (“GATT”) of 1947. The understanding of rules and proce-dures governing the settlement of disputes (“DSU”) intro-duced a fully-fledged adjudication system. The WTO adjudi-cation system is characterized by three salient features.

First, it provides for the compulsory and exclusive juris-diction of the panels and of the AB. Second, it confers on the Dispute Settlement Body (DSB) the power to adopt binding panels and AB reports. Third, it establishes a two-tiered sys-tem, where the Appellate Body (“AB”) has the power to review panel reports.

The characteristics of the adjudication system can be re-garded as a part of the institutionalization of the world trad-ing system.

Against this backdrop, this paper investigates the role of judicial decisions in the WTO adjudication system. The first part defines the different doctrines of precedent as defined un-der common law and civil law systems. With this dichotomy in mind, it examines how judicial precedents produce ultra partes effects in the other subsystems of International law. Secondly the paper, examines the value of judicial precedent within the WTO system. It analyzes, on the one hand, its “horizontal ef-fect,” namely to what extent panels and AB are boundby previ-ous panels and AB reports on similar legal issues. On the other hand, it examines the “vertical effect” of judicial decisions, that is to say whether AB reports produce some kind of binding effect on panels adjudging similar issues. Subsequently, the paper goes on to examine whether panels and AB decisions produce some kind of effect beyond the WTO system. In con-clusion, in order to better understand the role of judicial prec-edent in the WTO system, it draws an analogy between the judicial precedent and soft law.

Effects of judicial decisions on following cases: between stare decisis doctrine and

jurisprudence constanteBefore analysing the effects of judicial decisions in the

WTO system, it is worth making a digression to understand how, in domestic legal systems, judicial decisions produce ef-fects which go beyond the dispute for which they are issued. As a general rule, judicial decisions are normally binding on

the parties to a particular case. However, they can produce effects, albeit in different ways, on subsequent cases. What differs is how previous judicial decisions affect the following practice of adjudicatory bodies. Two diverging doctrines characterize the main legal systems belonging to the West-ern Legal Tradition.

On the one hand, common law systems apply the judicial precedent or stare decisis doctrine, whereby adjudicators are bound by the rationale of previous decisions1. That being said, it is nonetheless possible to depart from previ-ous decisions under the stare decisis doctrine when “the reasons of the prior decisions have ceased to exist or the prior decision was clearly erroneous or manifestly wrong.2”

In civil law systems, on the other hand, judges are only bound by the law, not by previous decisions. Nevertheless, ju-dicial decisions produce indirect ultra partes effects through the “jurisprudence constante” doctrine, according to which the Courts hand down decisions by inspiring themselves to a bunch of previous and consistent judgements3. In other words, when confronted to new cases, the courts only rely on previous judgements insofar as they persuasively affirm a consolidated principle of law.

Bearing this in mind, it is now worth turning our atten-tion to the ultra partes effects of the decisions of the main in-ternational courts and tribunals.

Ultra partes effects of International courts and tribunal decisions

The issue of precedent in international law has been de-bated at length. For the sake of brevity, it is not possible within this article, to thoroughly investigate the ultra partes effects of the decisions of all international courts and tribunals. For this reason, we will choose to focus primarily on the International Court of Justice (“ICJ”), on the European Court of Justice (“ECJ”) and on the international investment tribunals. The ICJ represents a viable point of departure of such an overview. It is apparent from the ICJ Statute that stare decisis doctrine is not applicable to ICJ judgements. Article 59 of the ICJ stipu-lates that, “the decision of the Court has no binding force except between the parties and in respect of that particular case.” More-over, according to ICJ Statute Article 38, judicial decisions are not sources of law, but only subsidiary instruments which can


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be used to determine the rules of law. Indeed, the ICJ has often referred to its previous judgements in order to ensure coherence and consistency of its interpretative findings.4

Furthermore, it is worth considering the ultra partes ef-fects of the ECJ’s decisions.5 Stare decisis doctrine has no place in EU law,6 on the contrary, the EU legal order espoused the jurisprudence constante doctrine.7

Unsurprisingly, stare decisis doctrine is not applicable to the awards of international investment tribunals.8 However, arbitral case law has traditionally affirmed that previous deci-sions must be taken into consideration insofar as they decided similar or identical legal issues.9

By the same token, we can affirm that all the other in-ternational judicial bodies - such as the European Court of Human Rights, the International Criminal Court, the Inter-national Tribunal for the law of the Sea - have rejected the stare decisis doctrine.10

Therefore, their decisions produce ultra partes effects re-sembling the jurisprudence constante doctrine. In this regard, it has been noted that generally judicial decisions in interna-tional law serve as a “repository of legal experience,11” namely a source from which adjudicators can draw ‘good law’.

