Formosa Online

A new State is (legally) born?

2010-07-23T06:36:00.004+02:00

Prelude to Independence

On 24 March 1999, bombs began raining down on Belgrade. In response to Serbia’s continued harassment and forced deportations of Kosovar Albanians, NATO commenced “Operation Allied Force”—up till then the only use of force by the coalition—to “halt the humanitarian catastrophe that was then unfolding in Kosovo”. Undoubtedly, ethnic tensions and political rivalries have been brewing in the region for the better part of the 1990s. Armed conflict broke out, drawing in actors from across the region, resulting in (alleged) horrendous atrocities committed by either side of the conflict (see: Milošević, Slobodan (IT-02-54) "Kosovo, Croatia and Bosnia" cf. Haradinaj et al. (IT-04-84)).

Aside from the legality of the controversial and ambiguous concept of “humanitarian intervention” under which the Allied Forces justified its campaign (see: Legality of the Use of Force: Serbia and Montenegro v. UK; Spain; Portugal; Netherlands; Italy; Germany; France; Canada; Belgium), Kosovo’s slow and painful road to independence began when the international community took interest… and took interest enough to take concerted action. “Pending a final settlement”, Security Council Resolution 1244 called for “substantial autonomy and self-government in Kosovo,” and the UN deployed Kosovo Peace Implementation Force (KFOR) to stabilise the region while peace talks resumed and stalled. Desginated the Special Envoy for the Future Status Process for Kosovo, former Finnish President Martti Ahtisaari concluded that “negotiations [with] potential to produce any mutually agreeable outcome on Kosovo’s status is exhausted. No amount of additional talks, whatever the format, will overcome this impasse”. Later in 2007, Ahtisaari made it unambiguously clear in a report endorsed by the UN Secretary-General that reintegration into Serbia “is not a viable option”, for “Kosovo is a unique case that demands a unique solution. It does not create a precedent for other unresolved conflicts”.

Further, Ahtisaari noted:

The time has come to resolve Kosovo’s status. Upon careful consideration of Kosovo’s recent history, the realities of Kosovo today and taking into account the negotiations with the parties, I have come to the conclusion that the only viable option for Kosovo is independence, to be supervised for an initial period by the international community.

Kosovo’s Unilateral Declaration of Independence and international response

On 17 February 2008, Kosovo formally declared itself to be “an independent and sovereign state”, and defends that its secession from Serbia is in line with the governing international law and the Ahtisaari Plan.

Since, some 69 States have recognised Kosovo, including the majority of Member States of the European Union and the United States. Major opposition to Kosovo’s declaration of independence include, Russia and China, both States struggling to safeguard their respective territorial and political integrity threatened by various secessionist movements. Serbia’s strong opposition to the “breakaway” has so far been reserved:

“from the very onset of this grave crisis, Serbia has ruled out the use of force […] Instead we have opted for a peaceful and diplomatic approach […] We have chosen to use the law”

[…] the most principled, sensible way to overcome the potentially destabilizing consequences of Kosovo’s unilateral declaration of independence is to transfer the issue from the political to the judicial arena”

On 23 September 2008, Serbia filed a request for an Advisory Opinion from the International Court of Justice on the legality of the unilateral declaration of independence, in order to:

prevent the Kosovo crisis from serving as a deeply problematic precedent in any part of the globe where secessionist ambitions are harboured […]. An advisory opinion would provide politically neutral and judicially authoritative guidance to many countries still deliberating how to approach such unilateral declarations.

While opponents cite existing Security Council Resolution 1244, which obliges the maintenance of an international and stabilizing “civil presence” in the region, as a bar on any unilateral change of the Kosovo issue, the Netherlands submitted before the Court that UN presence in Kosovo is strictly on a condition of neutrality. Therefore, a decision, especially one taken by a democratic process by the parliament of Kosovo, to reconfigure the international status of Kosovo is fully consistent with existing resolutions issued by the world’s supreme political body.

The Advisory Opinion

The question, in under twenty words, posed to the highest judiciary body of the UN system is (perhaps, deceivingly) simple:

“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

The International Court of Justice began with the issue of jurisdiction, and rightly held that the General Assembly has every authority to refer an issue to the Court for its opinion on a “legal question” even though the Security Council is already “seised of the matter”(paras. 18-25;). The General Assembly perfectly has the right to take action it so desires in response to threats to international peace and security, even if the same issue is before the Security Council (paras. 40-42).

Though an unilateral declaration of independence (UDI) is a highly political act, the Court recalled:

“[it] has repeatedly stated that the fact that a question has political aspects does not suffice to deprive it of its character as a legal question […] Whatever its political aspects, the Court cannot refuse to respond to the legal elements of a question which invites it to discharge an essentially judicial task, namely, in the present case, an assessment of an act by reference to international law. The Court has also made clear that, in determining the jurisdictional issue of whether it is confronted with a legal question, it is not concerned with the political nature of the motives which may have inspired the request or the political implications which its opinion might have (para. 27)”

Indeed, the Court found no “compelling reason” to refuse giving its opinion on the legal matter of the legality of Kosovo’s UDI under international law. That a situation is political, and that there may be political motivations behind submitting a request for an advisory opinion “are not relevant to the Court’s exercise of its discretion whether or not to respond” [para. 33]. Even if an opinion on a highly political situation “might lead to adverse political consequences” [para. 35], the Court reminds us this is not reason enough for the Court to shy away from fulfilling its duty within the UN system:

the purpose of the advisory jurisdiction is to enable organs of the United Nations and other authorized bodies to obtain opinions from the Court which will assist them in the future exercise of their functions […]as the principal judicial organ of the United Nations, has also frequently been required to consider the interpretation and legal effects of such decisions. It has done so both in the exercise of its advisory jurisdiction […] and in the exercise of its contentious jurisdiction [para. 44-46]

Regarding the scope of the question posed in the present case, the Case made it unambiguously clear:

The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. […]Accordingly, the Court does not consider that it is necessary to address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of recognition in order to answer the question put by the General Assembly [para. 51].

So was it legal or not?

Turning to the very “substance” of the request for Advisory Opinion, the Court noted that of the various UDI’s in history, some of which succeeded to create a new State, some of which failed, nothing in the:

practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence [para. 79]

In short, any entity can unilaterally declare independence under international law (cf Lotus presumption: what is not prohibited under international law is permitted), but whether the result of that declaration results in the creation of a new legal personality is another issue altogether—one which the Court does not deal with in the present opinion. The Court did differentiate between an UDI issued “just like that”, and one issued in the context of self-determination. The decolonisation period of the latter half of the 20^th Century recognised the right of “the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation” to pursue self-determination through the declaration of independence [para. 79]. The Court did not find it necessary to consider whether Kosovo’s UDI is in line with the universally recognised principle of self-determination, and therefore completely sidelined whether “the international law of self-determination [today] confers upon part of the population of an existing State a right to separate from that State” [para. 82].

Most fundamentally, does an UDI necessary impair the territorial integrity and sovereignty of an existing State—a principle which is a cornerstone of the current international legal order (Cf. UN Charter, Art2(4))? In an absolutely groundbreaking declaration, the ICJ held the principle of territorial integrity applies only and is confined only “to the sphere of relations between [existing] States” [para. 80].

Perhaps this interpretation and application of the principle of territorial integrity is restricted only to the very particular circumstances surrounding Kosovo’s UDI. Up until now, the issue of territorial integrity has indeed only been raised in contentious cases between States, in which one State alleges the other State is interfering or intervening in matters within its sovereign territory in violation of international law. However, the Court’s reasoning for its holding that the principle of territorial integrity applies horizontally between States and not vertically between a State and its component part suggests that indeed an entity can declare unilaterally independence if it wished, provided that that entity did not violate other norms of general international law. Thus,

the illegality attached to the declarations of independence [of e.g. Southern Rhodesia, Northern Cyprus, and Republika Srbska] thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens) [para. 81].

In the present situation, existing Security Council resolutions (primarily SC Res. 1244) had recognised the “grave concern at the humanitarian crisis in and around Kosovo” as part of the conflict with Serbia, the State which did in fact exercise of sovereignty over the territory of Kosovo. However, as a result of the conflict with Serbia, and the subsequent entry of peacekeeping and reconstruction forces of the international community into Kosovo, the Court held:

The interim administration in Kosovo was designed to suspend temporarily Serbia’s exercise of its authority flowing from its continuing sovereignty over the territory of Kosovo. The purpose of the legal régime established under resolution 1244 (1999) was to establish, organize and oversee the development of local institutions of self-government in Kosovo under the aegis of the interim international presence [para. 98].

This reasoning and ruling is again groundbreaking. In the current international legal order, the fictitious entity known as the “international community” is represented by the 15 (the cynic and realist would say 5) States on the Security Council. Any action taken or resolution passed by the SC is binding on all States, and trumps over all other international legal obligations [UN Charter, Art. 103]. In effect, the Court in the Kosovo Advisory Opinion pronounced that if the international community (as represented by the SC) wills it, it is perfectly legitimate for the SC to pass a resolution and carve out an enclave within any State’s territory, thereby effectively suspending that State’s sovereignty over that territory. And all other States have no right to protest or object, and must comply, and indeed, recognize the new territorial demarcation:

The Court thus concludes that the object and purpose of resolution 1244 (1999) was to establish a temporary, exceptional legal régime which, save to the extent that it expressly preserved it, superseded the Serbian legal order and which aimed at the stabilization of Kosovo, and that it was designed to do so on an interim basis [para. 100]

Of course, for all (five) members of the SC to agree on any issue is painstakingly political and slow, however, the case of Kosovo is evidence it is perfectly possible that by the passage of a resolution, Serbia’s ties with Kosovo are effectively severed and replaced. What constraints are there on the SC to undertake such a decision? What are the conditions that must be fulfilled for the SC to reach such a radical undertaking which effectively permits it (or rather, its permanent five) to break up existing States? The Court is silent on these matters.

The ICJ on The Secession of Quebec

On a side note, the ICJ in its Advisory Opinion took the opinion to differentiate the situation of Kosovo from the thorny question of the legality of Quebec seceding from the Federation of Canada. There is a subtle, but nonetheless important difference between the two cases. Before the Supreme Court of Canada, the question posed was whether the political organ(s) of a constituent part of Canada (in this case, Quebec’s National Assembly, legislature and government) has a right to unilaterally secede. In an oft criticized, and no doubt highly politicised, the Supreme Court of Canada held, on constitutional grounds that:

Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation [Secession of Quebec].

Further, in the opinion of the Canadian Supreme Court, there is no right to secession for Quebec, because it is in no way an imperial colony, which would give its people a right to self-determination; Quebec’s people are not “subject to alien subjugation, domination or exploitation”; and nor are Quebecers “denied any meaningful exercise of its right to self-determination within the state of which it forms a part.” Upholding the territorial integrity of Canada, the Supreme Court went on to declare:

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states [re Secession of Quebec].

Even so, the highest court in Canada did point out that even if there is no legal right to secession, this in no way rules out the de facto secession of Quebec, should it choose to break away from Canada. Even if Quebec should choose to secede, the success “of such a secession would be dependent on recognition by the international community”.

In the Advisory Opinion asked of the International Court of Justice, the question was whether Kosovo’s UDI was in accordance with international law:

The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it [para. 56, Kosovo Advisory Opinion]

What ends well, goes well?

So Kosovo’s UDI was in accordance with international law. But what does this mean for Kosovo, which today is still in limbo as only a third of all States in the world recognize it officially? The Court completely sidelined the (perhaps fundamental) question of pronouncing or redefining the international law on the creation and secession of a State. It also did not take the opportunity (to be fair, it did not have one, given the restrictive nature of the question before it) to clarify the law on recognition. Both statehood and recognition are still controversial, yet nonetheless fundamental questions regarding the existence of a State, and in the long run, the viability of a State to exist. After all, despite the ongoing trend of ‘globalization’ and formation of ever powerful regional actors on the international arena, the State is still sovereign, and the State is still the object of and subject to international law.

The Court did not address whether in the 21^st Century, a time when much of the world’s territory has already been carved up between and incorporated into the territorial and political integrity of existing members of the international community of States, whether it is legitimate to secession is ever legitimate under international law. The Advisory Opinion, restricted by the scope of the question posed, does not address the future of Kosovo, however it does offer an inking of hope to for independence-minded movements and peoples. The Court has reached the conclusion that a unilateral declaration of independence is possible, is not prohibited under international law—as long as the declaration is not coupled with actions which violate norms of international law (eg. use of force).

Nothing much may change after the 15 judges sitting in the Great Hall of Justice in The Hague deliver their collective advisory opinion, and separate and/or dissenting opinions. Six years after declaring that the “Wall” in the Occupied Palestinian Territories is illegal and severely contravenes international humanitarian law and the right of the Palestinians to self-determination, the Wall still stands. It may have been gratified, defaced, cursed and condemned. But The Wall still stands, defiant as ever, a symbolic mockery and evidence of international law’s inability to reconcile with or force its weight on the hard realities of politics.

The Court has however provided the irrefutable confirmation that Kosovo’s UDI did not violate international law (in fact, there was no law to violate in the first place!) Whether Kosovo will continue to exist and continue to function as a State depends entirely on the response of other members of the international community to the Advisory Opinion and toward Kosovo. For the bizarre nature of the international legal system is such that for a State to exist and to properly function, it requires the recognition and support of existing States, or at least of “States that matter”. The recognition of statehood is of great importance, because the existence or the lack of such recognition will dictate whether the entity is deserving of the full protection, privileges and entitlements available in this state-centric world, regardless of whether that world is viewed through legal or political lenses. Recognition is not a legal obligation, and neither is it a legal right. Therefore, it is unfortunately often hijacked by political interests and objectively granted or withdrawn to serve and preserve status quos and political realities (of primarily the ‘superpowers’.

While many see the Opinion as a legal “rite of passage” or “christening” (albeit much of Kosovo’s population are Muslims) as a new State, Kosovo’s fate has more or less been decided last after its UDI on 17 February 2008. With the backing of the United States and a majority of European States, Kosovo has enough recognition and backing to function on the international arena. Further, Kosovo’s admission to various international organisations under an independent name and as an independent entity will further aid its road to becoming a fully fledged and fully functioning member of the community of States.

Kosovo, after so many years of suffering and struggles, has finally become free and independent. And the Court’s Advisory Opinion today marks another step in this process. There is reason to be proud, reason to celebrate, reason to treasure the dignity and privilege of sitting at world meetings as an equal member of the international community. For not all States aspiring to be States can become a State.

Enough is enough!

2007-08-08T21:36:00.000+02:00

Six months ago, he said that those Muslims who want to stay in the country must “rip out and throw away half of the Quran ”. Today, in an opinion piece in a Dutch newspaper, he went further:

Enough is enough. Let us stop beating about the bush with political correctness. […] The core of the problem is fascistic Islam, the sick ideology of Allah and Mohammed as laid down in the Islamic Mein Kampf: the Quran. The texts from the Quran do not leave much to the imagination.

In different Suras, Muslims are called upon to suppress, persecute or kill Jews, Christians, believers of other faiths and non-believers, to hit women, and to rape, and to establish a worldwide Islamic state with violence. Suras call upon and instigate Muslims to death and destruction.

Ban that book like Mein Kampf is also banned. […]

How ashamed I am for the Dutch politicians. Their naivety and sickly strive towards the utopian moderate Islam, which will only bring our country hell and doom. How ashamed I am of those in and outside of the Cabinet and Parliament, who refuse to stop the Islamic invasion of the Netherlands. […]

The Hague is full of cowardly people. Scared people who are born cowardly and will die cowardly. Who believe and advocate that Dutch culture will be founded on a Judeo-Christian-Islamic tradition. […] Who [ignore] the interests Dutch population and cooperate in the transformation of the Netherlands into a Netherarabia as a province of the Islamic superstate of Eurabia.

I have had enough of Islam in the Netherlands: no more Muslim immigrant. I have enough with the worship of Allah and Mohammed in the Netherlands: no more mosque. I have had enough of the Quaran in the Netherlands: ban that fascistic book.

Enough is enough.

Strong words. Provocative words. Insane words from a raving Parliamentarian with a great big shock of dyed blond hair called Geert Wilders. He and his Part for Freedom (Partij voor de Vrijheid) managed to gain 9 seats in the last elections with (most notably) calls for a complete stop to immigration and the rooting out of Islamic elements in the country. To him the cause of crime and nuisance is Moroccan and Turkish “street-terrorists” who behave and think in ways that are at odds with Western ideas of liberalism democracy. Whether on the issue of treatment of women, homosexuals or fundaments of democracy, his warned that “tsuanami of Islamisation” is beginning to swamp the Netherlands and before you know it this will be a country governed by oppressive Sharia law. We must firmly reassert “the dominant Dutch culture”, he says, and no more mosques should be build, because he claims he’s “going crazy with all those mosques”.

