Monday, 10 March 2014

The FCO/BCU Model United Nations Security Council: A Fantastic Legal Experience

Mr. Lamiegha Brinemugha
LL.M. International Human Rights Law (2013-2014)

IT WAS A DREAM come true to be part of the Model United Nations Security Council meeting at the Foreign and Commonwealth Office on February 11, 2014 held in partnership with the FCO Youth Inspiration Group and the Birmingham City University School of Law. I had the honour of representing Guatemala as Foreign Affairs Minister in the Security Council meeting with a view to resolving a fictional crisis in the created African country of Ruritania.

I gained invaluable legal and international relations experience during the MUN. It helped to reveal to me the practical workings and implications of decisions made at the multilateral level of the United Nations.  

International legal sanctions are sometimes expressions of a particular discourse rather than a reflection on the seriousness of the compelling humanitarian issues. It demonstrated to me that member state decisions are very likely characterized in “politics by other means” (both explicitly and implicitly) through high powered diplomacy and in some cases certain resolutions lead to adverse humanitarian crises rather than ameliorating the situation.

An extremely interesting aspect of the event was our “alliance building” for voting on the resolution to be drafted at the end of the session. It revealed to me that many states were not too concerned with the human rights issues and the humanitarian implications, but that they were distracted with how America appeared to have an overarching agenda against the sanctions on Ruritiania.

These developments led to a coalition against America’s interests during the voting session. Thus, some resolutions passed were not really in the interest of the crisis ridden Ruritania but against the motivations of some powerful states.

The MUN was concluded by a resolution drafting session. It quickly became apparent that the legislative language could not be vague and ambiguous so as to render ineffective the implementation of the text. For instance, the Security Council resolution 678 passed on November 29, 1990, authorized member states to use ‘all necessary means’ to  implement Resolution 660 (1990) and all subsequent resolutions to restore peace in Iraq. So at the end of the MUN we were able to draft a “Resolution on Ruritania” but it was not to the satisfaction of all the member states. Perhaps this is exactly how it is in the United Nations’ Security Council?  

Foreign and Commonwealth Office Presentations

We were extremely fortunate to hear from some very prestigious speakers. Ms. Sue Owen, Permanent Secretary, Department of Culture, Media and Sport, spoke very persuasively on the need to increase the employment of women in senior civil service roles. Information was key for helping women progress and the window of direct employment of women into senior positions in the civil service should be opened wider. Ms. Owen used statistical data to advocate for women to get more equal access to senior positions. She cogently identified that a successful team leader must engage in the morale building of women team members and as well identify the strengths and weakness of each member.

We also had a very engaging speech by Mr. Robert Hannigan, Director General for Defense and Security. Mr. Hannigan noted some challenges facing the UN Security Council such as protecting the sovereignty of a state, the veto power of the permanent members, and he gave the audience some valuable insights into the role of the civil service in collating intelligence and the importance of the use of intelligence for appropriate political decisions at the multilateral level.

Then Ms. Melinda Simmons, Head of the Conflict Department, highlighted the challenges posed by member states in protecting their respective interests in areas embroiled in crisis. Ms. Simmons submitted that while the United Nations is an agent of change and promotion of international peace and security, there are constant political challenges that need to be navigated. Recent conflicts in Eastern Europe and Africa were discussed, and she identified that effective dialogue is crucial for the dissipation of conflicts. As a means of preventing conflicts from escalating, countries should be encouraged to enter into bilateral and multilateral treaties, which detail appropriate intervention without unjustifiably undermining the sovereignty of a state. Ms. Simmons maintained that the multilateral political fora was crucially important for maintaining peace in the world.

Concluding Comments   

Interacting with the FCO Youth Inspiration Group was also very rewarding. The YIG were a fantastic group and we all enjoyed our collaborations with them. I had the opportunity of sharing ideas with the group especially on foreign policy as it affects the workings/challenges of the United Nations.

