Call for Papers: Conference on International Law in Africa

Published on January 19, 2012        Author: 

5 & 6 October 2012

Complexo Pedagogico, Universidade Eduardo Mondlane,

Maputo, Mozambique



In anticipation of the 50th anniversary of the creation of the Organisation of African Unity (OAU) in 2013:

  • the African Foundation of International Law (AFIL)
  • the Centre for Human Rights, University of Pretoria, South Africa
  • the Institute for International and Comparative Law in Africa (ICLA), University of Pretoria, South Africa
  • Faculdade de Direito, Universidade Eduardo Mondlane, Mozambique

are pleased to announce a two-day conference on international law in Africa and invite proposals for papers.

This conference aims to provide a forum for reflection on the pan-African organisation in the specific context of human security, peace and development in Africa, and how the OAU/AU has responded to challenges in these areas.

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Diplomatic Assurances, Torture and Extradition: The Case of Othman (Abu Qatada) v. the United Kingdom

Published on January 18, 2012        Author: 

Conor McCarthy is Visiting Fellow at the British Institute of International and Comparative Law.

The European Court of Human Rights has handed down its long-awaited judgment in the case of Othman (Abu Qatada) v. the United Kingdom which, despite the initial furore that is likely to surround it in the UK, is also a case of substantial legal significance. The judgment sheds light on the circumstances in which it may be permissible under the ECHR (“the Convention”) to expel an individual to a third state where the use of torture is prevalent on the basis of assurances against torture or ill-treatment. Significantly, the Court also lays down, in emphatic terms, principles as to the permissibility of expelling an individual to face trial in a third state where evidence obtained through torture may be used in trying that person.

The Applicant’s Background

Abu Qatada is a high-profile radical Islamic cleric considered by the United Kingdom to be a threat to its national security and who is sought by Jordanian authorities (and indeed authorities in a number of other countries) in connection with a series of terrorist offences. He arrived in the United Kingdom in 1993 when he was granted asylum, having fled from Jordan where he had been tortured in detention in 1988 and 1990-1991. However, as he is regarded as a threat to national security, the UK has sought to extradite him to Jordan.

Bilateral Assurances on Torture or Ill-Treatment

As regards the question of MOUs or diplomatic assurances, some background is helpful. Following the September 11 attacks in the United States the question of the deportation of terrorist suspects, considered a threat to UK national security, to countries where they may face a risk of torture moved high on the political agenda. In 2001 the UK Foreign and Commonwealth Office advised the government that Article 3 of the Convention precluded the deportation of terrorist suspects to Jordan. However, in 2003 a Government review of the possibility of removing such barriers to removal was conducted and it was proposed that certain key countries, including Jordan, could be approached to determine whether they would be willing and able to provide assurances to guarantee that potential deportees would not be subjected to torture or inhuman and degrading treatment. Following this, the United Kingdom’s Foreign Secretary agreed that seeking specific and credible assurances from foreign governments, in the form of Memoranda of Understanding (“MOU”), could be used to enable the deportation of certain individuals from the United Kingdom and in 2003 the British Embassy in Oman were instructed to seek such assurances from the Jordanian government.

Various negotiations ensued and a MOU was agreed between the United Kingdom and Jordan in 2005. On its face, the MOU provided that a receiving state would respect its obligations under international human rights law with regard to the treatment of persons returned under the MOU. In addition, it was specified that if a returned person was detained within three years of his date of return “he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities”. The MOU also specified that the receiving state will not impede consular access to the sending state by a person deported under the MOU.

