Friday, July 23, 2010

A new State is (legally) born?

  1. The "Kosovo" Advisory Proceedings
  2. Practical information for attending the 22 July 2010 session
  3. FAQ on ICJ Advisory Proceedings PDF
  4. The ICJ at a glance PDF
  5. Contact

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 20th 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 21st 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.

    Wednesday, August 08, 2007

    Enough is enough!

    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”!

    Tuesday, August 07, 2007

    "One World, Different Dreams"

    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.


    And you will see.

    More cartoons here.

    Saturday, July 28, 2007

    "Taiwan applies for UN membership"

    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”.


    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

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