Judicial precedent under WTO law

The effects and the function of precedent under WTO are inherently linked to the function of the dispute settlement mechanism as a whole. According to Article 3(2) of the DSU, the dispute settlement mechanism protects rights and obliga-tions under the covered agreements and clarifies the provisions thereof in order to ensure the overall stability and predictabil-ity of the system.

Yet, the dispute settlement mechanism is not the only WTO body entrusted with an interpretative function. In fact, Article IX:2 of the WTO Agreement stipulates that the Minis-terial Conference and the General Council have the power to adopt authoritative interpretations of WTO law with general effects. Such a power is not affected by judicial interpretations of AB and panels (Article 3.9 of DSU). With respect to the different nature of the above interpretative powers, the AB in US-Foreign Sales Corporation held that:

“[T]he distinction between an authoritative interpretation and an interpretation made in dispute settlement proceed-ings is made clear in the WTO Agreement…In terms of Article 3.2 of the DSU, the rulings and recommendations of the DSB serve only ‘to clarify the existing provisions of those agreements’ and ‘cannot add to or diminish’ the rights and obligations provided in the covered agreements.”12

In a subsequent case the AB made clear that no other WTO body has such a power.13 As a consequence, the for-mer issues decisions that are only binding on the parties to a dispute, whereas the latter issues authoritative interpretations

having general binding effects, which can be also regarded as a legislative or quasi-legislative acts. Admittedly, there is no prac-tice under Article IX:2 of the WTO Agreement.14 In any event, it should be noted that even an authoritative interpretation would likely be subjected to panels and AB’s interpretation.15

In light of the above, it can be easily concluded that there is no stare decisis doctrine in the WTO system.16 Therefore, contrary to what a commentator argued,17 the reports of the panels and of the AB do not “make law.” Rather, their ruling-seffects only on the parties to the dispute. In that same vein, it has been argued that the absence of stare decisis doctrine in WTO law has strong historical roots. Notably, the WTO system rejected such a rule because of the influence of (i) of In-ternational Court of Justice; (ii) of civil law legal systems; (iii) of commercial arbitral practice and (iv) of the international law scholarship.18

Be that as it may, it should be nonetheless assessed wheth-er judicial decisions produce some sort of de facto effects, which go beyond the parties to a dispute.19 When analysing such effects, the two-tiered structure of the dispute settlement mechanism must be taken into account. Thus, it is possible to draw a distinction between “horizontal” ultra partes effects and “vertical” ultra partes effects.

“Horizontal” ultra partes effects

AB and panels’ reports may respectively generate effects on following AB and panels’ decisions. Put another way, they may affect following decisions of adjudicatory bodies at the same level. As to panel decisions, the AB made clear that they are not binding in other cases, even when they concern the same subject-matter.20 Yet, being an integral part of WTO and GATT acquis, they must be taken into consideration by subsequent panels.21 In other words, they provide guidance to subsequent panels unless the parties distinguish their case from the precedent.22 By the same token, the AB held that the same principle could be extended to the AB reports.23 As part of the WTO/GATT acquis, panels and AB’s reports give rise to WTO members’ legitimate expectations that panels and AB will decide following cases according to findings of the bodies at their same level. In this regard, an author rightly maintains that such expectations are not individual. Rather, they are col-lective expectations of the WTO membership as a whole.24 By protecting such expectations, the WTO system pursues dis-tributive justice as well as the principle of equality of members which permeates the entire system.25

“Vertical” ultra partes effects

Judicial precedent in a two-tiered judicial system inevita-bly also produces “vertical” effects, namely the effects of AB reports on subsequent panels.

It should be noted that, due to the hierarchical structure of the dispute settlement mechanism, the AB has the power


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to review panel reports.26 Since the AB has generally carried out a de novo review, it frequently reversed the findings of the panels.27 By contrast, panels are expected to take into account the AB’s reasoning in earlier cases, especially when they con-cern the same legal issues.28 The AB further clarified this issue stating that subsequent panels may not overlook the AB’s legal interpretations contained in previous reports.29

However, panels can disregard previous AB interpretative findings when they find cogent reasons to do so.30 With re-spect to the notion of “cogent reasons,” a panel has recently illustrated that:

“To our minds, “cogent” reasons, i.e. reasons that could in appropriate cases justify a panel in adopting a different interpretation, would encompass, inter alia: (i) a multilateral interpretation of a provision of the covered agreements under Article IX:2 of the WTO Agreement that departs from a prior Appellate Body interpretation; (ii) a demonstration that a prior Appel-late Body interpretation proved to be unworkable in a particular set of circumstances falling within the scope of the relevant obligation at issue; (iii) a demonstration that the Appellate Body’s prior interpretation leads to a conflict with another provision of a covered agreement that was not raised before the Appellate Body; or (iv) a demonstration that the Appellate Body’s interpretation was based on a factually incorrect premise.”31

Assessment

In conclusion, it is apparent from the above that the pan-els and AB reports produce ultra partes effects that can be loosely subsumed under the jurisprudence constante doctrine.32 This contention also seems to be corroborated by a systematic interpretation of WTO Law.