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Briefly Noted: New Report on Somali Piracy

Published on January 12, 2012        Author: 

The House of Commons Foreign Affairs Committee released its report on Somali piracy on 5 January 2012.* I acted as a specialist advisor to the committee, so I will not offer a full analysis but simply highlight some points of interest:

  • the report is critical of the failure to contain piracy in the Indian Ocean; however, it acknowledges that absent further naval resources the only effective way to protect vessels is to allow them to protect themselves – it thus supports the use of armed guards in some cases;
  • indeed, the committee notes that UK government policy on armed guards appeared to shift during its inquiry, with the release last December of a Department of Transport policy allowing the use of armed security on UK flag vessels for the first time;
  • the committee calls on the government to issue clear guidance on when armed guards may use potentially lethal force, noting that Crown Prosecution Service guidance on self-defence was not drafted with armed security guards in mind (paras 35-37);
  • the report includes as appendices transcripts of evidence; of particular interest is the evidence of Major General Buster Howes (head of the EU NAVFOR counter-piracy mission), Sally Healey (Somalia expert) and Paul and Rachel Chandler (piracy hostages – though some of their evidence will remain redacted until such time as no British hostages are being held);
  • the committee rejects calls for an international piracy tribunal or an extra-territorial Somali court sitting in Arusha and supports “recent proposals for specialised anti-piracy courts established within regional states under ordinary national law” as the most efficient and practical option (para 92);
  • the explanation of how decisions to prosecute and transfers for prosecution operate in practice is enlightening (see paras 102-3 in particular);
  • the report urges the government to consider prosecuting those piracy suspects intercepted by the Royal Navy in the UK where no other State will accept the case (para 107) but notes UK law may need clarification/updating (para 84 and n. 162);
  • also worth attention are the sections on “solutions on land” (noting that present “[i]nternational capacity to rebuild a Somali state is extremely limited” but supporting “community engagement” as the way forward) and on the UK government response to the Chandler case (recommending a review of procedures and lessons learned); and
  • finally, there are a series of interesting tables and graphs in the report, including those at pages 30 (total attacks against shipping compared to successful hijackings), 39 (numbers of ships and hostages held by pirates over time), 53 (pirate prosecutions internationally), 56 (total ransoms paid).

One statistic evident in, but not highlighted by, the report is the success rate of pirate attacks which halved from 2010 to 2011 (see page 30). This piece of good news is probably due to a mix of factors including naval patrolling, improvements in the passive security measures taken by vessels following Best Management Practices and increasing use of armed security. None of these measures, of course, should be seen as a panacea.

*I note the House of Lords also inquired into Somali piracy, reporting on 14 April 2010.

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Cambridge Journal of International and Comparative Law – Call for Papers

Published on January 10, 2012        Author: 
The students at the University of Cambridge Law Faculty have established a new international law journal – the Cambridge Journal of International and Comparative Law. Although student run law journals are very much the norm in the US, they are less well known in Europe, including in the UK. The CJICL has significant involvement from established academics and unlike US journals will be a peer reviewed journal.
The Cambridge Journal of International and Comparative Law is a newly established double-blind peer reviewed, open-access journal which aims to publish high-end legal scholarship. It has a broad focus on international and comparative law and a particular focus on publishing work that examines the intersection of different international, domestic and transnational legal regimes. The Journal aims to become a platform for constructive and critical dialogue between the well-established academics and practitioners on the one side and the younger generations on the other. It will have two substantive issues per year and a annual special issue, which will critically examine the decisions of the UK Supreme Court from the preceding judicial year. The CJICL is the only journal to produce a full issue review of the previous three terms of the work of the UK Supreme Court.
The journal is currently seeking papers for its inaugural issue and the call for papers can be found here.
The CJICL’s website will also host a blog which we at EJIL:Talk! welcome to the international law blogosphere! Sahib Singh, who is on the CJICL’s editorial board, and who has previously contributed to EJIL:Talk! has written a piece, below, on the Iran, The Nuclear Issue and Countermeasures which is cross posted on the CJICL blog.
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Iran, The Nuclear Issue & Countermeasures

Published on January 10, 2012        Author: 

Sahib Singh is a Visiting Lecturer of International Law at the University of Vienna, a Visiting Fellow at the British Institute of International & Comparative Law and a PhD candidate at the University of Cambridge. The legal principles and arguments put forward are addressed far more extensively, albeit in the context of a different enquiry, in a forthcoming book chapter on Countermeasures and Non-Proliferation Law (draft here).

