Commission's Interpretation Research Articles

Silencing, consultation and indigenous descriptions of the world

The Inter-American Court and Commission of Human Rights, following the approach in key international human rights texts, have emphasized the importance of procedural rights in the protection of indigenous rights to territory and to cultural identity. In particular, the Court and Commission have focused on rights to consultation in a range of cases in which indigenous peoples have challenged mining, logging and other extractive activities on their territories. Consultation processes are often expected to serve a wide range of purposes in the protection of indigenous rights and interests in territory. Consultation is a means of informing a community about a project, but also a process through which an agreement can be reached between the community and the State about the use of territory or the sharing of benefits. In this article, I focus on consultation's role as part of the impact assessment process. In determining the impact that a project might have on indigenous territory, the Court and Commission have found that the State must assess both the environmental and cultural impacts of a plan or activity. Consultation is a necessary part of the identification of the impacts of an activity and ensuring that the State has all the necessary information prior to making decisions to grant concessions over indigenous territory. However, the Court and Commission's interpretation of indigenous testimony in consultation processes could undermine the role of such testimony in the assessment of environmental impacts, and might silence indigenous participants rather than ensure their meaningful participation. With reference to the idea of illocutionary silencing, taken from feminist speech act theory, I argue that the Court and Commission have interpreted indigenous testimony about the environment as being claims about the cultural impacts of disputed activities or plans, and not as claims about the environmental impacts. In other words, when indigenous community members have offered descriptions of their territories and surrounding environments, such testimony has been treated not as descriptions of the environment but as reports of cultural beliefs and practices. As a result, indigenous input in regard to the environmental impacts of a project or plan can be overlooked. In this article I argue that this failure to recognize indigenous accounts of the environment means that these communities are silenced through the consultation process and denied the opportunity to be informed about all relevant impacts.

Critiquing the Eritrea-Ethiopia Claims Commission's Interpretation of the Rules on Legitimate Military Objectives: Aerial Bombardment of the Hirgigo Electric Power Station

On 19 December 2005, the Eritrea-Ethiopia Claims Commission (the Commission), in a six-page decision, concluded, by majority vote, that ‘… in the circumstances prevailing on May 28, 2000, the Hirgigo power station was a military objective, as defined in Article 52, paragraph 2, of Geneva Protocol I and that Ethiopia’s aerial bombardment of it was not unlawful.’ The award is the only one in the Commission’s fifteen Awards where a decision was made by majority of votes; the rest were decided unanimously. The substance of the majority’s award and the process it followed to arrive at the conclusion, however, raises some important questions regarding the construal of the relevant provisions of Geneva Protocol I and the weighing and balancing of evidence that an international tribunal such as the Commission must employ. This publication will try to highlight some flaws in the award and discuss how the totality of the handling of the dispute by the majority of the Commission and suggest ways how the majority should have interpreted the relevant international humanitarian law instruments.