Crazy indeed, but was he ever sane? All this preaching and threatening tones about Islamic radicalisation and creeping fundamentalism doesn’t help at all to the growing misunderstanding and divide between large segments of Dutch society. Instead, Wilders’ cheap rhetoric echoes those tried and failed populist insinuations and stereotyping that stirred the entire country when Fortuyn-fever swept through the country a few years ago. Two high profile politically motivated murders, a heightened state of alert, and a continuing wave of Islam-phobia later, and Wilders still wants to provoke and beat the already battered corpse of xenophobia and feelings of them-against-us.

Funny thing is, within the last six months the contents of the Quaran has not changed at all. If anything changed, it’s Mr. Wilders, who has become the very hardened extremist and militant raving village lunatic that he has been warning people will ‘invade’ this country and lead us all to ‘death and destruction’.

The Quran is but a book, a holy book with special meaning to over one million Muslims in the Netherlands. Admittedly, it does contain passages and words that are incongruent with this age and place, but it is not the book that kills and radicalizes. People kill and radicalise, people commit murders and rapes and incite hatred and others towards violence and revenge. It is people who hijack the Quaran, just as people have hijacked the holy Bible or Tora or any other religious text, to justify actions that defy all the teachings of love and compassion contained in the same books all in the name of ‘religion’.

Wilders’ allusion to Mein Kampf is telling. Some sixty odd years, millions of deaths and untold suffering caused by that infamous book penned by Hitler later, Wilders wants to ban a book in a free and democratic society where the freedom of press and belief are fundamental rights of every citizen regardless of race or creed. Who is the fascist now?

Thank goodness no else one in Parliament supports Wilders and his rants, and already a civil suit has been filed against Wilders for inciting hatred between racial groups.

Wilders was right about one thing though…

“Enough is enough”!

"One World, Different Dreams"

2007-08-07T21:57:00.000+02:00

Six foreign activists unfurled a banner on the Great Wall of China today. Scribbled on it was the official slogan of the 2008 Beijing Olympics: “One world, one dream”. Celebrating the one year countdown to the greatest sporting event in the world perhaps? Underneath, the words “Free Tibet” on the same banner was less cause for celebration. The group of six has been detained, and their fates are unknown.

In 2001, there was much commotion when the Olympic Games were awarded to Beijing by the slimmest of votes by the International Olympic Committee (IOC). This self-proclaimed “non-profit organisation” decides who gets the Olympic honour in secret ballots, and has been trying hard to salvage its tainted reputation of being a corrupt club of self-serving internationalists. The Beijing decision did not help improve its image.

Critics cried foul and disbelief, when the Chinese capital triumphed over Toronto, Paris, and even Osaka—which was deemed one of the most hospitable cities in Asia. But rest assured, the IOC said. It will be a clean game, and it will bring great changes to China. To placate those critics who point to China’s poor human rights record, the IOC was adamant that the Games would bring the world to China, and China to the world, and in doing so put pressure on the regime to liberalise. Deals were struck with the regime to allow unprecedented press freedom to foreign journalists in this infamously repressive state, where news is known to be government propaganda and strictly censored.

Thus the Olympic dream began. In the past few years magnificent architecture and landscapes have been erected from the ground up. There is no doubt preparations is right on target to deliver what has been promised the most spectacular Games in history. To borrow those wise words of Chairman Mao, the opportunity to host the Olympics is perhaps the ultimate symbolism showing the rest of the world that China has finally “stood up”. The slogan “One world, one dream” is supposed to capture the spirit of “a great nation, with a long history of 5,000 years and on its way towards modernization, that is committed to peaceful development, harmonious society and people's happiness”. Applaud here.

But the nightmares of human rights and other abuses are far from having ended. A former UNICEF spokesperson and Hollywood began a campaign to dub the 2008 Games “Genocide Olympics”, in the face of China’s continuing financial and armaments support of Sudanese government:

That nightmare is Darfur, where more than 400,000 people have been killed and more than two-and-a-half million driven from flaming villages by the Chinese-backed government of Sudan.
That so many corporate sponsors want the world to look away from that atrocity during the games is bad enough. But equally disappointing is the decision of artists like director Steven Spielberg — who quietly visited China this month as he prepares to help stage the Olympic ceremonies — to sanitize Beijing's image. Is Mr. Spielberg, who in 1994 founded the Shoah Foundation to record the testimony of survivors of the holocaust, aware that China is bankrolling Darfur's genocide?
[…] Whether that opportunity goes unexploited lies in the hands of the high-profile supporters of these Olympic Games. Corporate sponsors like Johnson & Johnson, Coca-Cola, General Electric and McDonalds, and key collaborators like Mr. Spielberg, should be put on notice. For there is another slogan afoot, one that is fast becoming viral amongst advocacy groups; rather than "One World, One Dream," people are beginning to speak of the coming "Genocide Olympics."
Does Mr. Spielberg really want to go down in history as the Leni Riefenstahl of the Beijing Games? Do the various television sponsors around the world want to share in that shame? Because they will. Unless, of course, all of them add their singularly well-positioned voices to the growing calls for Chinese action to end the slaughter in Darfur.

Despite assertions by the Beijing Organizing Committee that the foreign press is being
“treated kindly”, Reporters without Borders begs to differ:

The Chinese authorities promised the IOC and international community concrete improvements in human rights in order to win the 2008 Olympics for Beijing. But they changed their tone after getting what they wanted. For example, then deputy Prime Minister Li Lanqing said, four days after the IOC vote in 2001, that “China’s Olympic victory” should encourage the country to maintain its “healthy life” by combatting such problems as the Falungong spiritual movement, which had “stirred up violent crime.” Several thousands of Falungong followers have been jailed since the movement was banned and at least 100 have died in detention.
A short while later, it was the turn of then Vice-President Hu Jintao (now president) to argue that after the Beijing “triumph,” it was “crucial to fight without equivocation against the separatist forces orchestrated by the Dalai Lama and the world’s anti-China forces.” In the west of the country, where there is a sizeable Muslim minority, the authorities in Xinjiang province executed Uyghurs for “separatism.” Finally, the police and judicial authorities were given orders to pursue the “Hit Hard” campaign against crime. Every year, several thousand Chinese are executed in public, often in stadiums, by means of a bullet in the back of the neck or lethal injection.

And so does the Committee to Protect Journalists, which warned of a

[…] yawning gap between China’s poor press freedom record and the promises made in 2001 when Beijing was awarded the Olympic Games. The International Olympic Committee awarded the 2008 Games to the Chinese capital based on assurances that authorities would allow the media “complete freedom,” and that they would apply “no restrictions” to coverage. While the government has eased some travel and interview rules that apply to foreign journalists, it continues to impose severe constraints on the domestic press. Chinese journalists are in jail. Vast censorship rules are in place. Harassment, attacks, and threats occur with impunity. China has fallen short thus far in its pledge to the international community.

To echo this, Amnesty International reports:

growing crackdown on Chinese human rights activists and journalists as well as the continued use of ‘Re-education through Labour’ (RTL) and other forms of detention without trial. Official statements suggest that the Olympics are being used to justify such repression in the name of ‘harmony’ or ‘social stability’ rather than acting as a catalyst for reform. […] the image of the Olympics continues to be being tarnished by ongoing reports of the ‘house arrest’, torture or unfair trial of Chinese activists and the extension of systems for detention without trial in Beijing as part of the city’s ‘clean-up’ ahead of August 2008. If the authorities fail to take significant action to reform such practices, reports of abuses are likely to increase as the Olympics approach with adverse publicity potentially affecting not only China, but other stakeholders in the Olympic movement, including the International Olympic Committee (IOC) and the corporate sponsors of the Games.

And so does Human Rights Watch, which wrote:

On paper, the temporary regulations appear to free foreign correspondents from a decades-old regulatory handcuff of time-consuming and rarely granted foreign ministry approval for interviews and reporting trips o[…]. However, the new latitude granted by the temporary regulations is conditioned on being “in conformity with Chinese laws and regulations.” This is problematic, as many Chinese laws and regulations limit free expression. The continuing applicability of these other laws and regulations and the lack of independence of the judiciary limit the chances that the temporary regulations will be enforced, or enforceable.

[…]In addition, foreign journalists must still apply for rarely-granted official permits for reporting visits to Tibet. Worse, many say that they are often harassed, detained, and intimidated by government and state security officials in the course of their reporting activities. More disturbingly, such treatment is increasingly being meted out by threatening and occasionally violent groups whom journalists often suspect to be plainclothes police personnel […]

Human Rights in China wrote that the Chinese regime is (ab)using the Olympics to package and advertise its strengths and overshadow its failings. Stories are being revealed of small children driven to the brink all in the name of “Honour for the Nation”. Further, news reports that have leaked out of the country report that Olympic merchandise are being produced by child labour. Whereas big multinationals stand to reap billions in profits from selling their shoes, clothes, puppets and pens at exuberant prices, workers are being forced to work long hours in poor conditions:

Yet the Olympics movement, particularly the International Olympics Committee, has refused to acknowledge that labour violations in their supply chain exist, and that they need to take responsibility to create an ethical marketing and licensing program in the face of these contraventions. […] Even though the IOC Code of Ethics stating clearly that “The Olympic parties must not be involved with firms or persons whose activity is inconsistent with the principles set out in the Olympic Charter”, the IOC refuses to accept responsibility for even the most minimum adherence to basic labour standards in the production and sportswear bearing the Olympic Games logo. […] The IOC has consistently favoured an approach of denial and rebuttal of claims that it address the need for oversight and responsibility in the production of Olympic logo goods.

And yet, despite all these well-founded criticisms and misgivings, the IOC President just yesterday praised Beijing for its “excellent work”. “One world, one dream”, indeed.

Ironic. The UK (and others) can proudly announce their intention to boycott sports competitions in Zimbabwe, yet when it comes to China, a regime perhaps just as, if not more, oppressive and obnoxious, they welcome it with open arms. What kind of signal did the IOC want to send to similarly brutal governments out there when it gave China the gift of the Olympics? That it’s alright to torture your own people, and send them into gulags where they slave away manufacturing cheap goods? That it’s alright to stifle dissent and arbitrarily detain opposition, and to censor the internet and all negative news about the country? And that’s it’s perfectly alright to invade Tibet and destroy the last vestiges of that country’s cultural and religious heritage? Or perhaps the IOC wanted to condone China with its continuous war-mongering and warnings of invading Taiwan?

Whatever the message, whatever the motivation or incentive, in a year’s time fanfare and fireworks will fly over Beijing, as the city, and the country, proudly invites the world to see. See the proud achievements and progress it has made in recent years, see the beauty and magnificence of this up-and-coming economic and political dragon that has now reawakened, and see how civilised people have become through the ‘no spitting’ campaigns.

But there are things that the regime does not want you to see… people who have been forcibly rounded up and sent away to make room for the Olympic dream, the people who spoke out too loudly and are now being persecuted in prison… and those resisting in silence of one day seeing their own country freed from occupation and intimidation.

Look.

And you will see.

More cartoons here.

"Taiwan applies for UN membership"

2007-07-28T21:55:00.000+02:00

I've not written about politics for a while, partly because I've had so much other things to do, but this is one issue that really gets to me.

It may be boring, but this is something I'm been reading and writing about since I was young:
the issue of Taiwan! I was born there, and even though I only lived there a few years, I still few somewhat connected to that country. Basically, despite the fact it's a fully functioning country in every way possible, it is not recognised by most states in the world as a state. So it is not allowed to join the UN or any international organisation in which Statehood is a requirement.
A gross violation of international law and denial of the rights of the people of Taiwan to representation and security.

The following are things I wrote a few days ago and published elsewhere:

You may or may not (probably the latter) have seen this headline on BBC News a few days ago.

Poor little Taiwan knocking at the doors of the UN once again, and most certainly will be turned away and ignored like the international pariah it is. It's not the first time, and definitely will not be the last. With China wielding the veto power on the Security Council, and insisting that Taiwan is "an inalienable part of the motherland", chances of China ever approving Taiwan's membership is less than nihil.

By any objective standard, Taiwan is a sovereign and independent State, with a properly functioning government, 23 million inhabitants, identifiable territory, and also has the ability to engage in international relations. It is probably the most democratic and politically stable country in Asia, supported by a thriving economy and society. But, alas, it is openly shunned by the rest of the world like the plague, all because of China's propaganda and war mongering.

There are States ripped by turmoil and in which the government have ceased to exist, but they are still part of the family of States and recognised as such. Then there are oppressively authoritarian States that trample on basic human rights and intimidate its own population, but they are part of the UN. And then there are those 'evil' rogue States that flagrantly disregard international law, and even braver others that cause despicable humanitarian tragedies, and yes, they too are part of the UN. Taiwan is none of the above, but cannot even take part in the most basic international conference on matters of universal concern, like human health or the environment, because it is not recognised as a State. The irony.

One reason I study law because I was fascinated with its ability to defend the weak and restrain the strong in a world too often corrupted by the dictates of power and politics. Law’s power lies in its ability to speak back to power. Law’s authority lies in its, certainty, coherence and objectivity; in its ability to be blind and dispense justice on the scales of common morality and in the defence of human dignity.

Or at least in theory. And no where else is it more evident in the international arena. All States are equal, they say, but some more so than others. That is, if you are recognised as a State. If you are not, you are alone and isolated in this so-called international community that preaches equality, justice and universalism, but cowers in the face of hegemony and bullying tactics. Such is the sorry state of the world today.

Below is an excerpt from a paper I wrote at SOAS about the issue of recognition of States under public international law, with a special focus on the question of recognition of Taiwan:

That the proposed idea of recognition of statehood has moved from a constitutive to a declaratory view should, in the light of the Taiwan experience, be reassessed. Taiwan proves the effectiveness, legitimacy or even pragmatic tests for statehood are irrelevant. Instead, the current international order is dominated by an oligopoly of powerful states who can dictate, like the European colonial powers in the 19th Century did, who is allowed to belong and what is to be deemed a state, according to their interests and convenience.

International law revolves around states. A state may exist, and may be able and willing to shoulder all the rights and duties bound on members of the community of states, but the ultimate test of full subject-status under international law rests on its recognition by existing (superpower) states. The situation surrounding Taiwan's statehood offers an interesting overlap between the dominant realities of the ability of international politics to dictate international law, and the idealistic norms underpinned by human rights and peace that international law aims to pursue despite inhibitions from international politics.

Recognition is not a legal obligation, therefore it is often hijacked by political interests and objectively granted or withdrawn to serve certain, mostly that of big powers', status quos and realities. Taiwan’s relationship with its international counterparts is "fraught with ellipsis, indirect statements, and hidden meanings" . Though the international community has argued that the issue of Taiwan and its legal status should be up to China and Taiwan to decide, the nature of the question in straddling so many issues of international rights and duties and the potential impacts on world peace and stability, makes the issue one that is of the international community's concern and need for mediation.

The recognition of statehood is of great importance, because the existence or the lack of such recognition will dictate whether the candidate is deserving of the full protection, privileges and entitlements available in this state-centric world, regardless of whether that world is viewed through legal or political lenses. Exactly because recognition is such an important aspect of existence in the international community, it is also the most controversial, and one in which law and politics often intertwine.

And today I wrote this, after the UN rejected Taiwan's application for membership... again!

A letter was filed by President Chen Shui-bian of Taiwan on the 19th of July, directed at UN Secretary-General Ban Ki Moon. In it, Chen formally applied for Taiwan’s UN membership in accordance with the rules and procedure as laid out under the Charter.

Five days later, President Chen’s letter is returned by the UN Office of Legal Affairs, and the application for membership outrightly rejected. A short statement was issued, rejecting the application. I tried to find the original statement, but it is no where to be found, and believe me I’ve searched in all over the UN website. Like the complete and utter denial of its existence in the world, no hits contain the word ‘Taiwan’.

So, according to news reports, the application for membership was rejected on the basis of GA Resolution 2758 (XXVI), entitled ‘Restoration of the lawful rights of the People’s Republic of China in the United Nations’. That resolution was adopted in 1971, after the UN decided that:

“to restore all its rights to the People's Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it”.

Here is the joke behind this resolution.