Since the publication of the International Atomic Energy Agency’s (IAEA) report on Iran of 8 November 2011, the Iranian nuclear issue has continued to slowly escalate.  This escalation has largely been constrained within its own narrative and of economic sanctions but, at other points, has spilled into diplomatic rows and military threats (see here and here).  In the forthcoming weeks, certainly the US, and possibly the EU, shall significantly broaden existing sanctions, introducing a spate of new sanctions as part of a marked shift in sanctions strategy.  However, despite familiar policy issues arising with such a shift, this post shall examine a foundational legal question: do states, beyond the scope of existing Security Council mandated sanctions, have standing to take unilateral countermeasures against Iran, and if so, upon which particular legal grounding?  In particular, I wish to examine the question of standing, under the law of State responsibility (particularly under Article 42(b)(ii) of the ILC Articles on State Responsibility), to respond to alleged breaches of the collective non-proliferation obligations contained in the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).  The post shall determine that there is a considerable ambiguity in the law, arising from the tension between the law of treaties and the law of state responsibility, and arguably, states undertaking unilateral sanctions as a form of countermeasures against Iran may not have strict legal standing to do so (see here, pp. 10-24 for a more detailed examination).

Background & Delineating the Legal Question

Since 2002, when Iran revealed uranium enrichment facilities in Natanz and Arak that had been previously concealed for nearly 18 years, the IAEA and the international community has viewed Iran’s nuclear program with concern for its possible military dimensions.  Iran has continuously sustained its ‘inalienable right’ to peaceful use of nuclear technology (including acceptable levels of uranium enrichment) under Article IV NPT.  Despite mere suspicions and no conclusive evidence of a clandestine nuclear weapons program, and acting in discordance (although not necessarily in breach) with Article XII(c) of its Statute, the IAEA referred the case of Iran to the UN Security Council (UNSC) in February 2006.  Since the passage of UNSC Resolution 1696 (2006), Iran’s rights and obligations in relation to its nuclear program have been severely transformed, and the first of four rounds of UNSC Chapter VII economic sanctions were put in place.  The latest and most extensive of these was UNSC Resolution 1929 (2010), passed on 9 June 2010 (see pp. 39-44 of my paper for a discussion of parts of it). Read the rest of this entry…

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Reminder: ESIL in Valencia

Published on January 9, 2012        Author: 

Just a quick reminder to our readers that the deadline for the submission of abstracts under the call for papers for this year’s conference of the European Society of International Law in Valencia is 20 January. The conference homepage is here.

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Once upon a time there was a gap … (repeat)

Published on January 6, 2012        Author: 

Editor’s Note: This is another repeat post of an old favourite. The piece was first posted in December 2010. Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge.

Once upon a time/Es war einmal/Il y avait une fois/C’era una volta, way back at the end of the Cold War, the Comptroller-General for the Complete System was performing his quarterly ‘stress test’ on the normative integrity of the international legal system when he detected a gap.  At first he did not believe it.  He had been taught, and throughout his professional life had encountered nothing which caused him to doubt, that such a thing was impossible.  The combination of the Lotus principle and the residual negative always provided an answer in extremis.  But the gap he was dealing with here was not that sort of gap.  Nor was it, as most supposed gaps are, merely a question of international law the answer to which is not to the interlocutor’s liking.  Here was a real gap, and an existential gap at that.  The Comptroller-General for the Complete System was perplexed.  I need some help with this, he thought.

Within a week, news of the gap was the subject of fevered speculation across the globe in faculties of law, ministries of foreign affairs, intergovernmental and non-governmental organisations and the boardrooms of multinational corporations.  From the ends of the earth, international lawyers—academics and practitioners, positivists and naturalists, doctrinal exegetes and critical theorists—gathered to discuss the unnerving development.

The first to offer an opinion were the legal advisors to the US Department of State and the multinational corporations—respectively, one should add, although it was sometimes hard to tell the difference.  To them the source and nature of the gap was obvious: it was the hole left in the international legal order by the conceptual bankruptcy of statism, a space rich in possibilities which individual and market freedoms were expanding to fill.  Having no need to hear the opinions of others, and time being money, these legal advisors then went back, perhaps not quite respectively, to drafting bilateral investment treaties.  The parole passed from the legal advisers to the various European governments, who characterised the gap as the hole left in the international legal order by the welcome collapse of anti-liberal humanist tyranny, a space rich in possibilities for the construction of a new Europe.  A spontaneous chorus of Beethoven’s Ninth rang out from Lon- … well, Paris to Berlin.  (In Warsaw, Prague and Budapest they were too busy buying colour TVs, while in Sofia, Minsk and Kiev they were standing around waiting for Beethoven’s rehabilitation.) 