Firstly, according to DSU Article 3(2), the dispute settle-ment mechanism must carry out its function in accordance with the customary rules of interpretation of public international law contained in Articles 31, 32 and 33 of the Vienna Convention on the law of Treaties (“VCLT”). No reference to previous AB or Panel reports is made by such rules.33 In addition, pursuant to Article 19(2), the panels and the AB cannot add or diminish the rights or obligations of the WTO Members.

Secondly, such a doctrine strikes a fair balance between the stability and predictability pursued by DSU Article 3(2) and the flexibility of WTO rules which are designed to adapt themselves to the changes of the real world.34

Thirdly, the duty of panels and AB to provide “basic reasons” for their decisions is certainly a reflection of the “persuasive” value of precedent under jurisprudence constante doctrine.35

Finally, this view is also in line with the nternational law’s general trend. Moreover, since all international courts and tri-bunals reject the stare decisis doctrine, it seems reasonable to

presume that the decisions of the WTO’s dispute settlement mechanism do not create legally binding precedent either.36

Beyond WTO: the third dimension of judicial precedent

The effect of decisions by the dispute settlement mecha-nism is not limited to the WTO system. Although WTO legal texts are silent in this respect, practice of international tribu-nals and courts show that panel and AB reports are often cited by other international judicial bodies. Whether to cite WTO case law or not it is a discretional decision of a given adjudica-tory body. Needless to say, there is no obligation to take into consideration the rulings of panels and AB pertinent to the dispute under judgement.

As demonstrated by a recent study, this approach has been espoused in particular by investment tribunals which increas-ingly make reference to WTO panels and AB decisions in their legal reasoning.37 For instance, in Continental, the tribunal de-fined the concept of “necessity” under Article XI of the US-Argentina BIT by referring to the case law of GATT Article XX. In fact, it found more appropriate to adopt this notion than that of “necessity” under customary international law, be-cause US-Argentina BIT Article XI is formulated according to the “necessity” clause in the U.S. Friendship, Navigation and Commerce treaty, which is in turn tainted by Article XX of GATT 1947.38

More generally, adjudicatory bodies may draw from WTO case law either a “substantive” or a “procedural” rules.39 This practice resulted in a mutual influence - “cross-fertilization”- between the two systems,40 which might counterbalance the increasing and enduring fragmentation of international law.41 However, it might also paradoxically lead to the opposite ef-fect. When borrowing the interpretation of WTO panels or AB, investment tribunals may misinterpret or manipulate the original interpretation.42 In fact, international investment tri-bunals cited WTO case law to reach and justify contrasting conclusions.43 Admittedly, diverging interpretative findings are not necessarily a symptom of incoherence. On the con-trary, even dispositions, which at first glance may appear simi-lar or identical, may be construed differently by virtue of the different contexts in which they are applied.44

Therefore, citing WTO case law is a risky exercise, espe-cially when arbitrators lack a thorough knowledge of both fields. As opposed to the “vertical” and “horizontal” effects of WTO judicial precedent, the external effect might even run counter predictability of legal interpretations in the legal sys-tems which borrow from the WTO case law.

Judicial precedent as a sui generis soft law

Although WTO rejects the stare decisis doctrine, the ef-fects of panels and AB decisions, at least in their “horizontal”


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and “vertical” dimensions, in practice go beyond the parties to a dispute. In so doing, the WTO dispute settlement mecha-nism gradually establishes a framework which must be taken into consideration when deciding new cases. In other words, it draws patterns that orient adjudicators in future disputes and WTO Members when enacting their future legislation.

Thus, it seems that judicial precedents in WTO operate like “soft law”; in other words, they serve as “rules of con-duct which, in principle, have no legally binding force but which nevertheless may have practical effects.”45 Judicial precedents en-capsulate precise rules which produce effects - albeit only a hortatory and “soft.”46 Of course, panels and AB may decide whether to be “persuaded” by those decisions to justify their choices. When departing from previous decisions, they will hand down another hortatory rule to replace the previous one as well as to provide guidance for following cases. Vertical ul-tra partes effects may be regarded as a sort of “soft law plus,” as they have stronger hortatory effects by virtue of the higher ranking authority which issued them.