When the UN was established, the war-ally and Chinese dictator Chiang Kai-Shek was allowed to sit alongside the big powers and take China’s seat in the organisation. Years before, his regime fled China to take refuge in Taiwan when the Communists triumphed and took control of China. Cold War politics, and unquestioning US support meant that Chiang’s regime was able to illegally conquer Taiwan and oppress its inhabitants, while at the same time claim that it effectively controlled over the hundreds of millions of Chinese from the tiny island of Taiwan. This pipe-dream and fantasy was able to flourish for some 26 years, while the Communist regime in Beijing was shunned aside and treated as persona non grata.

After almost three decades of political wrangling and protests, spearheaded by the Soviet Union, the UN finally realised it was unrealistic that the Chiang regime ever represented China.

Hence Resolution 2758—an infamous resolution that effectively admitted that for so many decades the UN had been so blind and foolish, and allowed itself to be so politically manipulated and deceived to have Chiang Kai-Shek and his cronies unlawfully occupy China’s seat in the UN.

Goodbye Chiang…

But what does this have to do with Taiwan? Nothing. Nothing at all. All Resolution 2758 did was restore the rightful and legitimate seat of the People’s Republic of China, period. There was complete silence regarding the status of Taiwan and to whom the territory belonged to. And this silence has existed since the end of World War II, when Taiwan was put under temporary control of the Allied Forces. The US and UK at the time had publicly declared that the status of this one-time Japanese colony was “undetermined”. The status of the island, and future of its people, had to be decided eventually at a peace conference or within the UN system. But that was that. All talk.

When China rightfully assumed its place in the UN, it reiterated and continues to reiterate that Taiwan is part of China. It makes claims on the basis of the historical, cultural, linguistic bonds between China and Taiwan, but none of it is founded in law or reality. Any attempt to bring the issue of Taiwan to discussion is met with stiff opposition or the veto.

The truth is China does not have any legal title to claim sovereignty over the territory of Taiwan. Nor does China have any control, effective or otherwise, over the territory and its 23 million people. If it did, it would not have to constantly threaten invasion and war, because it could just legitimately march in, hoist its red flag and establish its dictatorial regime there, and no one would protest. If China did control and legitimately own Taiwan, it would not have to constantly warn of economic retaliation and other “severe consequences” whenever other States deal with Taiwan.

So why was the application for membership in the UN rejected on the basis of Resolution 2758? A completely flawed argument lacking in any basis or reason. Just like that, dismissed without any discussion or whatsoever in the General Assembly or the Security Council, as is required by law under the UN Charter (Art. 4(2)). I’d not be surprised if Mr Ban was somehow pressured (or bribed) by China to dismiss the application as soon as it was filed. And this coming directly from the UN’s Office of Legal Affairs.

States like Tuvalu, with its meagre 10,000 people, and States like North Korea, with its open defiance of international norms, can all become and stay members of the UN. Yet, a country like Taiwan, with more a larger population than two-thirds of UN members, is barred time and again due to such inexcusable manipulations of the law. Those judges in the Admissions Case, who unequivocally and overwhelming held that admission into the world’s primary universal organisation cannot “juridically” be “dependent on conditions not expressly provided by Article 4(1)” of the Charter must be spinning in their graves.

I leave you with the words from the original application filed by Mr Chen… despite the invocation of the ‘international community’ (which as you know I loathe), they speak more than I, or justice, ever could.

“The international community of today chooses to disregard the efforts of Taiwan's 23 million people in their pursuit of dignity and peace. It would rather ask a country that advocates the universal values of freedom, democracy, human rights, and peace to submissively remain silent when its identity is denied and security threatened. Whereas globalization draws nations and peoples around the world closer under shared interests and concerns, the United Nations has long excluded Taiwan from participation, erecting a wall against it and placing it in political apartheid. Such unfair treatment towards Taiwan is incomprehensible and unbearable.

The people living on the beautiful land of Taiwan desire their nation to become a member of the international community and make greater contributions to world peace and prosperity. I, as President, have been given a mandate by the people of Taiwan, and therefore have the responsibility to see realized their aspirations. Participation in the United Nations is a fundamental right of the people of Taiwan. The absence of Taiwan in the United Nations creates a gap in the global network for cooperation, goes against the ideals and notion of justice upheld by the United Nations, and moreover is ironic in light of the UN's principle of universality”.

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To find out more, read this.

And here's a video clip by the Taiwanese heavy metal group ChthoniC...
I'm not normally a fan of this type of music, but the music and lyrics does say a lot about Taiwan's international isolation in the world today...

UNlimited TAIWAN Short Film (Not Music Video)

Aan mijn Profiel Toevoegen | Meer Video's

OK!!!
I'll stop here before you fall asleep.... if you're still awake!

'International Law and Society between Civilisation and Liberalism'

2007-03-23T00:38:00.000+01:00

Here's a paper I'm pretty proud of having written for one of my courses at uni.

Basic argument is that international law, in the past and today, is largely, whether consciously or not, a Euro-/West-centric conception. In the past international law grew out of the system of European states, aiming to regulate and facilitate relations between imperial powers as they extended their power, influence and territories to the rest of the world. Standards of civilisation were used to differentiate between those in the so-called international society, and those without. Today, similar standards are still in place, under a different label.

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Introduction

International law undoubtedly found its roots in Europe,^{^[1]} but is nowadays purportedly universally accepted and applicable. The expansion of international law, as a concept and institution, has commonly been traced to the age of 19^th Century colonialism, during which European powers used the standards of ‘civilisation’ as a means to ensure the international “society was built in their image”.^{^[2]} Decolonisation ended imperialism, yet states today are increasingly subject to standards of liberal humanitarian and economic determinism, which too have their roots in Europe, if not the West. Has international law, today really departed from the past? A critical appraisal of international law, and the overarching idea behind international society, is necessary to assess whether international legal scholars(ship) have moved beyond the role of “hopeless apologists of empire”,^{^[3]} both in the past and present.^{^[4]}

Classical International Society

The existence of an international society, according to Gong, requires “common interests and values, commonly binding rules and common institutions”.^{^[5]} While the existence of a society is more “a theoretical construct or explanation […] rather than [an] existent reality”,^{^[6]} it is undoubted that in terms of political and legal history common interests and values historically have bound European states together more stronger and longer than elsewhere. Not only is there a common heritage of Christianity within Europe,^{^[7]} the common experience of liberal Enlightenment, together with the French and Industrial Revolutions shaped the political, social, and economic foundations of European society. In terms of legal heritage, 1648 is commonly seen as the groundbreaking year in which Christian sovereigns established, and mutually recognised, the non-violability of sovereignty,^{^[8]} to the extent that one can speak of the beginnings of a ‘droit public de l’Europe’.^{^[9]} These principles are nowadays recognised as the cornerstones of international law.^{^[10]}

How did a European conception of ‘international society’ upheld by a system of European public law become the tenets of international law today? The origins of this development can be paralleled to the expansion of the European state-based system of international relations into the non-European world.^{^[11]} Colonial expansion took place simultaneously with the expansion of European political and legal influence.^{^[12]} Certain “common interests and values”—necessary for the existence of an international society— were coined in the notion of European ‘civilisation’, and exported in “a purportedly legal way”^{^[13]} beyond Europe’s boundaries. Civilisation was “used to distinguish those that belong to a particular society from those that do not”,^{^[14]} with which self-perceiving ‘civilised’ states subjectively categorised non-European countries into “‘civilized’, barbarous and savage spheres”.^{^[15]} Civilisation evolved to become a “fairly blunt legal instrument”^{^[16]} utilised by European states to accord “international legal rights and capacities” to non-European countries deemed to have achieved the same degree of ‘civilisation’ as themselves—and there were not many.^{^[17]} Unequal treaties and the extensive system of Capitulations were imposed on non-Europeans in what can be seen as the first globalisation of European legal standards and norms. Further, civilisation was used as a justification for intervention in non-European countries to—more often than not— forcibly impose Eurocentric conceptions of individual freedom and humanity which were products of European liberal Enlightenment.^{^[18]}

International law thereby became an “integral factor” in securing self-proclaimed “universalist aspirations” to mask territorial and economic ambitions of European states.^{^[19]} Thus, though the core notions of sovereignty, territorial inviolability, non-interference, and the mutual recognition of and adherence to these notions by states in the international legal order were developed by European states, they had no application vis-à-vis non-Europeans; at least not until the latter became recognised as ‘civilised’ enough to be part of the ‘international society’. Though international law spread to the rest of the world, there was no real ‘universalisation’ of the notion of international society, or international law.^{^[20]} Instead, international law merely provided a “critical conduit” to regulate the interactions between the West and ‘the rest’ “along the lines prescribed by the Western standard of civilization”.^{^[21]} Due to international law’s strong links with the European colonial past, it allowed “dominant states to project their visions of world order into the future”.^{^[22]}

UN-iversalisation?

The idea of ‘civilisation’ is undoubtedly contrary to the fundamental notion of modern international law, which is posited on the mutually reinforcing notions of sovereign equality and non-independence.^{^[23]} In the 19^th Century, it was the European powers who alone determined whether non-European countries were their equals under their characterisation of ‘international society’. From this grew the origins of constitutive recognition,^{^[24]} which resembled a ‘christening’ procedure by which existing members of the international society selectively designated those they deem suitable to join the “exclusive club” of sovereign states.^{^[25]}

The use of civilisation to determine who belongs in international society “softened”^{^[26]} with the advance of international institutions like the League of Nations. The 1933 Montevideo Convention codified the declaratory recognition of statehood,which governs that states exist in fact once having satisfied certain objective criteria of statehood,^{^[27]} without regard to their internal organisation of government or their ‘liberal-ness’. With the inauguration of the United Nations, this trend apparently continued.^{^[28]} The Admissions Case affirmed that admission into the world’s primary universal organisation cannot “juridically” be “dependent on conditions not expressly provided by Article 4(1)” of the Charter.^{^[29]}

Though the World Wars altered the domination of European states in favour of the United States, the underlying norms and values of international society as projected and protected by international law did not alter. European became Western, and the League and its successor UN, as ostensibly ‘universal’ organisations continued, consciously or otherwise, the “universalizing mission of international law”^{^[30]} began in 19^th Century. Most telling evidence of this can be found in the Mandate—later Trusteeship— System, which “did not outlaw colonialism or any of its creations”,^{^[31]} but instead entrenched it in more formal and legalistic terms.^{^[32]} Non-Western countries “not yet able to stand by themselves” were put under the “sacred trust of civilization”.^{^[33]} Again, this explicit reappearance of ‘civilisation’ justified the encorachment of Western influence over non-European peoples on their progress toward eventual self-determination. Account was to be taken of the “stage of the development of the people”,^{^[34]} reminiscent of the way European categorised the non-Europeans into different spheres of civilisation.^{^[35]} Again, it was the European mandator/trustor who decided when this level of ‘civilisation’ had been achieved so that the non-European country could join the ‘family of nations’. Yet another telling way ‘international society’ is characterised by a Eurocentric/Westerncentric conception of ‘we-ness’ can still be found under the Statute of the International Court of Justice, which denotes the “general principles of law recognized by civilized nations” as a source of international law.^{^[36]}

Many welcomed the decade(s) of de-colonisation was a breakthrough, as newly independent states mushroomed to truly become more representative of the historical, national, political and cultural diversities of the world.^{^[37]} Though decolonisation seemed to have granted newly independent states “their rightful place as equal members of the international society”,^{^[38]} in truth the victory over Western supremacy was short lived.^{^[39]} The system of international law, with its emphasis on the state and sovereignty as originally defined and demarcated by Western states, was embraced by non-Western states “whole-heartedly”.^{^[40]} Previous colonial boundaries were accepted, whereby the state, with its Eurocentric roots of conception and creation, was “effectively universalized […] as the only form of government that would provide equal status in the organized international community”.^{^[41]}

Turning to the issue of statehood, the objective Montevideo criteria and Advisory Opinion regarding membership of the UN was gradually abandoned. Recent practice shows an increasing burden on the state, and the government that controls it, to prove itself worthy of fulfilling the obligations bound on states in the international community.^{^[42]} Recognition of former Soviet Bloc states by European states required the former to respect liberal humanitarian norms of human rights and rights to self-determination.^{^[43]} Similarly, accession agreements condition aspiring members to the European Union to subscribe to “democracy, the rule of law, human rights and respect for and protection of minorities, [and] the existence of a functioning market economy”.^{^[44]} In external relations, non-European states are legally obliged to subscribe to similar liberal humanitarian norms.^{^[45]} These criteria for recognition, and membership of the Union, are grounded in such liberal language and values that suggest a return to the standards of ‘civilisation’ previously espoused by European powers.

Civilisation today: Liberal International Law

Fidler draws striking parallels between the system of Capitulations in the 19^th Century and the structural adjustment programmes advocated by the World Bank and the International Monetary Fund. He argues convincingly that by the late 20^th Century a “liberal, globalized civilisation” (‘Washington Consensus’) had replaced its predecessor’s mechanism in producing a “pro-Western form of legal harmonization”.^{^[46]} Other scholars go further, and argue that the ‘Washington Consensus’, with its conditionalities and degrees of conformity to ‘good governance’ and commitment to democracy, is “the contemporary successor of the Mandate System”.^{^[47]} The globalisation of Eurocentric/Westerncentric legal standards and norms has thus returned.

Indeed, though notions like ‘human rights’,^{^[48]} ‘good governance’ and ‘rule of law’, may appear neutral, and some argue universal, they are however reflective of “liberal hegemony in international legal thinking”.^{^[49]} Prominent liberal international legal scholars like Slaughter would suggest that “liberal international relations theory”, with its emphasis on individual freedoms, free markets and acceptance of democratic values, nowadays “applies to all States”,^{^[50]} in that nowadays international society is regulated by international law “as dictated by the ideological and structural principles of a liberal state”.^{^[51]} She is supported by Franck who postulates that democratic governance is the sine qua non standard in the “new global climate”.^{^[52]}

It is such a perspective of a “millenist, triumphalist, upbeat”^{^[53]} liberal international society that again echoes concerns of a return of standards of civilisation.^{^[54]} Indeed, a “facile universalism”^{^[55]} of standards in the international system overshadows the political, economic, social and historical idiosyncrasies of our “multicultural (as opposed to cosmopolitan)” international society.^{^[56]} Again, like when international law was used in the 19^th Century to differentiate between the ‘we’— who conform to European liberal standards of civilisation—and ‘others’—who do not—today we see a similarly profound notion of ‘international’ political and economic liberalism which is separating the world into a ‘zone of liberal peace’ and a ‘zone of war’.^{^[57]} If necessary, liberal states see a duty to intervene to bring about democratic change,^{^[58]} or protect ‘humanitarian’ values,^{^[59]} purportedly in the name of the ‘general will’, and in flagrant violation of state sovereignty. Such an (ab)use of international law serves to perpetuate the reality that international law’s identification with certain interests and values^{^[60]} in fact does not universalise, but instead divide, the international society of states.^{^[61]}

Conclusion

International society posits a commonality of values and interest, but in truth has been, and is still being, promulgated as an irresistible and all-embracing reality.^{^[62]} It is in fact an “ambiguous, euphemistic and somewhat misleading”^{^[63]} concept that masks the way non-European states have been made to accept European/Western standards to be part of the society.^{^[64]} International law’s self-proclaimed “intent on […] promoting global equality and justice”^{^[65]} makes it “indissociable from the wider narrative of a liberal internationalism that thinks itself as the ‘legal conscience of the civilized world’ ”.^{^[66]} The supremacy of European/Western powers allowed the political idea of an international society underwritten by the notion of ‘civilisation’ to be propagated around the world. International law, originally the law governing European sovereigns, was used as a mechanism to justify imperial expansion, first in the scramble for territories, and later entrenched in the ‘family of nations’ under the League and United Nations systems. Though decolonisation may have revolutionised the concept of international society by making it more inclusive, the (re)birth of inherently liberal principles like human rights, good governance and free-marketism can be said to replace the hegemony of imperial times in purportedly universal and neutral terms.^{^[67]} International law resting on notions of sovereign equality, independence and non-interference has been advanced as something “good and desirably”.^{^[68]} It is this same international law that is said to legitimately protect and further certain general interests of the international society.^{^[69]} However, these basic tenets of the international legal order may, as critically set out above, be apologetic of the history of European legal and political expansion. Today, admitted in different terms but nonetheless along the same tradition of universal humanism and liberalism, the civilising mission is still alive, and actively pursued as the law that is universally welcomed and applicable.

Critiques aside, what alternative to the current international legal order, and the international society it upholds, is there? Undoubtedly, it is unrealistic, impractical, and perhaps even impossible, to dramatically overhaul the system.^{^[70]} But as international lawyers committed to building and defending the international against scepticism,^{^[71]} we need to be aware of, and sensitive to, international law’s flaws and its Eurocentric historical underpinnings.