A special thank you to Dr Jon Yorke and Emily Farrow of the Foreign and Commonwealth Office, and the other personnel at the FCO who helped organize the MUN. This event created an invaluable educative platform for interaction, networking and sharing of ideas. We also had an event Facebook page www.facebook.com/BCUMUN?ref=stream  which was a generative resource for materials and pre-event discussions at the MUN.


By way of passing remark, all participants at the MUN whether as participants or otherwise should be given a certificate signed by the FCO and organizing University. I look forward to working with the United Nations or Foreign and Commonwealth Office someday.

Friday, 7 March 2014

The state of Missouri and compounding pharmacies: a Taylor made solution?


By Aaron Bailey, Technical Editor
LLM International Human Rights Law 2013-2014 
ON 26 FEBRUARY 2014 Michael Taylor was executed by the state of Missouri using an execution drug (pentobarbital) which the state had acquired from an unspecified source and which had not been subject to testing for purity, potency or contamination. This article discusses the constitutionality of Missouri’s actions and the differing views offered by both the majority and the dissenting minority in the U.S Court of Appeal (8th Circuit).
In 1989 Michael Taylor was convicted of the rape and murder of a young female victim. Both Taylor and his co-defendant, Roderick Nunley, were sentenced to death following their convictions. It is noteworthy that Taylor had pleaded guilty to the charges and demonstrated remorse very early on in the proceedings yet the District Attorney at the time still felt compelled to seek the death penalty. Unfortunate though it was, one can only speculate on the DA’s reasons for seeking the death penalty and that remains, frankly, outside the scope of this article.
The real focus of this article is on the final appeal to the U.S Court of Appeal the day before the execution and the previous appeal (again to the 8th Circuit of the U.S Court of Appeal) approximately one month before. These appeals both turned on the same legal question: whether failure to disclose information pertaining to the execution drug could result in a prolonged and painful execution therefore violating the Eighth Amendment of the United States Constitution.
The Eighth Amendment guarantees that no-one shall be subject to ‘cruel and unusual punishments’. Of course, what constitutes ‘cruel and unusual punishment’ is naturally a question open to interpretation. In 2008 the Supreme Court, ruling in the case of Baze v Rees, decided that “the Eighth Amendment compels an execution free from an objectively intolerable risk of harm”. Applying this to the Taylor appeal, the question to be asked was therefore whether Missouri’s potentially questionable source of the Pentobarbital and their failure to disclose the source, purity and potency of the drug, could lead to an ‘objectively intolerable risk of harm’ to Mr Taylor. The case was put before the Court of Appeal on January 24th and again on February 25th; the day before Mr Taylor was executed.
In the first judgement (24th January) reaching their decision the majority of the 8th Circuit Court of Appeal relied heavily on an interpretation of Chief Justice Roberts’ opinion in Baze v Rees that if a death row inmate is challenging an existing method of execution, they must plead a ‘readily available alternative method’. As Taylor et al were unable to suggest a different, suitable method the majority of the Court of Appeal held that their challenge of the existing method couldn’t succeed. Interestingly, Circuit Judge Bye (in his dissenting opinion) claims that: a) the requirement to suggest another method poses an absurd burden on the death row inmates and; b) that even if this ‘absurd burden’ was the standard, Taylor et al were suggesting another suitable method – involving the same use of pentobarbital but, crucially, pentobarbital that had been manufactured by an FDA (Food and Drug Administration) approved compounding pharmacy and had been tested for purity, potency and contaminants.
Despite the persuasive arguments made by Taylor’s attorney, the majority of the Court found in favour of Lombardi (Director of Missouri Department of Corrections) and therefore allowed the state to press ahead with the use of Pentobarbital without specifying any further details regarding the drug. However, less than two weeks before Taylor’s scheduled execution, details of the compounding pharmacy were leaked to the press. Naturally the pharmacy was subject to negative commentary in the press and, as a result, refused to supply the Pentobarbital to Missouri D.O.C for use in Taylor’s execution. Faced with yet another delay, Missouri D.O.C managed to appropriate another quantity of Pentobarbital from a different source. Taylor’s attorney launched a new appeal on similar facts, which was swiftly dismissed by the Missouri District Court. Taylor’s attorney then proceeded to petition the Court of Appeal for a rehearing. Unfortunately the majority of the court denied the petition and Taylor was executed the very next day. Yet in his dissenting opinion, Circuit Judge Bye (whose opinion was approved by Judges Murphy and Kelly) raises some salient points.
Circuit Judge Bye claimed that from the lack of information provided by Missouri, the ‘pharmacy’ could be nothing more than a high school chemistry class. This of course, leaves open “the possibility that the ingredients do not meet legal or medical standards”. Judge Bye went even further asserting that “Missouri is actively seeking to avoid adequate testing of the alleged pentobarbital, which raises serious questions about the drug’s safety and effectiveness”. Many would agree that Judge Bye is correct to be concerned about the efficacy and safety of the pentobarbital when the manufacturing of this drug has not been approved by the FDA (Food and Drug Administration).
Additionally Judge Bye agrees with the argument put forward by Taylors’s attorney as he states: “nothing Taylor asks for would place an undue burden on Missouri. He simply seeks transparency concerning the manufacturer of the chemical used to execute a death sentence and testing of the chemical for identity, potency, purity and contamination. Considering the enormity of the issue at stake, this is a burden which is entirely due”.