Next to speak were the theorists.  Some of these read the gap as the silhouette of the Other.  A few of the women present, whom everyone had ignored until now, discerned in the shape of the gap an unmistakable phallus.  Queer theorists cheekily took to calling the gap the ‘glory hole’.  For his part, a kindly English gentleman, who, people whispered scarcely credibly, had worked for many years for the Foreign Office, divined in the gap the first breach in Vattelian international law opened up by a new self-constituting society of all societies.  A bespectacled, boyish Finn thought the gap looked kitsch.

The international environmental lawyers showed a sense of humour by likening the gap to the plug-hole down which had disappeared the emerging right to life of whales.  As the decade wore on, waggish international legal observers of western foreign policy began to liken the gap instead to the plug-hole down which had disappeared the emerging right to democratic governance.  By the turn of the millennium, an Australian professor, one of several thousand present, was remarking jokingly upon the uncanny similarity between the hole and the receptacle into which the International Law Commission had deposited the concept of the criminal responsibility of states, pulling the chain afterwards.

But none of these accounts captured the true character of the gap, which, as the Comptroller-General for the Complete System had rightly apprehended, was more essential.  Consternation increased.  The kindly English gentleman tried to sooth raw nerves by reading to everyone from his latest novel, but this only deepened the air of anxious bewilderment.  Things began to get fractious.  The hole was getting a name for itself, but no-one could agree on what that name was.

The matter was eventually referred to the United Nations General Assembly, which invited the aforementioned ILC to begin work on the topic of ‘Gaps and Silences in the Law’.  Read the rest of this entry…

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New Discussions on UN Human Rights Treaty Monitoring Reform: Using the Momentum while Acknowledging Financial and Political Realities

Published on January 5, 2012        Author: 

John Morijn, PhD (EUI (Law)) is senior human rights adviser, Dutch Ministry of the Interior and Kingdom Relations and assistant professor of human rights law, University of Groningen, The Netherlands. Views expressed in this post, based on ‘Reforming United Nations Human Rights Treaty Monitoring Reform, Netherlands International Law Review, LVIII: 295-333, 2011 and further inspired by discussions during the Maastricht University seminar about UN treaty body reform in November 2011, are strictly those of the author only, and do not in any way reflect the position of the Dutch government. E-mail: j.morijn {at} rug(.)nl

Initiatives to rationalise UN human rights treaty monitoring, although simmering already for decades, have witnessed a new dynamism over the last five years. In 2006, the UN Office of the High Commissioner for Human Rights (OHCHR) published a policy paper about this issue. It came to be identified with (and subsequently reduced to) its proposal to streamline human rights treaty monitoring by merging all existing treaty bodies and creating a permanent unified standing expert body. This idea was widely rejected as too radical by members of existing treaty bodies and most other observers.  In 2009 the OHCHR re-launched the debate, slightly rewording the exercise (and therefore, implicitly, perhaps also its rationale) from ‘treaty body reform’ to ‘treaty body strengthening process.’ On this basis consultations have now taken place amongst academics, treaty body members, NGOs and National Human Rights Institutions, and various sets of recommendations and proposals for reform have been published. After two more early 2012 consultation sessions with States, which have so far been rather silent (seemingly focusing their energies on the less binding Universal Periodic Review-mechanism, recently green-lighting its second cycle as of 2012), the OHCHR is expected to propose, by the end of 2012, a new set of measures to alter the modus operandi of UN human rights treaty monitoring.

Notwithstanding the fact that a great many institutions and NGOs have offered input and made proposals in these consultations, there is an uncomfortable sense that the OHCHR will have little to work with if its aim is the drafting a set of realistic proposals that will actually help this human rights protection method move forward in a sustainable way. Most proposals tabled (for a useful summary see this OHCHR overview) boil down to measures and activities that treaty bodies or the OHCHR Secretariat should take up in addition to their current (overburdened) workload. This is accompanied, moreover, by a noted lack of corresponding proposals regarding what activities now carried out in the context of treaty monitoring should be re-organised, re-considered or simply discontinued.