^{^[1]} See e.g. Gerrit W. Gong, The Standards of “Civilization” in International Society, Clarendon Press: Oxford (984); James Thuo Gathii, ‘International Law and Eurocentricity’, 9 European Journal of International Law 184 (1998) [hereinafter EJIL ]; Onuma Yasuaki, ‘When Was the Law of International Society Born - An Inquiry of the History of International Law from an Intercivilizational Perspective’, 2 Journal of the History of International Law 1 (2000) [hereinafter Onuma (2000a)] ; David P. Fidler, The Return of the Standard of Civilization, 2 Chicago Journal of International Law 137 (2001); Martti Koskenniemi, The Gentle Civilizer of Nations: the Rise and Fall of International Law 1870-1960 , Cambridge University Press: Cambridge (2002); Alexander Orakhelashvili, ‘The Idea of European International Law’, 17 EJIL 315 (2006).

^{^[2]} Fidler (2000), 403. The concept of ‘international society’ and ‘international community’ are undoubtedly interrelated, and some authors use them to mean the same concept. This paper will not attempt to go into the nuances between ‘society’ and ‘community’, but notes there are authors that do make a distinction. Barry Buzan, distinguishes the German terms ‘Gemeinschaft’ (community) and ‘Gesellschaft’ (society), arguing that the former denotes “an essentially historical conception” of “something organic and traditional, involving bonds of common sentiment, experience and identity”, whereas the latter concept perceives “society as being contractual and contracted rather than sentimental and traditional”: ‘From International System to International Society: Structural Realism and Regime Theory meet the English School’, 47 International Organization 327 (1993), 333. Georges Abi-Saab argues that “'community' is a relative concept and its existence is a question of degree”, and that “to designate a group globally as a 'community' it must first constitute a 'society': that is to say, it must first attain a certain degree or threshold of intensity and stability (or normality) in relations among its members, enabling them to be identified and distinguished from other subjects found in the same sphere” (249) [emphasis mine]: ‘Whither the International Community?’, 9 EJIL 248 (1998). It is thus clear that this mutual identification and ‘distinguishing from others’ is characteristic of the constitution of international society to be discussed below.

^{^[3]} Koskenniemi (2002), 169.

^{^[4]} For an in depth analysis of international law and its relationship with the colonial experience, see

Antony Anghie, ‘Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations’, 34 New York University Journal of International Law and Politics 513 (2001-2002). At 516, Anghie sums up the underlying theme of this paper succinctly:

“Given the foundational significance of the proposition that international law is universal, it follows that any comprehensive theory of the discipline needs to address the question how a single system of international law, with its explicitly European origins, became global and applicable to the societies of African, Asia, and the Pacific, with their very different cultures, belief systems and political and economic institutions”.

Koskenniemi (2002) is extremely useful in this respect.

^{^[5]} Gong (1984), 3. Buzan, borrowing from Hedley Bull, perceives international society as “an arrangement of social life that it promotes certain goals or values” (332), and sees the “sense of we-ness” constituting a “common identity [as] central to the concept of society” (335). Onuma Yasuaki, at 135, writes that “international law embodies common or shared understandings of the members of international society in a more legitimate and explicit manner than other norms or instruments.”: ‘International Law in and with International Politics: The Functions of International Law in International Society’, 14 EJIL 105 (2003).

^{^[6]} Abi-Saab (1998). 250.

^{^[7]} Indeed, there has been much contention whether this heritage should be included in the Preambular text of the now (temporarily?) defunct Constitution of the European Union.

^{^[8]} The Peace of Westphalia established a “Christian and Universal Peace” (Article I), and makes various references to the notions of sovereignty and its inviolability. Wilhelm G. Grewe provides a comprehensive historical account of how Christianity—or ‘Christendom’—“formed a unified body linked together by a common legal order”: The Epochs of International Law [translated by Michael Byers], Walter de Gruyter: New York, 2000: 287. Though admittedly international law in rudimentary forms may have existed before Westphalia. Further, due to the preoccupation of international law as a Eurocentric creation, little is known about whether some form of ‘international’ (acknowledging that the concept of ‘international’ is also European in origin) law governing relations beyond Europe existed before this period: see Onuma (2000a). Orakhelashvili (2006) also provides a brief overview of “non-European origins of international law”: 328-330.

^{^[9]} See e.g. Simpson (2001); Koskenniemi (2002). Orakhelashvili (2006), at 337, criticises that that this ‘public law of Europe’ is in fact not more than “ambiguous political traditions”.

^{^[10]} As Nico Krisch writes: “[t]he sovereign equality of states has, since the17th century, become a building block of the international legal system […]”: ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’, 16 EJIL 369 (2005), 377. Though he is admitted discussing the hegemony of certain states at specific times in history (Spain/16^th Century; Great Britain/19^th Century; United States/20^th Century), much of Krisch’s thesis on the manipulation of international law to project and protect the interests of powerful states can be extended to the overall European dominance in international law, then and now. Krisch’s ideas are reflected also in Onuma (2000a).

^{^[11]} Georges Abi-Saab speaks of “prolongation of the European system”: ‘International Law and the International Community: the Long Road to Universality’, Chapter I in Ronald St. John Macdonald et al. (ed.) Essays in Honour of Wang Tieya, Nijhoff: Dordrecht (1994), 32. For more on history of the expansion of the European conception of international society, see also Hedley Bull and Adam Watson (ed.), The Expansion of International Society, Clarendon Press: Oxford (1984); Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’, 40 Harvard International Law Journal 1 (1999); Anghie (2001-2002); Koskenniemi (2002) writes at 51: “Europe was a political society and international law an inextricable part of its organization”. Onuma writes at 44: “International law as we assume it to be today is the law of international society covering the globe, and it was around the end of the nineteenth century when this century came into existence” through “the subjugation of competing powers in other civilizations by European powers, European international law became the global standard”: ‘The Birth of International Law As the Law of International Society’, 94 American Society of International Law Proceedings 44 (2000) [hereinafter Onuma (2000b)]. See related comments in Onuma (2000a), at 7.

^{^[12]} Orakhelashvili (2006) put it simply at 325: “[t]he idea of European international law was part of the ideology of colonialism”.

^{^[13]} Gong (1984), 3; see also 14-15 for an elaboration of civilisation as defined juridically to include notions such as guarantees of basic rights, organised and efficient state machinery, adherence to “generally accepted international law”. See also Koskenniemi (2002), who at 51 writes: “the founding conception of late nineteenth-century international law was not sovereignty but a collective (European) conscience” [emphasis in original].

^{^[14]} Gong (1984), 3. See also Anghie (1999) who argues that such a distinction was characteristic of legal positivism that prevailed in informing European imperial expansionism in the 19^th Century: “the distinction between the civilized and the uncivilized was a fundamental tenet of positivist epistemology” (23), according to which sovereignty was afforded to merely to the ‘civilised’. Koskenniemi (2002), at 130, argues the expansion of international law “was a discourse of exclusion-inclusion”. Orakhelashvili (2006) speaks of “legal exclusivity”.

^{^[15]} Gong (1984), 55; Orakhelashvili (2006), 318-320. Koskenniemi (2002), at 134, writes that “[n]o stable standard of civilization emerged to govern entry into the “community of international law””.

^{^[16]} Gong (1984), 21.

^{^[17]} Ibid., 5-6. Simpson (2001) argues that this use of civilisation was an early example of ‘liberal anti-pluralism’: 546.

^{^[18]} See generally Gong (1984); Anghie (1999); Fidler (2001) Koskenniemi (2002); Kirsch (2005); Orakhelashvili (2006). The concept of ‘Eurocenticism’ within international law, as Bull and Watson (1984) argue, comes from the “historical record” that “it was in fact Europe and not America, Asia or Africa, that first dominated and unified the world”: 2. Onuma (2000a), advocating that in fact the world has historically consisted of various civilisations, or which the European is but one of many, does not share this perspective.

^{^[19]} Gong (1984), 5, 54. Anghie (1999), at 62-64 , analyses how trade, ‘civilising missions’ and ‘humanitarianism’ were used to justify colonialism and expansion. See also Koskenniemi (2002), at 176, arguing that international law “is indissociable from the wider narrative of a liberal internationalism that thinks of itself as the “legal conscience of the civilized world” and whose humanitarian aspirations cannot be dismissed as a set of bad-faith justifications for Western domination” [emphasis in original].

^{^[20]} Onuma (2000a), 63-64. This is supported by Gong (1984); Anghie (1999).

^{^[21]} Fidler (2000), 394. Anghie (2001-2002), at 518, writes that “practices of cultural subordination and economic exploitation, which were essential aspects of colonialism, are not epiphenomenal aberrations in the international system that were remedied by the project of decolonization and self-determination”.

^{^[22]} Krisch (2005), 377. On 388, Krisch writes that international law offer power states “an excellent tool for international regulation and for the pacification and stabilization of their dominance”. Admittedly, he does outline certain constraints that international law places on powerful states.

^{^[23]} See for example UN Charter Article 2(1) and 2(4); 1970 Declaration on Friendly Relations. See also Fidler (2000), 403; Anghie (2001-2002) suggests that sovereign equality does not in practice apply to non-European states may be “because of international law and institutions rather than despite international law and institutions” (520) [emephasis in original].

^{^[24]} James Crawford, The Creation of States in International, Clarendon Press, Oxford, 1979: 4, 11-14. See also Nicholas Onuf, ‘The Constitution of International Society’, 5 EJIL 1 (1994), 17.

^{^[25]} Abi-Saab (1994), 36-39. The word ‘christening’ is used here deliberately, for the idea of European civilisation before the 19^th Century was indeed Christianity: see fn. 8 above. Makau W. Mutua speaks of “juristic baptism” in the African context, and argues that constitutive recognition was “an especially convenient tool for interference in the affairs of other political societies”: ‘Why Redraw the Map of Africa of Africa: A Legal and Moral Inquiry’, 16 Michigan Journal of International Law 1113 (1995), 1123-1125.

^{^[26]} Simpson (2001), 548.

^{^[27]} Montevideo Convention 1933, Article 1:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

See also Article 3, which explicitly states: “The political existence of the state is independent of recognition by the other states”.

^{^[28]} Simpson (2001), 549-553, narrates the discussion by the drafters of the UN Charter about the criterion of admission to use. Already then, it was apparent certain states were inclined to include the democratic credentials of a state as the key to membership, though eventually “the universalist, pluralist position prevailed in the end” (553).

^{^[29]} Competence of the General Assembly for the Admission of a State to the United Nations (ICJ Advisory Opinion of 3 March 1950). Further, the Court held that existing members cannot subject their affirmative vote on an additional condition not mentioned in the Charter.

^{^[30]} Anghie (2001-2002), 566.

^{^[31]} Mutua (1995), 1138. Anghie (2001-2002) provides an elaborate account of the origins of the Mandate system and its conception of sovereignty, which he argues has influentially shaped the legacy of international law in general, and non-European states in particular. At 565-566, Anghie argues the universalising tendencies of 19^th Century international law “remained unchallenged by the new international law of the mandates”.

^{^[32]} Gong (1984), 76-81. See also Charles H. Alexandrowicz , ‘The Juridical Expression of the Sacred Trust of Civilization’, 65 American Journal of International Law 149, Anghie (1999) and Koskenniemi (2002) (especially Chapter II), for an in-depth discussion of the “juridical expression of the sacred trust of civilization” originating from the 1884-1885 Berlin Conference.

^{^[33]} Article 22 of the League of Nations Covenant.

^{^[34]} The United Nations Trusteeship System did not distance itself from the language of “sacred trust”: see Article 73 of UN Charter. It is such a lack of departure from the previously demarcated geographical boundaries that makes the whole notion of self-determination, and the birth of “contrived state” that resulted from it, “beset by a multitude of problems”: Mutua (1995), 1137-1142.

^{^[35]} The Mandate System created three classes of ‘readiness’ on the progress toward civilisation, based more or less on the degree of ‘civilisation’ of the mandated territory. See fn. 15 above.

^{^[36]} Article 38(1)(c) [emphasis mine]. Though admittedly the applicability of this provision today is diluted, its symbolic wording, and the fact that it has not been, or could not be, amended to reflect the current international legal order makes this article of the ICJ a constant reminder of the past. Gong calls this, at 69, “an embarrassing anachronism”.

^{^[37]} Anghie (1999) writes, at 74 [emphasis mine]:

“The international community of the late twentieth century appears open, cosmopolitan, accommodating, and neutral; sovereignty today is a set of powers and competencies that can be enjoyed by all states regardless of their particular cultural identities”.

^{^[38]} Fidler (2000), 406

^{^[39]} Mutua (1995) argues extensively that the right to self-determination, though gave granted independence of previously European colonies, was “exercised not by the victims of colonization, but their victimizers, the elites who control the international state system”: 1117.

^{^[40]} Gong (1984), 243.

^{^[41]} Koskenniemi (2002), 175. James Thuo Gathii suggests that the “mainstream liberal international law scholarship [which] serves to legitimize Euro-American imperial neo-colonialism” under the regime of “global economic integration” is partly attributable to the complicity of elites in the developing world: ‘International Law and Eurocentricity’, 9 EJIL 184 (1998), 210. Similar views are espoused by Mutua (1995). See also Kingsbury (1998), at 607 speaking of “structural homology among sovereign states”.

^{^[42]} Christian Hillgruber, 'The Admission of New States to the International Community', 9 EJIL 491 (1998), pp 500-501. Anghie (1999), in reference to recognition in the 19^th Century, suggests that recognition as determined by European states did not only afford the recognised state legal status in the international society, but also “[reinforced European states’] authority […] to make sovereignty a possession that they could then proceed to dispense, deny, create, or grant partially” (66). This underlines how European states were able to make international law ‘universal’ and “that the [international] society […] in their image”: Fidler (2000), 403.

^{^[43]} Hillgruber (1998), 509. this was done en masse under the European Communities: see e.g., the 1991 ‘European Community Declaration on the ‘Guidelines’ on the Recognition of New States in Eastern Europe and the Soviet Union’. See also Gong (1984), 91;

^{^[44]} Bulletin No.6/1993 of The European Council, Copenhagen, 21-22 June 1993, at 13.

^{^[45]} See also the text of Partnership Agreement between the European Union and the African, Caribbean and Pacific (ACP) States [‘Cotonou Agreement’], Preamble, Article 8, and especially Article 9:

“Respect for human rights, democratic principles and the rule of law, which underpin the ACP-EU Partnership, shall underpin the domestic and international policies of the Parties and constitute the essential elements of this Agreement”.

Article 96 provides that failure to live up to these “essential elements” will eventually result in suspension. See also Koskenniemi (2005), 115.

^{^[46]} Fidler (2000), 391.

^{^[47]} Anghie (2001-2002), at 624; Koskenniemi (2002), 177; Krisch (2005), 398.

^{^[48]} On the extensive regime of human rights treaties that exist today, Onuma (2003), at 134, writes that they “embody global aspirations shared by the overwhelming majority of members of international society by “[inducing] convergence, if not strict observance” (italics in original).

^{^[49]} Fidler (2000), 407. See also Koskenniemi (2005) urging that “we should take much more seriously those critiques of international law that point to its role as a hegemonic technique”: 115. Various other scholars concur with this notion of ‘international legal hegemony’: see Detlev Vagts, ‘Hegemonic International Law’, 95 American Journal of International Law (2001) 843, 845; David C. Hendrickson, ‘International Law and Universal Empire: A View from the Eighteenth Century’, 99 American Society of International Law Proceedings 307 (2005), 308; Fidler (2000), 397; Alvarez (2001), 192; Mac Donald (2002); and also Krisch (2005), who uses the term “legalized hegemony”, 396.

^{^[50]} Anne-Marie Slaughter, ‘International Law in a World of Liberal States’, 6 European Journal of International Law 503 (1995), 509 [emphasis mine].

^{^[51]} Slaughter (1995), 516. [emphasis mine]. The word ‘dictated’ conjures ideas of ‘legal hegemony’ discussed above: see fn. 49 above.

^{^[52]} Franck (1992), 46-47; 91.