The importance of these hortatory and “soft” rules is wit-nessed by the tendency of WTO members to take part in the making of them by filing disputes.47 As the crucial interests at stake may make the negotiation of amendments to the Agree-ments very difficult, the States may prefer to modify indirectly the content of the rules. Interestingly enough, it has been not-ed that a majority of complaints are usually filed by the most powerful WTO members, which are also most likely to benefit from precedents.48

Conclusion

This article has illustrated that Panels and Appellate Body reports ultra partes effects have three different dimensions.

In their “vertical” and “horizontal” dimensions, panels and AB reports ensure a certain degree of stability of the WTO system. On the contrary, this is at least questionable for their “external” effects, namely for the effects projected by WTO case law into other systems of international law. As noted above, this tendency not only creates a convergence between WTO and other subsystems of International law,49 but also a risk of misinterpretation of concepts and rules belonging to the WTO acquis.

With this in mind, it can be concluded that, at least in their “horizontal” and “vertical” dimensions, DSB adopted reports operate like “soft” interpretative guidelines. Not only do they influence WTO Members’ future legislation but they also affect the interpretation of “hard law” thereby leading to a sort of “amending evolution” of WTO law This becomes especially relevant when formal changes are difficult to effect by WTO Members.

About the Author

Francesco Montanaro is a Dual PhD candidate at Bocconi University, Milan, and Paris II Panthéon Assas University. Prior to this, he worked in the arbitration department at Ashurst LLP, and at Bonelli, Erede, Pappalardo Studio Legale, Milan. His re-search interests lie in EU Law, WTO Law and International In-vestment Law. Graduated magna cum laude in Law at Bocconi University, Milan, he holds an LLM in EU Law from the College of Europe, Bruges (Belgium).

Endnotes

1 M. Zander, The Law Making Process, CUP, (1999), p. 198.2 White v. Bateman, 89 Ariz. 110, (1961). See also Lord T.

Denning, The Discipline of Law, Butterworths, (1979), p. 296.

3 V. D. Foussard, La jurisprudence constante de la Cour de cassation dans l’image doctrinale de la Cour de cassation, DF, (1994), p. 225; V. P. Morvan, En droit, la jurisprudence est une source de droit , RRJ, (2001), p. 77.

4 G. Guillaume, The Use of Precedent by International Judges and Arbitrators, J Int’l Disp. Sett. 2, No. 1, (2011), p. 10.

5 The ECJ and the WTO disputes settlement mechanisms share some common features. Notably, they (i) interpret and enforce trade rules geared to remove barriers to trade in goods and services , (ii) are integral part of an international organization and (iii) have a two-tiered structure.

6 D. Chalmers, G. Davies & G. Monti, European Union Law: cases and materials, CUP, (2010), p.169.

7 N. Reich, C. Goddard & K. Vasiljeva, Understanding EU Law: Objectives, Principles and Methods of Community Law, Intersentia, (2005), p. 35.

8 J.E. Alvarez, The Evolving International Investment Regime: Expectations, Realities, Options, OUP, (2011), pp. 66-69.

9 See, amongst others, Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, Decision on Jurisdiction, 14 November 2005, ICSID Case No. ARB/03/29, para. 76; AES Corporation v. The Argentine Republic, Decision on Jurisdiction, 26 April 2005, ICSID Case No. ARB/02/17, para. 30.

10 See F. Pocar & G. Acquaviva, Stare decisis, Max Planck Encyclopedia of Public International Law, (2007); G. Sacerdoti, Precedent in the Settlement of International Economic Disputes: the WTO and Investment Arbitration models, in A.W. Rovine (Ed.), Contemporary Issues in International Arbitration and Mediation: The Fordham Papers, Martinus Nijhoff Publisher, (2011), pp. 229-234.

11 H. Lauterpacht, The Development of International Law by the International Court, CUP, (1982), p. 14. In this regard, it is worth noting that there is a fundamental difference between an arbitral tribunal and an international court. The former is established for the sole purpose of adjudicating a given dispute, whilst the latter is a stable adjudication body whose establishment is not dependant on the dispute.

12 AB Report, US-Foreign Sales Corporation, WT/DS108/AB/R, 24 February 2000, footnote 127.


21

13 AB Report, Japan-Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 4 October 1996, para. 14. This rigid dichotomy is probably a reflection of the division of powers within the WTO. To put it simply, the dispute settlement mechanism represents the judicial branch of WTO, whilst the Ministerial Conference and the General Council serve as a sort of legislative branch. See M. OESCH, Standards of Review in WTO Dispute Resolution, OUP, (2004), p. 34.