This is striking even for a well-willing and ‘human rights friendly’ observer. Firstly, because 10 treaty bodies running 10 periodic reporting cycles in parallel, whatever the origin of this state of affairs, seems to be rather a parody of a transparent and efficient process. Secondly, and quite apart from the question of whether keeping intact the system as it currently stands is actually such a good idea (see below), it is more immediately hard to gauge how this status quo-leaning approach to ‘strengthening’ can be squared with the realities that the budget for treaty monitoring (which is already completely insufficient for the way the system is currently run) will very likely not be increased by States in the current economic and political climate. Therefore, if we want to avoid losing the momentum for revamping human rights treaty monitoring yet again, creative ideas that keep costs essentially stable but harness its added value and increase its impact are urgently needed. In this post the functioning of human rights treaty monitoring, and implemented and proposed measures to strengthen it, will first be briefly outlined, in particular highlighting apparent institutional and international level biases. Second, some reform proposals will be tabled that would fall within the parameters of current realities.  Given the importance of human rights treaty monitoring it is hoped that this post will generate some reactions and provide the OHCHR with much-needed additional input in drafting its proposals by the end of this year.

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Important Cases Against Russia before the European Court

Published on January 4, 2012        Author: 

Just before the holidays the European Court of Human Rights rendered two important decisions in cases against the Russian Federation. First, a Chamber declared admissible the second interstate application filed by Georgia against Russia (Georgia v. Russia No. 2, App. No. 38263/08, available here). The case arises out of the 2008 armed conflict between Georgia and Russia; in the words of the Court, ‘The applicant Government submitted that, in the course of indiscriminate and disproportionate attacks by Russian forces and/or by the separatist forces under their control, hundreds of civilians were injured, killed, detained or went missing, thousands of civilians had their property and homes destroyed and over 300,000 people were forced to leave Abkhazia and South Ossetia. In their submission, those consequences and the subsequent lack of any investigation engaged the Russian Federation’s responsibility under Articles 2, 3, 5, 8 and 13 of the Convention, Articles 1 and 2 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention.’

The cases raises important questions regarding the extraterritorial application of the ECHR, attribution of conduct by the separatist entities in Georgia to the Russian Federation, and the interplay between the Convention and international humanitarian law. Rather than deal with these matters in its admissibility decision, the Court quite rightly  decided to deal with them on the merits (see esp. paras. 63-68, 71-75 of the decision). Importantly, the Court noted the lack of any derogation by the two states in the context of the armed conflict. This is bound to be a big one – and it seems likely that the Chamber will relinquish its jurisdiction to the Grand Chamber of the Court. (Another big case on the extraterritorial application of the ECHR is coming up for hearing before the Grand Chamber at the end of this monthCatan and Others v. Moldova and Russia  (nos.  43370/04, 8252/05 and 18454/06). Dealing with human rights violations by the separatist Transnistrian authorities in Moldova, this is a sequel to the Ilascu case decided by the Court a few years back.)

Secon, there was the unanimous Chamber judgment in the Dubrovka theatre case – Finogenov and others v. Russia, nos. 18299/03 and 27311/03, press release, judgment). The case concerned the siege of the Dubrovka theatre by Chechen separatists in October 2002, when over 40 heavily armed terrorists equiped with explosives held almost a thousand people hostage in the theatre. The siege was (in)famously ended when the Russian authorties used an opiate gas to knock the terrorists out before storming the place, with the gas causing the deaths of 125 hostages. The families of some of these hostages lodged the application with the Court, claiming a violation of Article 2 ECHR by Russia. The Court held that there had been no violation of the Convention regarding the use of force and gas against the terrorists. It did, however, find that the rescue operation had not been well planned or implemented.