^{^[53]} José E. Alvarez, ‘Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory’, 12 EJIL 183 (2001), 189. At 192 Alvarez talks of the “oppressive voice of neo-liberal hegemony”. Much of this ”liberal triumphalism” can be traced back to Francis Fukuyama’s seminal declaration that “with the universalization of Western liberal democracy as the final form of human government” history was at an end: Gerry Simpson, ‘Two Liberalisms’, 12 EJIL 537 (2001), 539; and also Susan Marks, ‘The End of History? Reflections on Some International Legal Theses’, 3 European Journal of International Law 449 (1997) and Gerry Simpson, ‘Democratic Liberalism in International Legal Theory’, 15 Australian Yearbook of International Law 103 (1994). See also Alex Mills and Tim Stephens, ‘Challenging the Role of Judges in Slaughter’s Liberal Theory of International Law’, 18 Leiden Journal of International Law 1 (2005), 29. Patrick Capps, warns that liberalism seems to justify “unilateral interpretations” by the Kantian proposition of a ‘league’ powerful states “of what objective morality requires when applied to a highly complex world”: ‘The Kantian Project in Modern International Legal Theory’, 12 EJIL 1003 (2001), 1020. Euan MacDonald cautions against “neo-liberal imperialism”, the foundations of which “rest on an incoherent mixture of selective positivistic analysis, highly contestable political science, and the essentially uncritical acceptance of a 200 year-old political theory”: ‘International Law, Democratic Governance and September the 11^th’, 3 German Law Journal (2002), available online at: .

^{^[54]} Fidler (1984) speaks of “the standard of civilization [having been] reincarnated n the standard of liberal, globalized civilization”: 411.Anghie (1999), similarly writes that “the civilizing mission may be reconstructed in the contemporary vocabulary of human rights, governance and economic liberalization” (80). Simpson (2001) distinguishes between ‘classical Charter liberalism’ which emphasises “tolerance diversity and openness together with an agnosticism about moral truth” (539), and ‘liberal anti-pluralism’, which is a profound form of “illiberal conformitarianism” that views original Charter conceptions of sovereign equality as “an absurdity” (541). Koskenniemi (2002), 54-67, outlines that the origins of the ‘liberal project’, with human rights as “the fundamental objects of protection by international law”, took root at around the same time as European expansion in the late 19^th Century—as has been discussed earlier.

^{^[55]} Thomas Carothers, ‘Empirical Perspectives on the Emerging Norm of Democracy in International Law’, 86 American Society of International Law Proceedings 261 (1992), 262-264.

^{^[56]} Gong (1984), 244.

^{^[57]} The idea of the ‘liberal democratic peace’ which dominates liberal international legal scholarship as advocated by Slaughter and Franck, is primarily premised on the presumption that liberal states do not go to war because they adhere to democratic principles and the rule of (international) law. Christian Reus-Smit, in analysing “the archetypal liberal state”, the United States, criticises liberal international legal theory’s assumption of liberal states adhering to international law and complying with human rights standards as “empirically dubious”: ‘The Strange Death of Liberal International Theory’, 12 EJIL 573 (2001), 588-589. In fact, the ‘liberal democratic peace’ theory wilfully neglects the aggressive engagement of liberal states against those states they deem non-liberal: see Alvarez (2001); Simpson (2001); MacDonald (2002); Krisch (2005). Buznan (1993) also speaks of divisions of the world into ‘concentric circles’, whereby the ‘core’ “pluralistic, democratic states” at times intervene at the periphery on behalf of behalf of communal values or in the protection of a common identity: 349-351.

^{^[58]} Ann-Marie Slaughter in ‘The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations’, (1994) 4 Transnational Law and Contemporary Problems 377, and to some extent, Franck (1992), are examples of proponents of the right to ‘democratic intervention’. Franck writes at 88: “one way to promote universal and perpetual nonaggression—probably the best and, perhaps, the only way, is to make democracy an entitlement of all peoples” [emphasis mine]. The United States-led campaigns of ‘Operation Uphold Democracy’ (Haiti 1994) and ‘Operation Iraqi Freedom’ (2003) are prime examples of such actions in practice. For more critics of this, see Capps (2001), 1015-1016; Mills and Stephens (2005), 25; and Kingsbury (1998), who writes, at 621: “The processes of colonial expansion and state formation that made the traditional sovereignty system global were themselves highly intrusive, but the system now provides a mild check on further intrusion”.

^{^[59]} Kosovo (1999), Afghanistan (2001), and even Iraq (2003), were all justified, at one point or another, on the basis of ‘humanitarianism’: Krisch (2005). See also Nico Krisch, ‘Legality, Morality and the Dilemma of Humanitarian Intervention after Kosovo’, 13 EJIL 323 (2002).

^{^[60]} Erika de Wet suggests that core concepts like erga omnes and jus cogens are now the “collective interest” of the international community, and forecasts the “the constitutionalization of the international legal order”: ‘The International Constitutional Order’, 55 International and Comparative Law Quarterly 51 (2006), 51. Koskenniemi (2005) is more sceptical, 117 and 122: “jus cogens and obligations erga omnes, two notions expressed in a dead European language that have no clear reference in this world but which invoke a longing for such reference and create a community out of such longing”. See also Abi-Saab (1998), 261-262.

^{^[61]} See, e.g., Marks (1997); Krisch (2005), 386. Simpson (1994), at 127, writes: “liberalism proposes an unequal international society of outsiders and insiders”. Kingsbury (1998) argues, at 622 that this is “a continuation of recurrent patterns in the history of Western legal thought”.

^{^[62]} See Orakhelashvili (2006), at 340, who describes “certain European projects which [emphasize] the unity of European states in pursuance of certain values and interests”, such as the European Convention on Human Rights and EU law.

^{^[63]} Anghie (1999), 67.

^{^[64]} As Onuma (2000b) writes, “international society came to exist only when Afro-Asian nations were forced to be members of the European international society”: 44.

^{^[65]} Anghie (2001-2002), 627.

^{^[66]} Koskenniemi (2002), 176 [emphasis in original]. Admittedly, Koskenniemi used these words to describe “the story of international law and formal empire in 1870-1914”, though as hopefully have been convincingly outlined above, international law’s ties with ‘liberal internationalism’ has not merely been restricted in that period, but is still very much strong and prevalent today.

^{^[67]} Anghie (2001-2002) succinctly puts it, at 627:

“the tragedy for the Third World is that the mechanism used by international law to achieve decolonization also were the mechanism that created neocolonialism and that, furthermore, the legal structures, ideologies, and jurisprudential techniques [as embodied by the Mandate System] for furthering neo-colonialism largely were in place before Third-World states actually attained independence”.

^{^[68]} Onuma (2000a), 61.

^{^[69]} Onuma (2000a), 59:

“Today’s international law is perceived as a secular comprehensive legal order existing among nation states which are sovereign, independent and equal, irrespective of their size, power and influence. It is a law valid in global international society which covers all these states”.

^{^[70]} As Krisch (2005) writes at 408:

“[i]nternational relations are marked by inequality, and if international law were simply an order of equals, its role would be weak indeed. Power relations are inevitably inscribed into international law, as they are into all forms of law, sometimes more, sometimes less visibly”.

Onuma (2000a) suggests that international law “must constantly reorganize and reconceptualize itself to rectify past wrongs and respond to the new realties of the world”: 66. Compare with David Kennedy’s statement that “the international system [needs] remodelling, updating, completion, to deal with new challenges”: ‘Speaking Law to Power: International Law and Foreign Policy Closing Remarks’, 23 Wisconsin International Law Journal 173 (2005), 180.

^{^[71]} Here I rearrange the words of David Kennedy, who originally wrote in ‘A New World Order: Yesterday, Today, and Tomorrow’, 4 Transnational Law & Contemporary Problems 329 (1994):

“For internationalists, belief in the international and commitment to reform on its behalf lie very close together. The international must be built and defended, needs commitment, is threatened by scepticism” (338).

"Mei"

2007-02-15T14:28:00.000+01:00

Just read that a Taiwanese student producer just won the Silver Bear price at the Berlinale International Film Festival!

The short film is called "Mei", by Arvin Chen who produced the movie as part of his graduate thesis at the USC SChool of Cinema. You can see the trailer below! Looks pretty good :)

Cabinet formation

2007-02-03T19:35:00.000+01:00

It took over ten weeks, but it appears that the two biggest parties of the last parliamentarian elections, and a smaller fringe party, are about to close the deal on a new cabinet.

There was a lot of name-calling, mud slinging and irritated live television debates during the campaigns. The Labour Party (PvdA) leader Wouter Bos explicitly said that he would never sit in the same cabinet as the incumbent Christian Democrats (CDA) leader and prime minister Jan-Peter Balkenende.

But politics is about pragmatism and reality, and given that the PdvA (33 seats) and CDA (41 seats) both got the highest number of votes, they decided to sit down together with the Christian Union (CD, 6 seats) in order to form a safe majority. A combo of two centre-right Christian parties and a centre-left social-democratic party.

Dutch politics is really all about compromise and consensus, and because none of the parties stand to gain a majority of the votes, it’s always inevitably a coalition of parties that go on to form the cabinet government. It’s a delicate process, bringing together at times parties that do not agree and even conflict on a number of issues. You do run the danger of the ‘tail wagging the dog’, whereby the smaller coalition partner causes the downfall of the entire cabinet over some controversial issue (like last time when the coalition partner Democrats-66 broke the formation over the Ayaan Hirsi Ali affair). In the current coalition, there are fears that the small Christian Union will be ‘troublesome’ on moral issues like the same-sex marriage and euthanasia. But supposedly coalitions governments represent the popular will better and more directly than majoritarianism. Hence the Netherlands is famed for its ‘polder model’.

So for the past few weeks they leaders of the parties have been sitting in secret meeting rooms, in an attempt to strike a ‘governing coalition agreement’ [regeerakkoord]. Everything was done in secret, and only the parties involved and mediator [informateur], Herman Wijfels who is responsible for getting the politicians around the table, know what is happening. It’s done in utter secrecy, even the location of the meetings are different every single week to avoid the press chasing after the party leaders for information (though the very table they sit around to discuss at is apparently always the same one). Even the 150 newly-elected parliamentarians have no idea of what kind of discussions and compromises taking place. So basically the future of this country is decided by the ‘wheeling and dealing’ of these four men.

To date, some points from the draft ‘governing coalition agreement’ have been agreed upon:

- General amnesty for asylum seekers who were in the Netherlands before 2001

- State pension plan (AOW) every pensioner is entitled to receive (around €700 per month): an irksome bone of contention when PvdA leader suggested during the election campaign that rich(er) old people should have to finance their own state pension. Compromise seems to be that those who stop working before 65, and have a top-up pension of over €15000 will have to finance their own pensions from 2011; while those who work until 65 do not have to; those who continue working after 65 even get a tax benefit

- Child care: while the CU and PvdA want free child care from the state, the compromise has been to make parents pay part of the costs, and that there will be more money invested in the crèche system.

- Some €800 million will be put aside for the environment, probably because of the recent sudden media attention (and climate changes) that suggest that global warming is taking place: a new ministership position will be installed.

- Mortgage tax refund: the PvdA wants to remove this because it believes rich(er) people who can afford to buy (a) house(s) should not enjoy tax benefits; but the CDA believes this will stunt the economy and hurt business; so current tax refund will remain.

- Economic growth will be capped at around 2% per year, whereby by 2011 there will be a big government surplus.

The wedding is off

2007-02-03T18:39:00.000+01:00

You’d think this kind of thing couldn’t possibly happen today, but three couples refused to get married in a Belgian municipality because the alderman for civic affairs is… black.

That’s the only reason why the couples cancelled at the very last minute in the town of Sint-Niklaas. The mayor’s reaction was shock, however does not think it has anything to do with the fact that the right-wing party Vlaams Belang holds a third of the seats in the city council. The alderman, Wouter Van Bellingen, whose name is as Flemish as it can get, was adopted as a child by Flemish parents. He doesn’t seem too bothered by the whole fiasco.

”If people want to refuse me as the alderman of civic affairs at their wedding, there are three options: they could not marry, they could move house, or they could accept me as their alderman”.

UN Secretary General in The Hague

2007-02-01T21:19:00.000+01:00

Ban Ki-Moon was in The Hague today, the first time in his official capacity as the new UN secretary-general. He met with the Queen, Prime Minister Balkenende, and visited the ICC, ICJ and ICTY. He praised the Netherlands “as the fourth largest contributor to the UN and a dedicated member of the Human Rights Council and the Peacebuilding Commission”.

Scramble for Africa

2007-02-01T12:25:00.000+01:00

A conference of African leaders in Beijing late last year confirmed China’s ‘clout’ on the continent, whereas the Chinese president Hu Jintao is once again on a whirlwind trip throughout Africa. A cause for concern, echoing warnings by South African president Mbeki who recently suggested China-Africa relations were increasingly becoming ‘colonial’ in nature. Here follows a commentary by Jonathan Hoslag on China’s recent advances in Africa.

Africa as the mine of the world

“The pact that China sealed with the political elites of Africa [does not bring benefit] to the majority of the African population. Even though various countries enjoy higher prices for natural resources and China does invest more than the European countries as a whole, it confirms Africa in its role as the mine of the world, without receiving the chance to develop in other sectors. Around 90% of Chinese imports consists of natural resources. The excessive industrialization of the Asian giant increasingly led to a social bloodbath in hundreds of African factories. It also does not add to the optimis that Chinese companies implement their projects in Africa largely with Chinese workers: own workforce first!

China undermines the chance of democracy

Due to the fact that Beijing strengthens the political elites in their position as guardians of the continent, the chance of democracy and good governance appears to be further undermined. China hinders the existence of an assertive middle class. It breathes new life into the patronage networks of [cronies]. Because Chinese diplomats continuously stand in the way in the Security Council of the United Nations, dishonest [people] can roam unpunished. Omar al-Bashir, the Sudanese president, can [thank] China that he is still in his seat. Not only did the People’s Republic block international sanctions, it also provided Khartoum with weapons that were employed in the suppression of rebels in the south of the country and in the cleansing operations in the province of Darfur. Even though the Chinese government continuously staunchly denies it, more and more weapons are arriving in all sorts of [conflict zones]: the Congo, Ehtiopia, Zimbabwe, and so on.

Guerrilla fighter in a suit

Chinese diplomacy behaves like a guerrilla fighter in a suit. It realises it is no match against the big players, but it conveniently targets their weak spots. Africa is again at the frontline of an international politics based on bids. The People’s Republic is determined in its plan to strengthen its influence, and is being followed in her ‘scramble’ by countries like India. Europe and the United States do not get out of their way, and hang onto their energy interests and strategic considerations. The result is a downward spiral in which Africa will again end up [as the underdog].

Saddam and Osama

2007-01-30T16:29:00.001+01:00

Has to be one of the greatest satires I’ve seen in a long time.

First case of the ICC

2007-01-29T23:11:00.000+01:00

After almost five years of idleness, the International Criminal Court is about to proceed with its first ever case.

The Pre-Trial Chamber today confirmed charges against Thomas Lubanga, who is set to stand trial of war crimes prohibiting the recruitement and enlistment of child soldiers in the Democratic Republic of Congo.

The Chamber found that there was sufficient evidence to establish substantial grounds to believe that when the FPLC was created in early September 2002, there was an agreement or common plan between Thomas Lubanga Dyilo and other high-ranking FPLC commanders. The purpose of the plan was allegedly to further war effort by voluntarily or forcibly recruiting minors into the ranks of the FPLC, subjecting them to military training and causing them to participate actively in military operations and using them as bodyguards. The Chamber found that there was sufficient evidence to establish substantial grounds to believe that Thomas Lubanga Dyilo assumed an essential general coordinating role in the implementation of the common plan and that he personally exercised other functions in the implementation of the common plan and that he was aware of the importance of his role.

According to Pre-Trial Chamber I, although the agreement or common plan did not specifically target children under the age of fifteen, but young recruits in general, in the normal course of events, its implementation would entail the objective risk that it would involve children under the age of fifteen.

The Chamber found that there was sufficient evidence to establish substantial grounds to believe that Thomas Lubanga Dyilo and other high-ranking FPLC commanders shared knowledge of this and that all of them accepted the result.

Lubanga is also the first and only person who is in the Court's custody, and is being held at the maximum security prison at Scheveningen (where Milosovic was held and died).

CNN interview with President Chen

2007-01-29T18:24:00.000+01:00

Love him or hate him, President Chen Shui-bian does have a few things to say:

about the 988 Chinese missiles pointed at Taiwan... about the recent embezzlement scandals... and about the denial of Taiwan's 23million people's "collective rights" by the UN.

Talk Asia: Chen Shui Bian Part 01 (01.29.07, 8:30)

Talk Asia: Chen Shui Bian Part 02 (01.29.07, 7:30)

Talk Asia: Chen Shui Bian Part 03 (01.29.07, 6:10)

Allochthon, allochthon...