14 Only in one case was the AB required to decide whether a 1981 Council Action could be deemed an authoritative interpretation. But it refused to do so on the grounds that the Commission’s statement was not sufficiently clear and unequivocal. See AB Report, US-Foreign Sales Corporation, cit., para. 112.

15 I. Van Damme, Treaty Interpretation by the WTO Appellate Body, The European Journal of International Law 21, no. 3, (2010), p. 613.

16 D. Palmeter & P. Mavroidis, The WTO legal system: sources of law, AJIL, (1998), p. 92. By contrast, Scully-Hill and Mainecke argue that neither Article 3(2) of DSU nor Article IX(2) of the WTO Agreement preclude the stare decisis doctrine. See A. Scully-Hill & H. Mainecke, The Emergence of the Doctrine of Stare Decisis in the World Trade Organization Dispute, LIEI 36 (2), (2009), p. 150.

17 R. Bhala, Precedent Setters: De facto stare decisis in WTO adjudication, FSU J Trans. Law & Policy 9, (1999), p. 2.

18 R. Bhala, The Myth About Stare Decisis and International, Am. U. Int’l L. Rev. 14, (1999), pp. 886-917.

19 J.H. Jackson, The Jurisprudence of GATT and the WTO: Insights on Treaty Law and Economic Relations, CUP, (2000), p. 127.

20 Panel Report, India-Patents (EC), WT/DS79/R, 24 August 1998, para. 7.30.

21 AB Report, Japan-Alcoholic Beverages II, cit., para. 14.22 Panel Report, EC-Salmon (Norway), WT/DS337/R, 16

November 2007, para 7.69.23 AB Report, US - Shrimp (Article 21.5 - Malaysia), 22 October

2001, WT/DS58/AB/RW, paras. 108-109.24 C. Carmody, A theory of WTO, JIEL 11, No. 3, (2008), p. 544.25 Ibid.26 US-Stainless Mexico. WT/DS344/AB/R, 30 April 2008, para.

161.27 M. Oesch, cit., p. 178.28 AB Report, US-Oil Country Tubular Goods Sunset, WT/DS268/

AB/R, 29 November 2004, para. 188.29 AB Report, US-Stainless Mexico, W T/DS344/AB/R., 30 April

2008, para. 161.30 Appellate Body Report, US – Stainless Steel (Mexico), cit., para.

160; Panel Report, US – Continued Zeroing, WT/DS294/R, 31 October 2005, paras. 7.174, 7.179-7.180; AB Report, US – Continued Zeroing, WT/DS322/AB/R, 9 January 2007, para. 362. See also D. Palmeter & P. Mavroidis, Dispute Settlement in the World Trade Organization: Practice and Procedure, Kluwer Law International, (1999), p. 45.

31 Panel Report, U.S. –Countervailing and Anti-dumping measures on certain products from China, WT/DS449/R 27 March 2014, para. 7.317.

32 Nonetheless, another author has maintained that the absence of stare decisis doctrine in WTO law is a “myth”. See R. Bhala,

Precedent Setters: De facto stare decisis in WTO adjudication, cit., p. 2.

33 In this regard, it has been held that “subsequent practice” under VCLT Article 31(3)(b) does not encompass previous panels and AB’s reports AB Report, Japan-Alcoholic Beverages II, cit., p. 12.

34 AB Report, Japan - Alcoholic Beverages II, cit., p. 31.35 AB Report, Mexico - Corn Syrup (Article 21.5 — US), WT/

DS132/RW, 22 June 2001, para. 107.36 The rejection of the binding precedent doctrine can be seen

as a corollary of a voluntarist conception of international law. According to this school of thought, the States are the only subjects of International Law and their will is the only source of international obligations. The idea of “judge-made law” is clearly at odds with this view. In fact, it implies that States would be bound by rules which they have not directly negotiated. For a complete account of voluntarism, see D. Anzilotti, Corso di Diritto Internazionale, Rome, (1928), passim.

37 G. Marceau, A. Izaguerri & V. Lanovoy, The WTO’s Influence on Other Dispute Settlement Mechanisms: A Lighthouse in the Storm of Fragmentation, JWT 47 (3), (2013), p. 540.

38 Continental Casualty v. Argentina, Award, 5 September 2008, ICSID Case No. ARB/03/9, para. 192.

39 G. Marceau, A. Izaguerri & V. Lanovoy, cit., p. 531.40 The phrase “cross-fertilization” was coined to define the mutual

influence between WTO law and Public International law. See J. Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, AJIL 95, No. 3, (2001), p. 552.