Law Exempts Most Physicians From FTC's Red Flags Rule

Back to table of contents Previous article Next article Professional NewsFull AccessLaw Exempts Most Physicians From FTC's Red Flags RuleMark MoranMark MoranSearch for more papers by this authorPublished Online:4 Mar 2011https://doi.org/10.1176/pn.46.5.psychnews_46_5_8_2AbstractPresident Obama signed legislation last December that narrows the definition of a "creditor" under the so-called Red Flags Rule so that its provisions will not apply to most physicians. The Red Flags Rule is a 2008 Federal Trade Commission (FTC) regulation stemming from the commission's interpretation of the Fair and Accurate Transactions Act of 2003, designed to tighten security of financial data held by banks and credit card companies. Under the FTC's interpretation, physicians were classified as "creditors" because physicians bill people for services after they are provided and because physicians sometimes allow payment plans. Under these conditions, they would therefore be required to comply with certain identity-theft-protection measures such as installing monitoring programs. The regulation has been opposed from the beginning by the AMA and other physician groups, including APA, who have argued that the FTC's interpretation was a bureaucratic burden for doctors already subject to regulations that ensure the safety of patient information. APA, the AMA, and some two dozen other medical groups filed a lawsuit last year to exempt members from the Red Flags Rule; that suit is still pending. Opposition to the ruling has resulted in five delays in the FTC's enforcing the rule on physicians. In June 2010, during the AMA House of Delegates Annual Meeting, FTC Chair Jon Leibowitz agreed that applying the Red Flags Rule to physicians was an overly broad interpretation of the Fair and Accurate Transactions Act. But he said it was up to Congress to amend the language of the law. The Red Flag Program Clarification Act of 2010, approved by the Senate last November and by the House of Representatives in early December, does just that by narrowing the term "creditor" to include only entities that use consumer reports, furnish information to consumer reporting agencies, or extend credit. Robert Portman, an attorney representing APA and the other groups in the suit, said that though the legislation clarifies the definition of a creditor, a definitive ruling from the FTC about the status of physicians and other professionals will likely be necessary. He said the FTC has indicated that it will not make a final ruling one way or the other regarding the inclusion of physicians as creditors under the rule until a similar suit filed by the American Bar Association to have attorneys removed from inclusion in the ruling is decided; that decision is not expected until later this year. "The new legislation narrows the definition of a creditor subject to the Red Flags Rule in a way that probably exempts most physicians," Portman told Psychiatric News. "But some may still qualify as creditors, and the amendment gives the FTC broad discretion to identify other kinds of creditors subject to the rule, which may give the agency the power to include physicians if it wants to." More information on the Red Flags Rule is posted at <www.ama-assn.org/ama/pub/physician-resources/solutions-managing-your-practice/practice-management-center/data-security/red-flags-rule.shtml> and <http://business.ftc.gov/privacy-and-security/red-flags-rule>. ISSUES NewArchived

State aid and autonomous regions : the ECJ's ruling in the Basque Country case

The 2006 judgment of the European Court of Justice in the Azores case regarding the European Commission's interpretation of the "selective criterion" of the state aid rules of the EC Treaty opened the door for the ECJ's judgment in the Basque Country case in 2008. This article examines these two decisions of the ECJ. Before doing so, the article describes the financial regime of the Basque Country, which forms the background of the Basque Country judgement.

Influences on the Canadian FIPA Model and the US Model BIT: NAFTA Chapter 11 and Beyond

SummaryIn recent years, Canada and the United States have modified their model bilateral investment treaties (BITs). If NAFTA Chapter 11 cases have provided the new lens through which investment issues are considered, the solutions to problems experienced in this context have come from different sources. This article explores three influences on the model BITs: the NAFTA Free Trade Commission's interpretation and statements, World Trade Organization law and cases, and US domestic law and principles. A range of interpretation issues is raised, from the effects of changes in wording in successive treaties, to the “transferability” of law across systems (international and domestic), to the use of arbitral awards as precedent. Issues of a systemic nature are also raised, including attempts at limiting the discretion of arbitral tribunals through state interpretations, the possibility of creating an appellate mechanism, and a push for expedited preliminary procedures. The article illustrates the fast-paced evolution of international investment law and highlights the influence of the United States on this evolution.

What Property Rights: The California Coastal Commission's History of Abusing Land Rights and Some Thoughts on the Underlying Causes