2007-01-26T17:27:00.000+01:00

If you’re a white you’re an expat. Every other foreigner is an allochthon.[1]

This differentiation (or perhaps a better word is segregation) is even entrenched in the official Central Bureau of Statistics [Centraal Bureau voor de Statistiek, CBS] of the Netherlands. In official census surveys, they make the distinction between ‘autochtoons’ (locals) and ‘allochtoons’ (people originally born in a different country). Strictly speaking, the Dutch royal family (of German descent) would be allochtons, but no one would ever dare say in public. And then there’s the third, dreadful distinction: the so-called ‘non-western allochthon’ (niet-westerse allochtoon), defined as someone from :

“one of the countries in the continents of Africa, Latin-America and Asia (excluding Indonesia and Japan), or Turkey.”

Coincidentally (or maybe deliberately) people from these places happen to have a different skin colour. But why are people from Indonesia and Japan not considered a so-called ‘non-western allochthon’?

“On the ground of their social-economic and social-cultural position, allochthons from Indonesia and Japan are seen as western allochthons. It primarily is concerned with people who are born in the formal Dutch-Indies, and employers of Japanese companies with their family.”

In truth, people born in the formal Dutch-Indies are (mostly) white people, whereas people from Japan, a nation long considered developed and part of the civilised world, are supposed to have a more… (putting it mildly in their own words) sophisticated “social-economic and social-cultural position”.

So when are you not an allochthon? According to the CBS, the third generation of people with a different skin colour. So for those in the first and second generation (like me), tough luck… whatever you do, however you try to integrate, eat, dress, drink and talk like a local Dutchman, you look and speak foreign, so you are foreign.

Why is every deed of an allochthon seen in a different light from that of an autochthon? Simple: Because it’s about allochthons! As long as you are deviate from the norm (generations who are born and bred in the Netherlands), your ‘deviation’ is often included in [other people’s] judgement of you and also placed in that perspective. This is the idea that we mention someone by the most characteristic [element] of his/her existence.

[…] It is actually more fundamental [than this]: while you can change your career, you are allochthon for your entire life. You simply cannot stop with it. It is like your gender. Of course, there are people who change their gender, but to change your ethnic background, that is only possible with Michael Jackson […]
Bahram Sadeghi

Time and again you get official statistics which show what a great gap there is between (non-western) allochthons and autochthons. In a recent report, it was revealed that by the year 2050, a third of the population will be ‘allochthon’. This is compared to around the 19% of allochtoons now (or more precisely 10% ‘non-western’ and 9% ‘western’). And in the latest report finds concludes that (so-called non-western) allochthons have less of a rate of success in completing higher education than autochtoons. So, while 60% of the ‘locals’ graduate after five years of tertiary professional education (hbo), only 40% of do so. And in terms of those enrolled in university, while around the half of the ‘locals’ graduate after six years of study, only a third of (non-western) allochthons succeed.

As helpful as they are, statistics are just numbers, figures, calculations and abstract facts which have nothing or little to reveal about reality. They lump people together into nicely compartmentalised groupings which has little purpose other than divide and stigmatise certain portions of the population. It seems like the perfect means for the government machinery to more easily and readily divide, classify and rule the population for the sake of efficiency and bureaucracy.

Again, ask yourselves these questions: What does it say about those so-called allochthons who are born and bred here and know of no other home than this country? What does this say about the level of integration between people of different backgrounds? And how does making an explicit differentiation between people of so-called ‘western’ and ‘non-western’ background help with integration at all? If anything, it polarises people and society, and plays into the hands of those populist politicians and parties who use these kind of figures and facts to fool the unknowing voter. A popular weblog (Geenstijl.nl) produced a ‘Allochtoon-O-Meter’: with the use of the CBS statistics people can find out the percentage of (non-western) allochthons living in their neighbourhoods. The reactions of readers, those with few or no ‘allochthons’ as their neighbours rejoicing, and those with many ‘allochthons’ in their neighbourhood complaining and planning to move house, shows exactly how this kind of statistics is not at all helpful and counterproductive .

Discriminating, and disappointing… that, however much I personally do not fit into that wrong and racist stigma of the uncivilised, uneducated, benefit-claiming alien with a different skin colour, I should have to live the rest of my life labelled and seen as an ‘allochthon’…

I leave you with remarks from Iranian-born Dutch professor of integration at the University of Amsterdam, Halleh Ghorashi (emphasis mine and square brackets mine). She summed up the problem and issues in better words than I could:

”A positive development is that many more allochthons are belonging to the middle class. They have a great drive to emancipate themselves. The first generation began a new life here, they do everything to make something wonderful of it. And their children want to do better than their parents. That is succeeding more and more; there are many ‘social climbers’ amongst allochthons. Many more follow higher education, have jobs, pay taxes, go vote and feel themselves to be involved in society. But they must prove themselves time and again. [They are asked] time and again to distance [themselves] from the radicals. It is never enough. You become tired of this, and then you retreat to your own circle. […]

You should not lump people together into one [op één hoop gooien]. There are so many different new Netherlanders Turks, Surinamers, Morrocans, Indonesian Netherlanders, Antillians, Chinese, Vietnamese, Somalians, French, Afghans, Spaniards, and many more still. They are often equated with the group that cause problems. Take for example that TV-game show in which a candidate has to give another word for ‘non-conformistic person’ [‘onaangepast persoon’]. Instead of ‘asocial’ she said ‘allochthon’. […]

The new Netherlander is dynamic, future-oriented and self-conscious. He is open, prepared to change, he dares to undergo the experiment. He is hybrid: he dares to combine the best of diverse worlds with one another. […]

It is now about seeking contact with one another. We should look for ways to bridge the differences between groups. This is possible from a communal sense: we all feel like a Netherlander. It is an important step that many more new Netherlanders dare to come out for this: I am a Netherlander. […]

Often it is asked where we are from. Netherlanders always put so much emphasis [on the fact] that we do not belong here. This way, this will never be our country.

[This] was part of the Dutch democratic culture: giving others room. Tolerance is also a characteristic of civilisation. The society of today is no longer tolerant. You can treat others rudely without having to feel ashamed. Tolerance is choosing between two evils: between a taking up a conflict and letting the other be as he is. Now, we appear to be choosing for conflict and for laying down obligations [on others, namely foreigners]. But a hard attitude does not make you feel safer; instead you are going to feel even more unsafe.

We are accustomed to our freedom of expression. we act as if we can say anything, even if you insult others, even if you denigrate others. But the louder you scream, the weaker you stand. Whoever stands strong in his shoes is calm, peaceful, listens, lets others finish talking.

Freedom is important, but you must know how to treat it. Someone who only considers himself, is a democratic amateur. You are a professional when you also know the boundaries of freedom. You must give the other room, you must create room for the other. […] The Netherlands in the past few years has falling back from a professional democracy to amateur democracy.

[1] Allochthon comes from the Greek ‘allo' = other, and 'chthon' = earth. Autochthon also.

Thank you, USA!

2007-01-24T18:22:00.000+01:00

America’s foreign policy elite increasingly came to perceive the US as a Gulliver tied down and oppressed by political midgets, with their laws of nations, treaties, and multilateral institutions. The existing world order – created by the US itself – was first devalued in American eyes, then weakened, and finally consciously attacked.
Joschka Fischer

For the support and encouragements that made Saddam Hussein possible.

(Thanks Frits for the tip!)

No magic formula

2007-01-21T21:02:00.000+01:00

"I watched Bush's speech with some people who thought it would be a good idea to take a sip of liquor every time he told a lie. Three days later my head is aching.”
David Swanson

Mr Bush’s long-awaited speech was supposed to signal a change of US strategy in Iraq.

We consulted Members of Congress from both parties, allies abroad, and distinguished outside experts.

[…]

‘Allies’ as in the UK? Well, you have the UK’s support, but don’t expect it to contribute more troops.

In our discussions, we all agreed that there is no magic formula for success in Iraq.

And one message came through loud and clear: Failure in Iraq would be a disaster for the United States.

The consequences of failure are clear: Radical Islamic extremists would grow in strength and gain new recruits.

They would be in a better position to topple moderate governments, create chaos in the region, and use oil revenues to fund their ambitions.

Iran would be emboldened in its pursuit of nuclear weapons.

Our enemies would have a safe haven from which to plan and launch attacks on the American people.

Commitment and ‘deepening’ is not what the Iraqi Study Group led by James Baker advised. Even though Mr Bush took the “no magic formula” phrase directly from the report, he seemed to have disregarded the rest:

Many Americans are dissatisfied, not just with the situation in Iraq but with the state of
our political debate regarding Iraq. Our political leaders must build a bipartisan approach to bring a responsible conclusion to what is now a lengthy and costly war. Our country deserves a debate that prizes substance over rhetoric, and a policy that is adequately funded and sustainable. The President and Congress must work together. Our leaders must be candid and forthright with the American people in order to win their support.

Bipartisan approach… try convincing the Democrat-dominated Congress to give the rubber stamp to pour more funds and troops into Iraq.

Reason for failure:

Our past efforts to secure Baghdad failed for two principal reasons: There were not enough Iraqi and American troops to secure neighbourhoods that had been cleared of terrorists and insurgents.

And there were too many restrictions on the troops we did have.

Our military commanders reviewed the new Iraqi plan to ensure that it addressed these mistakes.

They report that it does. They also report that this plan can work.

The ‘cure’

This is a strong commitment. But for it to succeed, our commanders say the Iraqis will need our help.

So America will change our strategy to help the Iraqis carry out their campaign to put down sectarian violence - and bring security to the people of Baghdad.

This will require increasing American force levels. So I have committed more than 20,000 additional American troops to Iraq.

[…]

Many listening tonight will ask why this effort will succeed when previous operations to secure Baghdad did not.

Here are the differences: In earlier operations, Iraqi and American forces cleared many neighbourhoods of terrorists and insurgents - but when our forces moved on to other targets, the killers returned.

This time, we will have the force levels we need to hold the areas that have been cleared.

In earlier operations, political and sectarian interference prevented Iraqi and American forces from going into neighbourhoods that are home to those fuelling the sectarian violence.

This time, Iraqi and American forces will have a green light to enter these neighbourhoods - and [Iraqi] Prime Minister [Nouri] Maliki has pledged that political or sectarian interference will not be tolerated.

What’s to guarantee that the ‘terrorists and insurgents’ won’t return again? Are the Americans going to be stationed in these neighbourhoods on a permanent basis?

More strategy for success: throw money at the people

A successful strategy for Iraq goes beyond military operations.

Ordinary Iraqi citizens must see that military operations are accompanied by visible improvements in their neighbourhoods and communities.

So America will hold the Iraqi government to the benchmarks it has announced.

To establish its authority, the Iraqi government plans to take responsibility for security in all of Iraq's provinces by November.

To give every Iraqi citizen a stake in the country's economy, Iraq will pass legislation to share oil revenues among all Iraqis.

Not just Iraq

This begins with addressing Iran and Syria. These two regimes are allowing terrorists and insurgents to use their territory to move in and out of Iraq.

Iran is providing material support for attacks on American troops.

We will disrupt the attacks on our forces. We will interrupt the flow of support from Iran and Syria.

And we will seek out and destroy the networks providing advanced weaponry and training to our enemies in Iraq.

We are also taking other steps to bolster the security of Iraq and protect American interests in the Middle East.

Such an aggressive approach and tone toward Iran and Syria is totally contrary to the advice of the Iraqi Study Group:

The United States should immediately launch a new diplomatic offensive to build an

international consensus for stability in Iraq and the region. This diplomatic effort should include every country that has an interest in avoiding a chaotic Iraq, including all of Iraq’s neighbors. Iraq’s neighbors and key states in and outside the region should form a support group to reinforce security and national reconciliation within Iraq, neither of which Iraq can achieve on its own.

Given the ability of Iran and Syria to influence events within Iraq and their interest in avoiding chaos in Iraq, the United States should try to engage them constructively. In seeking to influence the behavior of both countries, the United States has disincentives and incentives available.

“Decisive ideological struggle of our time”

On one side are those who believe in freedom and moderation. On the other side are extremists who kill the innocent, and have declared their intention to destroy our way of life.

In the long run, the most realistic way to protect the American people is to provide a hopeful alternative to the hateful ideology of the enemy - by advancing liberty across a troubled region.

It is in the interests of the United States to stand with the brave men and women who are risking their lives to claim their freedom - and help them as they work to raise up just and hopeful societies across the Middle East.

A disguised way to say it’s a struggle between good and evil. What makes it so certain that it is ‘our’ way of life that the Iraqis and peoples of the Middle East want?

Don’t hope for victory

Let me be clear: The terrorists and insurgents in Iraq are without conscience, and they will make the year ahead bloody and violent.

Even if our new strategy works exactly as planned, deadly acts of violence will continue - and we must expect more Iraqi and American casualties.

The question is whether our new strategy will bring us closer to success. I believe that it will.

Victory will not look like the ones our fathers and grandfathers achieved.

There will be no surrender ceremony on the deck of a battleship.

But victory in Iraq will bring something new in the Arab world - a functioning democracy that polices its territory, upholds the rule of law, respects fundamental human liberties, and answers to its people.

‘Deck of a battleship’? This image looks strangely familiar…

‘Go big’ before going home’

If we increase our support at this crucial moment, and help the Iraqis break the current cycle of violence, we can hasten the day our troops begin coming home.

There are a few more strategies that Bush has forgotten.

‘Noble and necessary cause’

We also need to examine ways to mobilize talented American civilians to deploy overseas - where they can help build democratic institutions in communities and nations recovering from war and tyranny.

In these dangerous times, the United States is blessed to have extraordinary and selfless men and women willing to step forward and defend us.

These young Americans understand that our cause in Iraq is noble and necessary - and that the advance of freedom is the calling of our time.

Self-proclaimed messiah

It can be tempting to think that America can put aside the burdens of freedom.

Yet times of testing reveal the character of a Nation.

And throughout our history, Americans have always defied the pessimists and seen our faith in freedom redeemed.

Now America is engaged in a new struggle that will set the course for a new century. We can and we will prevail.

We go forward with trust that the Author of Liberty will guide us through these trying hours. Thank you and good night.

‘Author of Liberty’? Sounds like another of Bush’s fundamentalist Christian thinking … The ‘Readers of Liberty’ are not impressed, especially with the high death toll every single day:

Underscoring the challenge, even as the United Nations released its figure — 34,452 deaths in all — at least 70 more Iraqis were killed on Tuesday when a series of bomb blasts struck a largely Shiite university in northeast Baghdad.

After almost four years of war, in which Americans have focused largely on fighting an elusive enemy — Sunni militants and, more recently, Shiite death squads — military commanders say that keeping Iraqis alive has now moved to the center of the new strategy proposed by President Bush.

For many Iraqis, the pledge comes too late. The numbers reported by the United Nations were more than tenfold the number of American deaths for the entire war. As previous attempts to secure Baghdad have failed, tens of thousands of middle-class Iraqis have given up and fled the country. Those who remain are becoming increasingly radicalized as the violence draws them into a cycle of revenge.

The United Nations report said an average of 94 Iraqis died every day in 2006, with about half the deaths occurring in the capital. The majority died from gunshot wounds, in execution-style killings that are a common method for death squads, both Sunni and Shiite. The report registered the most lethal month as October, with deaths declining slightly in November and December.

Iraqi death toll exceeded 34,000 in '06, UN Says

The ‘surge’ in the number of troops and money to be poured into Iraq has been called the ‘The Texas Strategy’:

The "surge" is just another stalling tactic, designed to buy more time.

Oh, and one of the favorite techniques used by the owners of savings and loan associations to generate phony profits - it involved making high-interest loans to crooked or flaky real estate developers - came to be known as the "Texas strategy."
[…]
The administration has spent the last three years pretending that its splendid little war isn't a big disaster. There have been the bromides (we're making "good progress"); the promises (we have a "strategy for victory"); and, as always, attacks on the media for not reporting the good news from Iraq.

Who you gonna believe, the president or your lying eyes?

Now Mr. Bush has grudgingly sort- of admitted that things aren't going well - but he says his "new way forward" will fix everything.

So it's still the Texas strategy: the war's architects are trying to keep their failed venture going as long as possible.
[…]

Mr. Bush calls his critics "irresponsible," saying that they don't have an alternative to his strategy. But they do: setting a timetable for withdrawal, so that we can cut our losses, and trying to save what can be saved. It isn't a strategy for victory because that's no longer an option. It's a strategy for acknowledging reality.

The lesson of the savings and loan scandal was that when a bank has failed, you shouldn't let the owner string you along with promises - you should shut the thing down. We should do the same with Mr. Bush's failed war.

What did Mr Bush forget to mention?

Earlier this evening we aired a speech by President George W. Bush that may have left you with some false impressions. We need to correct these matters of fact.