41 G. Marceau, A. Izaguerri & V. Lanovoy, cit., p. 532. See also on “fragmentation” P.M. Dupuy, L’unité de l’ordre juridique international, RCADI 9, (2002), p. 489.

42 J. Kurtz, The Use and Abuse of WTO Law in Investor – State Arbitration: Competition and its Discontents, The European Journal of International Law 20, no. 3, (2009), p. 769.

43 Ibid.44 R. Howse & E. Chalamish, The Use and Abuse of WTO Law in

Investor-State Arbitration: A Reply to Jürgen Kurtz,, EJIL 20 (4), (2010), p. 1090.

45 F. Snyder, The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques, in T. Daintith (Ed.) Implementing EC Law in the United Kingdom: Structures for Indirect Rule, John Wiley & Sons, (1995), p. 64.

46 K. W. Abbott & D. Snidal, Legalization and World Politics International Organization, International Organization 54, No. 3, (2000), pp. 441-444.

47 K. J. Pelc, The Politics of Precedent in International Law: A Social Network Application, APSA Annual Meeting Paper, (2013), p. 8. See also C. Davis, WTO Adjudication as a Tool for Conict Management, WP Princeton University, (2012), passim..

48 T. Ginsburg, International Judicial Law-making, University of Illinois Legal WP Series, (2005), p. 26.

49 An author argued that this tendency witnesses the hegemonic role of WTO with respect to Regional Trade Agreements. See H. Dieter, The Multilateral Trading System and Preferential Trade Agreements: Can their Negative Effects be Minimised?, German Institute for International and Security Affairs, Berlin GARNET WP No. 54, (2008), p.4.

https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-Html.aspx?Id=46367&BoxNumber=3&DocumentPartNumber=1&Language=E&Window=L&PreviewContext=DP&FullTextSearch=

https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-Html.aspx?Id=46367&BoxNumber=3&DocumentPartNumber=1&Language=E&Window=L&PreviewContext=DP&FullTextSearch=


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Calendar of Events

SBM International Law Section EventsSBM International Law Section Council Meeting and Program12 November 2015

SBM International Law Section Council Meeting and Program21 January 2015

SBM International Law Section Council Meeting and Program18 March 2015

Other EventsICTR International Symposium Call for Papers6-7 November 2014 – Arusha, TanzaniaThe International Criminal Tribunal for Rwanda (ICTR) is organizing an International Symposium on the Legacy of the ICTR to be held in Arusha, Tanzania6-7 November 2014 (the Symposium)

2nd International Conference on Trade, Business, Economics, and Law17 November 2014, London, UK

Annual Conference on Intellectual Property and International Law17 November 2014, London, UK

Webinar: The Growth of Venture Capital and Private Equity in Silicon Beach and Beyond: New trends in the venture capital/private equity industry20 November 2014

IBA North American Regional Forum Conference: Best Practices and New Developments in High-Stakes Litigation and Arbitration4 December 2014, Atlanta, GA, USA

Mergers and Acquisitions in Russia and the CIS4 December 2014, Moscow, Russia

The 2015 International Conference on Law, Patent, and Technology21 January 2015, Bangkok, Thailand

6th Annual Anti-Corruption and Compliance for the Oil, Gas and Extractive Industries29 January 2015, London, UK

The New Normal: Revisiting the Transatlantic Relationships29-30 January 2015, New York, USA

IBA Annual Conference on International Criminal Law: International Legal Challenges for 201531 January – 1 February 2015, The Hague, Netherlands

4th IBA/CIOT Conference: Current International Tax Issues in Cross-Border Corporate Finance and Capital Markets9-10 February 2015, London, England

18th Annual International Arbitration Day27 February 2015, Washington D.C., USA

20th Annual International Wealth Transfer Practice Conference2-3 March 2015, London, England

The following link provides more information about many of the above events, as well as more events around the globe: http://www.ibanet.org/Conferences/conferences_home.aspx


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Section Member Profile: Bushra A. Malik

Bushra A. Malik

Bushra A. Malik is a shareholder in Butzel Long’s Bloomfield Hills Office, and practices in the area of im-migration law, focusing her practice on the representation of multinational and domestic clients’ inbound and global migration needs. She is a graduate of the University of Michigan Law School; has worked for the United States Foreign Service, Executive Office of Immigration Review at the Chicago Immigration Court; and has externed with the United Nations High Commissioner for Refugees in New Delhi, India, and the legacy Im-migration and Naturalization Service, Office of the General Counsel in Washington, DC.

Q. How do you define “international law”?International Law regulates the actions and behaviors of individuals across borders. For example, I practice immigration

law, in which governments create rules that control the migration of people across international borders. My expertise is in U.S. Immigration, which involves representing corporate clients who require assistance in hiring talented foreign citizens, as well as Global Migration, which involves assisting corporate clients with securing work authorization for employees they need to send abroad.