It would appear then, to the casual observer, that the 8th Circuit Court of Appeal has been and continues to remain divided over how to tackle the ‘methods of execution’ question. With pharmaceutical companies and compounding pharmacies wary of the negative attention from the press, most remain reluctant to manufacture execution drugs and those that do, are determined to remain anonymous. Furthermore, considering the anti-death penalty stance of the European Union and restrictions placed on the export of execution drugs (see regulation 1352/2011) it seems likely that the ‘methods of execution’ question is likely to arise repeatedly in the foreseeable future. Of course whilst the approach of the E.U is commendable and has certainly played a part in the decision of some states to reconsider their stance on the death penalty (eg  - State of Maryland – abolished death penalty in May 2013) it may also potentially lead, albeit indirectly, to the return to less humane execution methods. Recently several senators have advocated a return to firing squads, gas chambers and electric chairs as methods to execute death sentences. No doubt, should the state choose to proceed with these methods, their constitutionality will be challenged before the courts. Rightly so, most would say.

 In conclusion one must see the Taylor decision as important for two reasons. Firstly, as described by Circuit Judge Bye, it shows a continuation of Missouri’s “storied history of ignoring death row inmates’ constitutional rights to federal review of their execution.” Yet the second reason remains the most important for it demonstrates that both the state of Missouri and the majority of the Court of Appeal (8th Circuit) maintain a dogged commitment to achieving the ends, with seemingly little regard to the means. In the light of allegedly ‘botched’ executions such as that of Dennis McGuire (executed in Ohio on January 16th 2014) the question that must be asked is simply: at what point are the means no longer justified by the ends?


Sources:

-        Re Lombardi 741 F.3d 888 C.A.8 (Mo.),2014.

-        Zink, et al. v. Lombardi, et al., No. 14-1388 (8th Cir., Feb. 25, 2014)

-        Baze .v. Rees 553 U.S 35 (2008)

-        I witnessed Ohio's execution of Dennis McGuire. What I saw was inhumane, http://www.theguardian.com/commentisfree/2014/jan/22/ohio-mcguire-execution-untested-lethal-injection-inhumane

-        The return of the firing squad? US states reconsider execution methods,
http://www.theguardian.com/world/2014/jan/28/return-firing-squad-us-states-execution-methods


-        States with and without the death penalty, http://www.deathpenaltyinfo.org/states-and-without-death-penalty