The president's speech did not mention WMDs or Saddam Hussein or attempt to explain why we are occupying the nation of Iraq or what it would mean for that occupation to "win" or "lose." This may have left you with the impression that no justification is required by law to forcibly occupy someone else's country and kill a significant portion of their population. That is not the case.

The president made no reference to the permanent military bases he is illegally constructing in Iraq. This may have left you with the impression that he plans to leave Iraq some day. This, combined with his references to democracy, may have given you a certain idea of his plans for Iraq that does not seem to be suggested by the president's actions.

Bush also expressed support for a number of Middle-Eastern nations allied with the United States, notably Saudi Arabia. This may have given you the idea that these nations are democracies. They are dictatorships.

Bush began his speech by connecting Iraq to 9/11. In fact, Iraq had nothing to do with 9/11. We apologize to the millions who have lost loved ones because of this lie. When Bush said that al Qaeda was "still" active in Iraq, he failed to add that it had only become active in Iraq as a result of his invasion and occupation of that nation.

Bush said that he would see that the people of Iraq profit from its oil. This statement bears no relationship to actual US policy, and Bush has no legal right to decide what happens to another nation's resources.

Bush suggested that most Iraqis want the occupation to continue. This is false.

Bush suggested that occupying Iraq was making Americans safer. His own intelligence analysts disagree.

Bush implied that he can escalate wars at his own discretion. In fact, Congress can prevent him from doing so if it chooses to.

Of course, Bush has escalated this war in the past. We have not reported on that as such because he did not make a big deal of it. The reason he is making a big deal of it this time was not addressed in his speech.

What was new in the speech was a threat to Iran and Syria. Bush claimed that Iran is providing material to Iraqi resisters. There is no evidence of this. Bush said he was sending ships and missile defense systems to the region. These steps have no clear connection to Iraq and may be seen as part of a threat to Iran.

Bush said not one word about all of the Iraqi blood he has spilled. Approximately 655,000 Iraqis have died as a result of the United States' invasion and occupation of Iraq, thus far. And the death rate is increasing, not diminishing.

Why the surge? The reason maybe the hidden agenda to go to Iraq in the first place: "It's the oil, stupid." More evidence here:

As the [UK’s The Independent] notes, the [new Iraqi hydrocarbon] law will give Exxon Mobil, BP, Shell and other carbon cronies of the White House unprecedented sweetheart deals, allowing them to pump gargantuan profits from Iraq's nominally state-owned oilfields for decades to come. This law has been in the works since the very beginning of the invasion - indeed, since months before the invasion, when the Bush administration brought in Phillip Carroll, former CEO of both Shell and Fluor, the politically-wired oil servicing firm, to devise "contingency plans" for divvying up Iraq's oil after the attack. Once the deed was done, Carroll was made head of the American "advisory committee" overseeing the oil industry of the conquered land, as Joshua Holland of Alternet.com has chronicled in two remarkable reports on the backroom maneuvering over Iraq's oil: "Bush's Petro-Cartel Almost Has Iraq's Oil and "The US Takeover of Iraqi Oil."

From those earliest days until now, throughout all the twists and turns, the blood and chaos of the occupation, the Bush administration has kept its eye on this prize. The new law offers the barrelling buccaneers of the West a juicy set of production-sharing agreements (PSAs) that will maintain a fig leaf of Iraqi ownership of the nation's oil industry - while letting Bush's Big Oil buddies rake off up to 75 percent of all oil profits for an indefinite period up front, until they decide that their "infrastructure investments" have been repaid. Even then, the agreements will give the Western oil majors an unheard-of 20 percent of Iraq's oil profits - more than twice the average of standard PSAs, the Independent notes.

Of course, at the moment, the "security situation" - i.e., the living hell of death and suffering that Bush's "war of choice" has wrought in Iraq - prevents the Oil Barons from setting up shop in the looted fields. Hence Bush's overwhelming urge to "surge" despite the fierce opposition to his plans from Congress, the Pentagon and some members of his own party. Bush and his inner circle, including his chief adviser, old oilman Dick Cheney, believe that a bigger dose of blood and iron in Iraq will produce a sufficient level of stability to allow the oil majors to cash in the PSA chips that more than 3,000 American soldiers have purchased for them with their lives.
[…]
As the Independent wryly noted in its Sunday story, Dick Cheney himself revealed the true goal of the war back in 1999, in a speech he gave when he was still CEO of Halliburton. "Where is the oil going to come from" to slake the world's ever-growing thirst, asked Cheney, who then answered his own question: "The Middle East, with two-thirds of the world's oil and the lowest cost, is still where the prize ultimately lies."

New Oil Law Means Victory in Iraq for Bush

Striking similarities with Nixon’s ‘Vietnamisation’ speech in 1969. Just substitute totalitarianism for terrorism.

And I want to end the war for another reason. I want to end it so that the energy and dedication of you, our young people, now too often directed into bitter hatred against those responsible for the war, can be turned to the great challenges of peace, a better life for all Americans, a better life for all people on this earth.

I have chosen a plan for peace. I believe it will succeed.

If it does succeed, what the critics say now won't matter. If it does not succeed, anything I say then won't matter.

I know it may not be fashionable to speak of patriotism or national destiny these days. But I feel it is appropriate to do so on this occasion. Two hundred years ago this Nation was weak and poor. But even then, America was the hope of millions in the world. Today we have become the strongest and richest nation in the world. And the wheel of destiny has turned so that any hope the world has for the survival of peace and freedom will be determined by whether the American people have the moral stamina and the courage to meet the challenge of free world leadership.

Let historians not record that when America was the most powerful nation in the world we passed on the other side of the road and allowed the last hopes for peace and freedom of millions of people to be suffocated by the forces of totalitarianism.

It’s too easy to draw parallels:

First there is the realisation in Washington that it is not winning. Mr Bush has admitted this himself
Second, there is a policy of trying to hand over responsibility to the local government in the midst of battle, not after it - this happened in Vietnam with the policy of Vietnamisation
Third, there is the belief by the US administration that more troops are an important part of the answer
Fourth, there is an opposite belief by others that the enterprise cannot work and that disengagement must be sought - US public doubt is a theme common to both conflicts
Fifth, in Vietnam too the president consulted an outside group - they were called the Wise Men and, like the Iraq Study group, they too urged a policy designed to lead to withdrawal

This opinion piece to agrees too:

How similar this all is to the situation we face in Iraq now.

In Vietnam and Iraq, we tried to occupy a country that posed minimal threat to the US. We waged a counterinsurgency effort against adequately skilled, motivated and well-supplied fighters who did not want us occupying their land. We tried to prop up a weak and corrupt foreign government that we had helped to install.

The circle has come around again in frightening and depressing ways, complete with thousands of US troops and innocent civilians (including children) dead and horribly injured, war profiteers getting rich, and America's reputation in the world severely damaged.

We also have a US administration, like the Nixon administration, that has lost the trust of most of the people and the Congress, and which strikes many as being out of touch with reality and dangerous.

Now, as in the days when Nixon was leaving the presidency and Ford assumed office, Congress is trying to take responsibility to resolve a difficult and poorly thought-out war of choice, waged in an apparently incompetent way.

Some reactions to Bush’s new ‘strategy’:

What we will discover in the next few months, therefore, is simply whether the entire premise of this strategy is actually true. The president is asking us to find this out one more time. He seems to disbelieve the overwhelming evidence on the ground - that the dynamic has changed beyond recognition. His intellectual rubric - democracy versus terror - has not changed to deal with fast-changing events, or to take account of the sectarian dynamic that his appallingly managed occupation has spawned. […]

[…] The only leverage this president really has left is the looming regional war that withdrawal would bring. Yes, if we leave, the civil war will take off. And if we stay, with this level of troops, the civil war will also take off. One way, we get enmeshed in the brutal civil war in the region. One way, we get to face them another day, and perhaps benefit by setting them against each other, and destabilizing Iran. That's the awful choice this president has brought us to. Under these circumstances, I favor withdrawal, while of course, hoping that a miracle could take place. But make no mistake: a miracle is what this president needs. And a miracle is what we will now have to pray for.
Andrew Sullivan, The Daily Dish

"2007 is going to be a difficult year. There is going to be violence."
Senior Adviser to President Bush, Dan Bartlett

Aside: a fascinating account of Bush’s psyche:

Much of the world outside the US considers Bush a bully. "You're either with us or against us" is a bully's threat that anyone can recognize. The Bush doctrine of pre-emptive strikes is a bully's doctrine.

For his intimates and those closer to home, Bush appears to be what is called an emotional bully. An emotional bully gains control using sarcasm, teasing, mocking, name calling, threatening, ignoring, lying, or angering the other and forcing him to back down. Bush administration insider accounts describe this sort of behavior from the president. He's well known for his dismissive remarks. His penchant for giving nicknames to everyone has its dark, bully's side. Naming people is a way to control them.

[…]

[On] famous Bushisms, such as:

There is no doubt in my mind that we should allow the world's worst leaders to hold America hostage, to threaten our peace, to threaten our friends and allies with the world's worst weapons.

They [the terrorists] never stop thinking of ways to harm our country and our people - and neither do we.

To a psychiatrist, these are not mere malapropisms and mistakes in speech. They suggest ambivalence oscillating violently between poles. They suggest a desperate uncertainty about everything that the president reflexively seeks to hide by taking absolutist, rigid positions about "victory," "success," "mission accomplished," "stay the course," "compassion," "tax cuts," "no child left behind," and a host of other issues.

[…]

"I'm the commander - see, I don't need to explain - I do not need to explain why I say things. That's the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don't feel like I owe anybody an explanation." [Bush in an interview]

As commander in chief, as a war president, he could assemble his other psychological defenses around him. He could split the world into good and evil and the country would follow. His internal oppositions could be projected without much resistance from the populace or his adversaries. He could be the gut-led, divinely inspired "Decider," to save the country. He could project own internal fears of being "discovered as a fraud" into a threat "out there" waiting to happen. He could surround himself with loyalists whom he could emotionally bully, creating a new family that would admire him and that he could control. Meanwhile the ambiguities of political decisions that can always be rationalized offer a safe haven. Until history judges me (and that's a long way off, maybe never) I can't be definitively seen as incompetent.

"And we understand. And the American people are beginning to understand. This crusade, this war on terrorism is going to take a while." (16 September 2001)

It’s a crusade, as Bush has repeatedly called the ‘war on terror’, but it’s an unfortunate metaphor which only serves to arouse historical animosity and pains:

When the crusaders first arrived amid their slaughter of Arabs (and of Jews), as the remarkable Lebanese novelist Amin Maalouf reminds us in his history, The Crusades through Arab Eyes, they were looked on with horror by local Arab populations. They were feared as barbarians, as mass murderers, quite literally as cannibals. The chronicler Usamah Ibn Munqidh, would, for instance, write: "All those who were well-informed about the [crusaders] saw them as beasts, superior in courage and fighting ardour but in nothing else, just as animals are superior in strength and aggression."

"This unkind assessment," adds Maalouf, "accurately reflects the impression made by the [crusaders] upon their arrival in Syria: they aroused a mixture of fear and contempt, quite understandable on the part of an Arab nation which, while far superior in culture, had lost all combative spirit."

Americans, despite heavy competition, now look like the new barbarians of the arc of instability - and things are going to get worse. Don't think the calling of air power into downtown Baghdad is likely to be forgotten. This is the behavior of barbarians, no less so than the use of suicide bombs in Baghdad's streets.

China shoots down satellite

2007-01-21T14:08:00.000+01:00

Worrying news carried by several international media that China has the ability to shoot down objects in space. This means the country has the potential to shoot to spy or other communications satellites, which will give it an advantage in the event of a conflict with, for example, the US over Taiwan.

The test of an antisatellite weapon, which the government refused to either confirm or deny today, despite widespread press coverage and diplomatic inquiries, was perceived by regional experts as China’s most provocative military action since it test-fired missiles off the coast of Taiwan more than a decade ago. Unlike the Taiwan exercise, the main intended audience this time was the United States, the sole superpower in space.

Through energetic diplomacy, generous foreign aid and a number of lengthy policy-study white papers, Chinese officials have taken pains in recent yeas to present their country in a very different light: as a new kind of global power that, unlike the United States, has only good will toward other nations.

But some analysts said the antisatellite test showed that the reality is murkier than that. China has surging national wealth, legitimate defense concerns, and an opaque military bureaucracy that may belie its promise of a “peaceful rise.”

New York Times

Rections from around the world:

[Australian Foreign Minister Alexander] Downer expressed several concerns about the Chinese test.

"First of all, the destroyed satellite's causing damage to other satellites," Downer told reporters outside Australia's U.N. Mission after his first meeting with the new U.N. Secretary-General Ban Ki-moon.

"Secondly, it's well known that satellites have important military applications, as it raises questions about this whole issue of the militarization of outer space. ... The Chinese have always opposed the militarization of outer space, so that's why we look forward hearing what they say about the issue."

Dana Perino, deputy White House press secretary, said Friday that Chinese officials have not yet responded to concerns expressed by the U.S.

"We do want cooperation on a civil space strategy, so until we hear back from them or have more information, I don't have any more to add," she said.

Japanese Prime Minister Shinzo Abe said Tokyo has asked Beijing for an explanation and stressed the importance of the peaceful use of space.

"We must use space for peace," he told reporters. "We are asking the Chinese government about the test."

Japanese Foreign Minister Taro Aso criticized Beijing for failing to give advance notice to Tokyo. He also suggested that Tokyo doubted the test was conducted for "a peaceful use."

Yasuhisa Shiozaki, Japan's top government spokesman, suggested that China's lack of transparency over its military development could trigger suspicions about its motives in the region.

In Britain, Prime Minister Tony Blair's spokesman voiced concerns that the debris from the test could strike other satellites orbiting the earth.

"We have concerns about the impact of debris in space and have expressed that concern," Blair's official spokesman said, who spoke on condition of anonymity in line with government policy. He added "the manner in which this test was conducted is inconsistent with the spirit of China's statement to the U.N. and other bodies on the military use of space."

International Herald Tribune

The Pentagon recently warned in a report to Congress that China's military "is in the process of long-term transformation from a mass army designed for protracted wars of attrition on its territory to a more modern force capable of fighting short-duration, high-intensity conflicts against high-tech adversaries".

The report also noted that "China's military expansion is already such as to alter regional military balances. Long-term trends in China's strategic nuclear forces modernisation, land and sea-based access denial capabilities, and emerging precision-strike weapons have the potential to pose credible threats to modern militaries operating in the region".

BBC News Online

But as the BBC points out, the US alarm at the Chinese anti-satellite test smacks of hypocrisy:

But on the issue of space weapons, the US certainly risks the charge of hypocrisy.

The US has also been carrying out research on lasers that could knock out enemy satellites and the Bush administration has repeatedly ruled out the idea of a global treaty banning putting weapons in space.

Only last August, President Bush laid out a new US national space policy which said Washington would "preserve its rights, capabilities and freedom of action in space" and "dissuade or deter others from either impeding those rights or developing capabilities intended to do so".

It also threatened to "deny, if necessary, adversaries the use of space capabilities hostile to US national interests".

To some extent the announcement of that policy was clearly a response to a perceived threat from China as well as an attempt to preserve the current US advantage in space.

It may be that last week's test is an attempt by China to push back at the US and put pressure on Washington to consider negotiating a treaty to ban weapons in space.

Introducing...

2007-01-18T18:12:00.000+01:00

...the Burqini.

Yes, now fully veiled Muslim women no longer have to shy away from the beach and taking part in water-sports, because an Australia-based company developed a line of swimwear tailored for those who normally wear burqas. They come in a two sizes, and are guaranteed to be:

100% Polyester

50+ UV protected

Chlorine Resistant

Water repellent

Have Low Water Absorbency and are very very quick drying.

“China’s human rights deteriorating”

2007-01-12T14:31:00.000+01:00

No, no surprise. But as the new Human Rights Watch 2007 Report on China says:

Authorities greeted rising social unrest—marked at times by violent confrontation between protesters and police—with stricter controls on the press, internet, academics, lawyers, and nongovernmental organizations (NGOs).
[…]

The Chinese government continues to use a vast police and state security apparatus to enforce multiple layers of controls on critics, protesters, and civil society activists. Such controls make actual arrests—which draw unwanted international attention—less necessary in silencing critics.

The system includes administrative and professional pressures, restrictions on domestic and foreign movements, covert or overt tapping and surveillance of phone and internet communications, visits and summons by the police, close surveillance by plainclothes agents, unofficial house-arrests, incommunicado confinement in distant police-run guest houses, and custody in police stations. Many are charged with vaguely defined crimes such as “disrupting social order,” “leaking state secrets,” or “inciting subversion.”