I. INTRODUCTION When California enacted California Coastal Act of 1976 (Act), (2) and created California Coastal Commission (Commission) to implement policies of that Act, it attempted to ensure balanced approach toward future development along coast. In particular, Act empowered Commission to weigh environmentally-minded conservation goals against economic needs and private property rights in determining how development should proceed. (3) Portions of Act specifically preclude Commission from applying Act in manner that offends constitutional protections for private property. (4) After twenty-five years, it is fair to say that Commission is more attentive today to claims of property rights, at least in some circumstances, than it was in years immediately following its creation. Nevertheless, for many observers, Commission's incremental progress hardly achieves balance between private and public rights contemplated by Coastal Act and United States Constitution. Indeed, in last few years, Commission has been described in following terms: categorically refuses to recognize validity of an individual homeowner's property rights; (5) a perfect example of well-meaning liberalism gone terribly awry; (6) a rogue organization less interested in matters of general interest than in micromanaging such details as color of people's homes, what they can plant in their gardens and whether they should be allowed to fence wild animals away from yards where their children play; (7) the poster child for government power run amok--but because everything commission does is supposedly to protect environment, hardly anybody questions it; (8) established ... to help local governments adopt local coastal plans. Instead, it pulled Saddam, investing itself with dictatorial powers over every last grain of state's 1.5 million acres of coastal property--public and private; (9) If one's goal is to slow development at all costs--even if it means undermining private property rights ... then one would be aghast at monumental court decision this week that says California Coastal Commission is unconstitutional. Everyone else should be elated. (10) A review of extensive body of case law involving Commission and publicly reported accounts of Commission's actions tends to support foregoing complaints, at least to extent they suggest that Commission has insufficient respect for private rights in land. As described in this article, such review indicates that, much of time, Commission operates by neglect at best, and contempt at worst, when it comes to private property rights. Lack of appreciation for individual property rights can be found in all of Commission's activities; one can see it in denial of carefully-planned development projects along coast, imposition of severe conditions on approved projects, strict enforcement of strict reading Coastal Act, and in Commission's interpretation of scope of its own jurisdiction and procedural protections afforded coastal development applicants. (11) This article documents Commission's response to claims of private land rights, whether that response is manifested in substantive or procedural applications of Commission's power, and surveys judicial conflicts which result. Upon coming to conclusion that individual property interests rank low on Commission's priority list, article attempts to explain reasons for de facto policy treating private land use as privilege subject to Commission's control, rather than as constitutionally protected right. Part II of this article reviews purposes of Coastal Act and role of Commission in implementing Act, with special emphasis on Commission's power over activities on private land. Part III surveys selected case law and press accounts documenting Commission's actions, and summarizes instances in which Commission appears to have given insufficient respect to private rights. …

Power analysis as a reflexive scientific tool for interpretation and implementation of the precautionary principle in the European Union.

The diversity of interpretation, the subsequent lack of implementation, and the enforcement of the precautionary principle have been important issues in the European environmental discourse for the past five years. The European Commission published a communication on the Commission's interpretation of the precautionary principle on February 2nd, 2000. However, the distinction between precaution and prevention is absent in the EU Commission's interpretation, resulting in the communication's lacking relevance for the precautionary principle. The important consequence of the precautionary concept in policy and decision-making is that it should not be based on an assumed certainty of the certainty of environmental knowledge--but rather on a certainty of the uncertainty of environmental knowledge. In other words, the regulation should, to a greater extent, be based on the management of uncertainty, and risk assessments should explicitly present and discuss related uncertainty and lack of knowledge. The management of uncertainty should be based on setting the acceptable level of risk of accepting a failure to reject the null hypothesis of no adverse effects (beta). This is done by setting the required power (1-beta) according to a socioeconomic cost-benefit analysis. Moreover, the acceptable ecological effect size (A) could also be set a priori which would have implications for the power of a study. Reversal of the burden of proof could be considered in order to resolve possible legal implications for the risk managers.

Biotech Food and the Precautionary Principle Under EU and WTO Law

This article discusses the implications of the precautionary principle for the EU biotech food regulatory regime. It first briefly reviews the precautionary principle under European law and the related issues of scientific proof and the burden and standard of proof. In the next section, the precautionary principle is examined in the context of the new EU food safety policy. The fourth part reviews Commission proposals for a precautionary product liability regime. The fifth part discusses the Commission's interpretation of the principle and the proposed criteria for precautionary regulation. The sixth part addresses the implications thereof for biotech food regulation, focussing on prior authorization and testing, traceability, labeling, and substantial equivalence requirements, and cost and benefits of biotech food. In the next section, possible challenges to biotech food regulations under WTO law are discussed. The author concludes that certain rules of current and proposed EU biotech regulation are in conflict with the EU's own criteria for precautionary regulation. Accordingly, the precautionary principle would be a potential weapon to fight some current regulatory requirements and additional future regulation. Those requirements may also be inconsistent with WTO law's criteria for trade-restrictive precautionary regulation. But even where WTO law allows members to implement their own policies, the EU should not apply the precautionary principle in a self-serving, selective and one-sided way. A sound and even-handed application of the precautionary principle should focus not only on the risks of biotech food, but also on its benefits. In addition, it should compare the benefits and disadvantages of precautionary regulation to the benefits and costs of no regulation and of alternative, less intrusive measures. Indeed, precautionary regulation itself should be used with precaution.