Q. Why did you choose to work in international law (or a related field)?

I chose to work in International Law because I saw a great need in the immigrant community. My parents immigrated to the U.S. and Canada from Pakistan, and I grew up watching the plights and struggles of immigrants going through the bureacracy of the immigration process. I wanted to become an immigration attorney to help immigrants navigate complicated immigration rules and processes.

Q. Where did you go to law school?University of Michigan, Ann Arbor, Michigan.

Q. What would you want people who know you professionally to know about you personally?I have a great passion for asylum and refugee work. I work at a large firm, Butzel Long, which has whole heartedly supported

my pro-bono efforts in representing Ahmadi Muslims who are fleeing religious persecution from Pakistan.


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Treasurer's ReportCurrent Activity

August 2014

Year-to-dateAugust

2014

Year-to-dateAugust

2013

Revenue:

International Law Section Dues 35.00 14,350.00 13,020.00

International Stud/Affil Dues 40.00 115.00

Total Revenue 35.00 14,390.00 13,135.00

Expenses:

ListServ 250.00 250.00

Meetings 2,976.58 4,005.12

Seminars 647.41 155.00

Annual Meeting Expenses 52.85 1,043.58

Travel 1,265.95 1,777.75

Telephone 11.45 210.71 188.61

Newsletter 3,156.53 3,225.70

Postage 65.89 10.90

Miscellaneous 72.08 96.92

Total Expenses 64.30 9,688.73 9,709.90

Net Income (29.30) 14,701.27 3,425.10

Beginning Fund Balance: 14,068.30 17,268.85

Total Beginning Fund Balance 14,068.30 17,268.85

Ending Fund Balance 18,769.57 20,693.95

For the eleven months ending August 31, 2014


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A meeting of the Council (“Council”) of the Interna-tional Law Section (“Section”) of the State Bar of Michigan (“State Bar” or “SBM”) was held on May 21, 2014 at the University of Detroit Mercy School of Law located at 651 E. Jefferson, Detroit, MI 48226.

The following officers of the Council were present in person: A. Reed Newland, Chairperson; David B. Guenther, Chair-Elect; Daphne A. Short, Secretary; and, Lara Fetsco Phillip; Treasurer. A quorum of voting members of the Coun-cil were present in person. Names of each of the attendees will be filed with these meeting minutes.

Call to OrderA. Reed Newland, Chairperson of the Section, called the

meeting to order at approximately 4:45 pm.

Approval of AgendaThe Chairperson circulated an agenda for the meeting,

which was approved as presented.

Notice and QuorumDaphne A. Short, Secretary of the Section, presented a

written notice of the meeting that was mailed or delivered to all members of the Council and to Members of the Section in accordance with the Section’s Bylaws. The Secretary said that the notice will be filed with the minutes of the meeting.

Approval of Meeting MinutesThe Secretary circulated a draft of the minutes of the

Council meeting held on March 19, 2014. Upon motion made and supported, the Council approved the minutes without correction. The Secretary reported that approved min-utes of the Section Council meetings are regularly posted on the Section website at www.michbar.org and that the ap-proved minutes would also be posted to the Section website.

Treasurer's ReportLara Fetsco Phillip, Treasurer of the Section, presented the

unaudited financial statement of the Section for the five months ending April 30, 2014 and the related detailed trial balance for the same period, prepared by the Finance & Administration Division of the State Bar. As of the five months ending April 30, 2014, the revenues of the Section were $14,250.00, and expenses for the same time period were $4,026.67, resulting in Net Income of $10.223.33. The Section’s ending fund balance

as of April 30, 2014 was $24,291.63. The Chairperson noted that the Section’s financial statements are generally reprinted in the Michigan International Lawyer.

2014 Annual Meeting UpdateThe Chairperson introduced Chair-Elect David Guenther

to present the topic of the 2014 annual meeting. The tentative date for the meeting is September 11, 2014. David reported that he has conducted a good amount of research on possible locations for the meeting such as the Inn at St. Johns or the Detroit Yacht club. David is concerned that the audio visual costs of these locations seem high as he strives to contain the meeting expenditures to the normal annual meeting budget ($3500-$4000). Lara Fetsco Phillip provided information about the Detroit Institute of Art (DIA) and the Detroit Sym-phony Orchestra (DSO) and reported that both of these loca-tions would be willing to waive their facility rental fee. Pricing for these venues needs to be explored, but the Paradise Lounge at Orchestra Hall can accommodate up to 75 people. The an-nual meeting and program is currently planned to follow the same format as previous years with a luncheon followed by the program and a cocktail reception. Other suggested venues for exploration were Greenfield Village, Detroit Historical Mu-seum, and the Detroit Opera House.