I and others may be able to access this kind of information, but not internetters in China:

The “Great Firewall of China” restricts not only access to the internet, with its 123 million users in China, but also to newspapers, magazines, books, television and radio broadcasts, and film. During 2006, the Chinese government and Communist party officials moved aggressively to plug the wall’s holes and to punish transgressors. Premier Wen Jiabao justified the renewed crackdown, stating that “internet censorship is necessary to safeguard national, social and collective interests.”

Journalists, bloggers, webmasters, writers, and editors, who send news out of China or who merely debate politically sensitive ideas among themselves, face punishments ranging from sudden unemployment to long prison terms. Censors use sophisticated filters, blocking, and internet police to limit incoming information.

[…]

By their own admission, global corporations such as Google, Microsoft, Yahoo!, and Skype continue to assist in the Chinese government’s system of arbitrary and opaque political censorship in an effort to ingratiate their companies with Chinese regulators. Yahoo! released the identity of private users to Chinese authorities, contributing to four critics’ lengthy prison sentences. Microsoft and Google censor searches for what they think the government considers sensitive terms.

On the international stage, echoing concerns I expressed in a paper I wrote:

In 2006 China was elected to the newly-formed UN Human Rights Council. Its candidacy statement asserted that “the Chinese government respects the universality of human rights and supports the UN in playing an important role in the protection and promotion of human rights.” However, Chinese diplomatic efforts have focused on doing away with independent UN investigations, on the grounds that “the internal affairs” of a state should not be subject to investigation. China continues to work closely with the “like minded” group of countries, which includes Iran and Zimbabwe, to roll back important human rights protections. […]

Although the European Union and others continued to pursue human rights dialogues with China in 2006, the sessions produced no concrete results and no further movement toward ratification by China of the International Covenant on Political and Civil Rights (ICCPR).

Not just China, but the territories it (claims to) control are not faring better in the human rights situation:

Tibet

Suspected “separatists,” many of whom come from monasteries and nunneries, are routinely imprisoned. […]

On September 30, Chinese People’s Armed Police shot at a group of approximately 40 Tibetan refugees attempting to cross the border into Nepal, killing a 17-year-old nun, Kelsang Namtso, and possibly others. The rest of the group fled, though witnesses reported seeing Chinese soldiers marching approximately 10 children back to a nearby camp. The official press agency Xinhua claimed that the soldiers were “forced to defend themselves,” but film footage showed soldiers calmly taking aim and shooting from afar at a column of people making their way through heavy snow.

Xinjiang (East Turkestan)

In 2006, China intensified its efforts to use the “war on terrorism” to justify its policies to eradicate the “three evil forces”—terrorism, separatism, and religious extremism—allegedly prevalent among Uighurs, a Turkic-speaking Muslim population in China’s Xinjiang Uighur Autonomous Region.

Under current policies local imams are required to vet the text of weekly Friday sermons with religious bureaus. “Strike Hard” campaigns subject Uighurs who express “separatist” tendencies to quick, secret, and summary trials, sometimes accompanied by mass sentencing rallies. Imposition of the death penalty is common.

Hong Kong

Beijing has vetoed moves toward universal suffrage and ruled out direct elections for Hong Kong’s legislature in 2007 and for its chief executive in 2008.

In August 2006, pro-Beijing lawmakers adopted a sweeping surveillance bill allowing extensive wiretapping—including of lawyers and journalists. The government has refused to specify when it will reintroduce anti-subversion laws shelved three years ago after the largest demonstration in Hong Kong since 1989.

To be fair, this is what China has to say about the HRW report (in response to a question by a reporter):

The organization you mentioned has conducted the so-called watch on China for many years. Regrettably, though claims to watch, the organization always suffers eyesight problems some other times, it wears colored glasses or squints. Since it is deeply biased, instead of out of good will, its reports are often politically motivated with false content

In accordance with the constitutional principle of respecting and safeguarding human rights, the Chinese Government is working on promoting all-round economic and social progress, pushing forward the judicial reform as well as improving democracy and legal system so as to build a equitable, just and harmonious society and realize all-round development of human beings. China's human rights conditions have been constantly making headways. Relevant organizations should face up to China's progress in human rights, take off their colored glasses and view China in a fair and just way. Different countries have different national conditions, so it is normal for them to differ on human rights issue. We are ready to conduct dialogue with other countries on the basis of mutual respect and equality. We oppose to exerting political pressures on other countries under the pretext of human rights and interfering in other countries' internal affairs.

Yes, we are just so poorly sighted and seeing the world in pink and purple.

Welcome to the country hosting the 2008 Olympics!

Netherlands in violation of torture

2007-01-11T21:48:00.000+01:00

The Netherlands was chastised by the European Court of Human Rights in Strasbourg today for violating the prohibition on torture. The Court decided in the case of Somali asylum seeker Salah Sheekh who was threatened to be (wrongly) deported from the Netherlands, despite the fact that the circumstances in his home country threatened to expose the asylum seeker to instances of “to torture or other cruel or degrading treatment or punishment” (Article 3 of the European Convention on Human Rights).

The now 20-year-old Sheekh fled his country in 2003, after a series of violent and traumatic incidents, including rape, pillage and murder by militia members targeting members of his minority clan, which resulted in severe traumas for his family members and the death of his father. He arrived in the Netherlands, and:

18. Upon his arrival, the applicant indicated that he wished to apply for asylum. He was refused entry into the Netherlands and deprived of his liberty. He was taken to the asylum application centre (aanmeldcentrum, “AC”) at Schiphol to lodge his request for asylum (verblijfsvergunning asiel voor bepaalde tijd) on 13 May 2003. […]

His application for asylum was rejected by the (now ex-) Minister for Immigration and Integration (Verdonk):

25. By a decision of 25 June 2003, the Minister refused the applicant's asylum request. The fact that the applicant had failed to submit documents establishing his identity, nationality and itinerary was held to affect the sincerity of his account and to detract from its credibility. […]

26. The Minister further considered that the applicant had made unreliable statements as to his date of birth and his age. Although he had submitted that he was 17 years of age, an examination had shown that he was at least 20. This was also deemed seriously to affect the credibility of his account.

The application more lenient application of asylum based on trauma experienced by the applicant was also rejected, because the Minister did not believe Sheekh was not traumatised enough:

30. The Minister concluded that it had not appeared that there existed a real risk of the applicant being subjected to treatment in breach of Article 3 of the Convention upon his return to Somalia. Moreover, the applicant was not eligible for a residence permit within the framework of the leniency policy for traumatised asylum seekers (traumatabeleid), given that the alleged murder of his brother had occurred as long ago as March/April 2002 and the alleged rape of his sister as long ago as 1998 and June/July 2002.

A series of appeals to the rejection of asylum was lodged by Sheekh, but all were rejected, after which the Minister issued him with an EU Travel Document so that he can be deported back to his country.

The decision was based on a series of Country Reports compiled by the Dutch Ministry of Foreign Affairs, which deemed large parts of Somalia “relatively safe”, despite reports and complaints from the UN, Médecins sans Frontières, Amnesty International and refugee organisations to the contrary:

100. In its Position Paper on the Return of Rejected Asylum-Seekers to Somalia of January 2004, the United Nations High Commissioner for Refugees (“UNHCR”) stated, inter alia, the following:

“Throughout the country, human rights violations remain endemic. These include murder, looting and destruction of property, use of child soldiers, kidnapping, discrimination of minorities, torture, unlawful arrest and detention, and denial of due process by local authorities. ...

The challenges faced by both Somaliland and Puntland in integrating Somali refugees back home remain a critical humanitarian, recovery and development concern. In both areas, tens of thousands of returnees from exile continue to live in slums on the outskirts of towns where they are often indistinguishable from other vulnerable groups, and as such face many of the same problems accessing basic social services and becoming self-reliant.

[…]

This is true also in Somaliland and Puntland. They already host some 60,000 and 31,000 IDPs [Internally Displaced Persons, addition mine] respectively, which by far exceeds their absorption capacity. In the absence of clan protection and support, which means weak or negligible social networks, a Somali originating from another area would be likely to join the many other underprivileged IDPs who suffer from lack of protection, limited access to education and health services, vulnerability to sexual exploitation and abuse and labour exploitation, eviction, destruction and confiscation of assets. Depending on the goodwill of the local community and what meagre humanitarian assistance may be available, persons perceived as 'outsiders' may be forced to live in a state of chronic humanitarian need and lack of respect for their rights. Specifically, in Somaliland, a self-proclaimed independent state, those not originating from this area (non-Somalilanders) would be considered as foreigners, and face significant acceptance and integration problems, particularly taking into account the extremely difficult socio-economic situation of those native to the territory. ...

Thus as pointed out by the UN organisation responsible for refugees, in large areas of Somalia, any one who is not a member of the same clan / ethnic group (like Sheekh who is of the minority Ashraf group) will be subject to prejudice, hardship and even physical violence. And especially in a ‘state’ like Somalia where the government has collapsed and lost all functions of guaranteeing maintaining peace and security, people and property are basically protected by the good-will and recognition of people of the same ethnic / clan background.

108. In this report, published on 17 March 2005, Amnesty International […] states as follows:

“The minority groups, who have no armed militias, have been extremely vulnerable during the period of state collapse and absence of a justice system and rule of law to killing, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and clan members. Such incidents are still commonly reported and are being documented by local human rights NGOs.”

The Court, weighed the argument by Sheekh that he would be subject to dangers and threats to life and property if deported against the argument of the Dutch government that there is no such danger in the “relatively safe” areas. In construing the nature of the obligation enshrined in the European Convention on Human Rights, Contracting Parties (of which the Netherlands is one):

135. [have] the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. […] However, in exercising their right to expel such aliens, Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies and prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct, however undesirable or dangerous. The expulsion of an alien may give rise to an issue under this provision, and hence engage the responsibility of the expelling State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country […] [emphasis mine]

139 […] Nevertheless, there is a marked difference between the position of, on the one hand, individuals who originate from those areas and have clan and/or family links there and, on the other hand, individuals who hail from elsewhere in Somalia and do not have such links in Somaliland or Puntland. […] As far as the second group is concerned, however, the Court is not persuaded that the relevance of clan protection in the “relatively safe” areas has diminished to the extent as suggested by the Government. It notes in this respect that as regards the expulsion of a Somali national to a part of the country from where he or she does not originate, UNHCR is of the opinion that “considerations based on the prevailing clan system are of crucial importance” (see paragraphs 100 and 102 above). Clan affiliation has further been described as the most important common element of personal security across all of Somalia (see paragraph 105 above), and thus not merely in the “relatively unsafe” areas.

146. The Court considers that the treatment to which the applicant claimed he had been subjected prior to his leaving Somalia can be classified as inhuman within the meaning of Article 3: members of a clan beat, kicked, robbed, intimidated and harassed him on many occasions and made him carry out forced labour. Members of the same clan also killed his father and raped his sister (see paragraphs 7-9 and 12-13 above). The Court notes that the particular – and continuing – vulnerability to this kind of human rights abuses of members of minorities like the Ashraf has been well-documented (see, for instance, paragraphs 103-104 above).

This is a special case, because usually before going to the Human Rights Court in Strasbourg, the applicant must exhaust all local remedies, meaning that he must have gone through all the appeal courts right up to the highest court (in the case of the Netherlands, the Administrative Division of the Council of State [Afdeling Bestuursrechtspraak Raad van State]). The Court however said that in the light of previous cases dealing with asylum, “in practice a further appeal would have stood virtually no prospect of success”. So Sheekh could bbypass this procedural requirement of exhaustion of local remedies (paras. 119-127)

Sheekh has been given a residence permit and is permitted to stay in the Netherlands.

Nazanin

2007-01-08T21:32:00.000+01:00

Just got this petition from a friend. An eighteen year old Iranian girl faces the death sentence for unintentionally stabbing to death one of three men who tried to rape her and her niece.

Urgent action is needed to help save a young life whose only crime was an attempt to defend herself. Nazanin and many like her are caught between two undesirable options. On one hand, Iranian Penal Code severely limits the possibility of using 'self-defense' as a legitimate defence to aggression. On the other hand, if Nazanin had allowed the rape to take place, she could still be imprisoned, flogged or stoned for having sex outside of marriage unless four male witnesses to the actual rape would testify on her behalf.

More coverage here.

Far-right in EP

2007-01-08T20:28:00.000+01:00

First, after numerous concessions, and turning a blind-eye to economic and social woes of the two new members of the European Union, Bulgaria and Romania were allowed to (limp) in.

And now it appears the new members will be bringing some ‘contribution’ to the EU:

The European Parliament looks set to have the first far-right grouping within its corridors by mid-January, with MEPs from new member states Bulgaria and Romania helping to make the formation possible.

Under EU rules, there need to be at least 19 MEPs from five different member states for a political group to be formed.

[…] the group is likely to have at least 20 members and will have a "minimal consensus" programme being broadly against immigration, against Turkey's EU membership, against the EU constitution for its "tendencies...towards a central government."

The loose programme marks the disharmony between the different national elements with one of their main motives for forming a group being to get more say in the European Parliament.

"It is more a technical than a political group," Alessandra Mussolini, grand daughter of the facist Il Duce, told APA.

"We are mainly getting together out of necessity. Survival is only possible in a political group," she added, referring to the fact that groups have a right to more funds and political positions in the European Parliament, something non-attached MEPs do not have.

And I thought one of the fundamental conditions of EU membership was to eliminate racial discrimination and respect human rights and freedoms in the aspirant member state.

The far-right parties of Bulgaria and Romania are set to join other parties across Europe, including the French Front National and Belgian Vlaams Belang, and the UK’s (far-right) British MP Ashley Mote. The latter recently had this to say about how, in the light of the fading true meaning of Christmas, Britain is losing its identity because:

This may be Christmastime, but I bring you a bleak message. And it is too important to ignore.

In a nutshell, it is this: the indigenous population of this country will be in a minority within fifty years, unless huge changes are made, and fast.

The Britain we know and love, and our way of life, faces destruction. The threat comes from within.

[…]

We have a responsibility to pass our inheritance on to our children, and to their children. We surely don’t need reminding of the millions of lives laid down to protect and preserve these precious rights and freedoms, which today are our birthright as British subjects.

There is much to do, and no time to lose.

Our only claim to the British Isles is that we are here. Our forebears settled and developed it. We now control it – at least for the moment – and we must defend it or lose it.

Worrying.

See “Far-right MEPs set to join forces”
Report on Bulgaria and Romania’s compliance with EU acquis (standards).

Wish for the new year

2007-01-02T01:28:00.001+01:00

May all beings be happy,
May all beings be peaceful,
May all beings be harmonious,
May all beings be liberated,

May all beings be filled with compassion,
May all beings be filled with loving-kindness.
May all beings be free from all kinds of suffering.

Fireworks at Taipei101

2007-01-02T01:27:00.000+01:00

The annual New Year’s firework display at Taipei 101! I was there last year, and it’s pretty amazing to see it live! (scroll down to the bottom of the page!)

Peace to the world

2006-12-31T12:39:00.000+01:00

Woke up this morning to this song on the radio.
There's no better way to bid farewell to the old year, and welcome the new.

May there be peace on earth.

Morgen zal het vrede zijn
(Marco Borsato)

Door kapotgeschoten straten,

zonder vader zonder land.

Loop je hulpeloos verlaten

aan je moeders warme hand.

Als een schaap tussen de wolven,

haar bestemming onbekend.

En niemand ziet hoe klein je bent,

niemand ziet hoe klein je bent.

Morgen zal het vrede zijn.

Zal de zon je strelen.

Zal de wereld weer een speeltuin zijn,

en kun je rustig spelen.

Na de winter komt de lente,

wordt de grijze lucht weer blauw.

Maar al ben je uit de oorlog,

gaat de oorlog ooit uit jou?

Mooie ogen zijn vergiftigd,

zijn aan het geweld gewend.

En niemand ziet hoe klein je bent,

niemand zien hoe klein je bent.

Tomorrow it shall be peace

Through bullet-ridden streets,

With no father, with no country,

You helplessly walk alone,

In your mother’s warm hand.

Like a sheep between the wolves,

Its destination unknown.

And no one sees how small you are,

No one sees how small you are.

Tomorrow it shall be peace,

The sun shall caress you.

The world shall be a playground again,

And you can calmly play.

After the winter comes the spring,

The gray sky becomes blue again.

But even if you were away from the war,

Is the war ever away from you?

Beautiful eyes are poisoned,

Are used to the violence.

And no one sees how small you are,

No one sees how small you are.]