Legislating through the Use of Commentary: The Sentencing Commission's Interpretation of Section 994(h) of the Sentencing Reform Act

Legislating through the Use of Commentary: The Sentencing Commission's Interpretation of Section 994(h) of the Sentencing Reform Act

Fetal Research: Response to the Recommendations

The June 1975 issue of the Hastings Center Report published the Deliberations and Recommendations of the National Commission for the Protection of Human Subjects concerning the regulation of fetal experimentation. The Commission's most controversial conclusions were as follows: First, it voted to allow non-therapeutic research on the human fetus, provided important biomedical knowledge could not be gained in any other way, proper consent had been obtained, and the research imposed “minimal or no risk to the well-being of the fetus” (Recommendation 4). Because interpretations of the last phrase varied in the case of fetuses scheduled for abortion, the Commission recommended that a national ethical review body be able to rule on disputed cases (Recommendation 5). In the case of research during abortion and research on the non-viable fetus ex utero, the Commission's interpretation of permissible “harm” was restricted to the proviso that “no intrusion into the fetus [may be] made which alters the duration of life” (Recommendation 6). The Commission also recommended further research on abortion techniques (Recommendation 12). The Secretary of Health, Education and Welfare accepted the Commission's Recommendations almost without change—the major modification was to request paternal consent rather than to rely on the fact that “the father has not objected.” The DHEW regulations were published in the Federal Register on Friday, August 8, 1975, and written comments on them were invited. Already, however, a number of commentators including several members of the Commission had offered either dissenting or qualifying remarks. Some are printed here.

Public Offerings and Pre-Filing Publicity

case histories of a regulatory effort by the Securities and Exchange Commission began to unfold September, 1958 when the Arvida Corporation, a Florida land development company, decided to go public. The underwriters held a press conference prior to registration of the new securities with the S.E.C. The Commission's reaction was swift. The S.E.C. opined that the underwriters were violation of Section 5(c) of the Securities Act of 1933 which prohibits the use directly or indirectly of interstate commerce or of the mails to offer to sell through the use or medium of any prospectus or otherwise any security, unless a registration statement has been filed as to such security... . But, before examining the Commission's interpretation of this prohibition as applied to Arvida, let us briefly outline this most interesting sequence of events. In 1958, Arthur Vining Davis, former Chairman of the Board of the Aluminum Company of America, and an energetic millionaire at 91, decided to incorporate approximately 100,000 acres of Florida real estate that he had purchased between 1947 and 1958. He decided to sell two and one half million shares of the new company to be named Arvida. To aid this undertaking Mr. Davis enlisted the service of a syndicate of banking firms headed by Dominick & Dominick and Carl M. Loeb, Rhoades & Co. During July, a meeting was held Miami to work out the various aspects of the contemplated public offering. At this meeting it was noted that there was some concern Florida real estate circles as to the ultimate disposition of the Davis Stanley Grant, a partner of Loeb, Rhoades, submitted a proposed press release which included some description of the giant spread of Davis' lands and mentioned the proposed underwriting. This was revised by Mr. Davis' representatives to state that the major portion of his land holdings were to be brought into the Arvida Corporation. Arvida turn would arrange to obtain the capital for development of the No mention was made of a public offering, underwriting, or underwriters. The substance of this release appeared various Florida newspapers. This was July. By September the final arrangements for the financing had been made and it was decided that another press release should be issued. Again, Mr. Grant drafted the text which was approved by Arvida; representatives of Mr. Davis; Dominick & Dominick; and counsel for the proposed underwriters. However, no financial or public relations counsel was consulted except for the purpose of arranging for the distribution of the release New York City. The release, issued by Loeb, Rhoades, stated that Arvida would be provided with $25-$30 million additional capital through a public offering, and that the new company would have assets of more than $100 million reflecting Mr. Davis' investment together with the public's investment. The release referred to both a public offering scheduled within 60 days and to the transfer by Mr. Davis to Arvida of more than 100,000 acres in the area of the Gold Coast. Three Florida counties were named, and references were made to undeveloped lands and to operating properties. Officers of Arvida were anxious to have the release issued promptly, so a press conference was held the offices of Loeb, Rhoades.