The planned topic for the meeting is “Regulating the Inter-national Data Cloud: New Proposals and Initiatives.” The topic will be relevant to practice both domestically and internation-ally as well as address data privacy concerns. Thoughts and suggestions are still being accepted on the topic. A meeting is planned for Friday, May 23rd to further discuss the annual meeting.

Chairperson's ReportThe Chairperson began his report by reporting that the

law school lunches have been conducted at three of the five area schools. Successful events have occurred at Wayne State, the University of Detroit-Mercy, and Michigan State Univer-sity. Lunches will be planned in the Fall for the Thomas M. Cooley and University of Michigan campuses.

An ad-hoc committee is being formed to address the inter-national dispute resolution topic discussed at previous meet-ings. The mission statement of the committee is “Enhancing Michigan’s Role in International Dispute Resolution”. The com-mittee plans to meet over the summer. If you are interested in being part of this committee, please contact Reed.

Minutes of the Council of the International Law Section of the State Bar of Michigan

http://www.michbar.org


26

The Chairperson also noted that he and Bruce Thelan will be serving as panelists at the Young Lawyer’s Summit on May 31st in Lansing. Aaron Ogeltree will be serving as a moderator to the panel.

Chair-Elect, David Guenther and Secretary, Daphne Short are planning to represent the Section at the State Bar Leadership Forum taking place on June 6th and 7th on Macki-nac Island. The forum is a great opportunity for the Section to stay informed about the happenings of the State Bar and gain tools to increase membership and build the Section.

Quarterly meetings for the 2014-2015 are being planned for November, January, March, and May. If you have sugges-tions for topics and/or locations, please contact David Guen-ther or any other Section officer.

Committee Chair Goals and Reports

The Chairperson invited the Section’s Committee chairs to report on their activities.

International Trade Committee

Aaron Ogeltree reported that the International Trade Committee would be interested in hosting one of the quar-terly section meetings.

No other committees reported.

Law Student Reports

There were no law student reports.

State Bar Liaison Report

Peggy Costello, the Section’s SBM liaison, shared com-ments about the status of the unified bar. The Supreme Court appointed a task force to investigate the matter. Hearings were conducted a few weeks ago but were not open to the public. Little information has been released regarding the hearings. The task force is expected to issue their report by June 6th. Any additional input regarding the topic should be submitted to the task force now.

New Business

There was no new business.

Adjournment

There being no further business to come before the Council, the Chairperson adjourned the meeting at approxi-mately 5:20 pm.

Dinner and Program

The featured topic was “Nuts and Bolts of Investment Treaty Arbitration: What Every Deal Maker Should Know About Pro-tecting Cross-Border Investments”. Our program speaker was Council Member, Troy Harris, Interim Dean and Associ-ate Professor of Law at the University of Detroit Mercy Law School.

The program was very well attended.

Respectfully submitted,Daphne A. Short, Secretary 2013-14International Law Section, State Bar of Michigan


27

Officers

Chair: David Guenther

Chair-Elect: Daphne Short

Secretary: Lara Phillip

Treasurer: Debra Auerbach Clephane

Immediate Past Chair: A. Reed Newland

Committee Chairs

Business and Tax: TBD

International Trade: Neil Woelke

Emerging Nations: Richard Goetz and Tim Kaufmann

Employment and Immigration: Linda Armstrong

Human Rights: Andrew Moore

International Dispute Resolution: Troy Harris

Mentor-Mentee: Gregory Fox

Diversity Coordinator

Aaron Ogletree

Commissioner Liaison

Colleen A. Pero

Council Members

Timothy Attalla (2015)

Linda J. Armstrong (2015)

Neil Woelke (2015)

Troy Harris (2016)

Aysha Jamil Kasham (2016)

Timothy Kaufmann (2016)

Douglas F. Duchek (2017)

James Y. Rayis (2017)

Robert L. Rothman (2017)

Law Students Representatives

WSU- Shahar Ben-Josef, J.D./M.A. candidate 2015


Professor Gregory Fox

Shahar Ben-Josef, Senior Editor

Carly Colombo, Student Editor

Corey Neil, Student Editor

2014-2015 Roster, State Bar of Michigan, International Law Section

NONPROFITU.S. POSTAGE

PAIDLANSING, MI

PERMIT NO. 191

State Bar of MichiganMichael Franck Building306 Townsend StreetLansing, MI 48933-2083


The Three Dimensions of Judicial Precedent in the WTO System

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