The case is very fact-specific, but I think I can say with some certainty that this will be a new leading case in the Article 2 pantheon, up there with McCann. It is notable for several developments. For example, despite Russia’s completely unsatisfactory cooperation with the Court in establishing the factual record (e.g. the documents of the Russian team that led the operation were all destroyed; Russia failed to answer the Court’s specific factual questions; Russia never disclosed exactly which gas it used, and so forth), the Court was prepared to be extremely deferential and flexible on the factual issues. Indeed, the Court almost entered an ‘IHL-mode’, quite explicitly deciding not to second-guess the Russian autorities’ decision to use force generally in order to subdue the terrorists, and their specific decision to use the opiate gas. The Court found a violation only because the medical rescue operation that followed the storming was manifestly poorly planned, with the authorities for example not even informing the doctors beforehand of the use of the gas. Some choice paragraphs are reproduced below the fold. Most importantly, the fact that the Court quite explicitly based its deferential approach on the Chechen Isayeva case dealing with the indiscriminate use of force shows much promise in providing needed flexibility in other factually complex cases that transcend conditions of normalcy, as e.g. in Georgia v. Russia. The Court awarded more than a million euros in compensation, and it is likely that Russia will appeal to the Grand Chamber – we’ll see what happens.

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Moments of Nino

Published on January 3, 2012        Author: 

EJIL is marking in different ways the passing of Nino Cassese, one of its founding editors. I have no intention of listing all of Antonio Cassese’s many distinctions and achieve­ments as one of the great international lawyers of his generation. Readers of EJIL will be familiar with all of that, and Wikipedia (a decent entry) is just one click away. It is the person behind the public figure who is of interest. One has to be personal. I met Nino for the first time in 1978. I was a young(ish) Assistant at the European University Insti­tute. He was a Professor ‘down town’ in Florence. Relations between the faculty at the University and the EUI on the top of the hill were frosty. At best an entente cordiale. Nino would have none of that. He embraced me and within months of my arrival invited me, first to his home, and then to contribute to a major project he was directing on Parlia­mentary Control of Foreign Policy. I was asked by him to write the Report on the Euro­pean Communities. It was a telling moment. The late Christoph Sasse, distinguished professor of EC law from Hamburg, was indignant: ‘a role for a Professor, not an Assist­ant’. Nino had no patience for that stuff either. He really did not know me all that well and was taking a risk. But it was typical of him: reaching out, welcoming, having faith, including the young, foreigners. It galvanized me. It was, too, a lesson for life.

Planting trees together, ploughing fields, building houses, jointly creating some­thing from nothing, all bring people together as little else does. I was privileged to build two houses together with Nino. One was this Journal – EJIL. Bruno (Simma) and I had no doubt that it should be Nino we should turn to as our Italian ‘partner’. He embraced the project with his typical enthusiasm and commitment. He had more ideas per gallon than all of us put together. The Italians have a wonderful saying: Nove parlano, Uno fa. Nine talk, one does! Nino was one of those Ones. Indeed, he did the work of all the other nine put together. And of course it was infectious. Those of you with some experience in these matters know how meetings of journals, institutes and the like proceed. The French idiom ‘Il faut’ goes into overtime. One needs to do this, and one needs to do that. A nice way of being creative, engaged and, yet, lazy and un­committed at the same time. Nino would collect all the ‘Il fauts’ like the discarded wine bottles at our meetings and then just do them! Whether it was organizing, or writing.

I attach at the end of the Editorial in the Current Volume of EJIL a list of his contributions to EJIL over the years – some iconic, all memorable. His imprint on the Journal is still everywhere, years after he left to build yet another house, the Journal of International Criminal Justice.

We also established together the Academy of European Law – now in its 23rd year. He took charge of the Human Rights section, I led the EU part. The same enthusiasm was on display there too. Here is a tiny, telling anecdote. At a certain point we had to dismiss an employee of the Academy who simply was not up to the task. Nino just could not do it. He called me, his Co-Director, for a little talk. ‘Joe, you’re an Old Testament type. You have to do it’… I did.

I invite students, colleagues, friends to contribute Moments of Nino – stories and recol­lections, which illuminate not his professorial or judicial or diplomatic prowess, but Nino’s human side and his great humanity. Read the rest of this entry…

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