Sunday, June 4, 2017
States agree to develop an international regulatory framework on private military and security companies
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States agree to develop an international regulatory framework on private military and security companies
On 24 May 2017, States at the UN reached an agreement to prepare an “international regulatory framework” to protect human rights and ensure accountability for violations and abuses relating to the activities of private military and private security companies (PMSCs).
The agreement, reached at Working Group level, has still to be ratified by the full UN Human Rights Council.
It would be the first universal international instrument on human rights and private security companies negotiated and adopted at the UN.
This could pave the way to further developments towards increased monitoring and accountability of the private security industry.
The agreement constitutes a landmark achievement. The intergovernmental Working Group over the past six years have been mired in circular debates as to whether or not it is desirable to develop a legally binding instrument on PMSCs.
Last’s week agreement leaves aside for the moment the decision about the nature of the instrument and will instead allow for a constructive focus on the contents of the future instrument.
Activities of private and military security companies became the object of heightened international scrutiny particularly after events in the context of the armed conflict in Iraq over the past decade.
These include unlawful killings at Nisoor Square and torture and ill-treatment at Abu Graib prison.
A Working Group of experts on mercenary activity appointed by the UN Human Rights Council started to look at the issues in 2007, generating proposals for international instruments to fill perceived regulatory gaps.
Many States have now accepted that the absence of an international regulatory framework combined with limited or non-existent regulation at national level offers a “breeding ground” for human rights abuses committed by PMSCs.
The main clients of these companies are governments that contract them to carry out specific functions, including some that many believe should remain firmly in the hands of public officials.
One key issue that the future instrument should address is the circumstances under which PMSCs can be considered to act on behalf of the State when they are contracted to perform functions that are typically State functions.
International law already governs some aspects of PMSC activity. International human rights law provides for a general obligation of States to protect against the adverse consequences of PMSC activity.
There has also been other international regulatory activity outside of UN auspices in this area.
In 2008 a select group of mostly Western States led by the Government of Switzerland and the International Committee of the Red Cross (ICRC) elaborated the Montreux Document on pertinent obligations for States regarding PMSCs.
Other initiatives such as a Code of Conduct for the PMSCs themselves followed suit. But many States and civil society organizations regard these initiatives as insufficient and lacking the universality afforded by UN processes.
One notable weakness in current approaches is the dearth of standards and mechanisms squarely addressing accountability of private security industry and to ensure access to remedy for those victims of abuse.
Experience shows that States legal frameworks have limited effectiveness when abuses occur at the cross-border level, involving more than one company in more than one jurisdiction, especially in conflict or post-conflict environments.
The prospective international regulatory framework should surely build on existing initiatives, research and findings.
To that end, broad participation by all stakeholders should be ensured.
In this regard, participation of civil society and NGOs specialized in human rights has not been optimal so far.
States leading this new process should make all and every effort to fill that gap, ensuring that international and national civil society receive timely information and facilities for meaningful participation.
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Egypt: repeal draconian NGO law and protect the right to freedom of association
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Egypt: repeal draconian NGO law and protect the right to freedom of association
The ICJ today called on the Egyptian authorities to act immediately to repeal the law on civic associations.
The law was adopted by Egypt’s Parliament on 15 November 2016 and signed into law by President El-Sisi on 29 May 2017.
Until the law is repealed, the authorities should desist from enforcing it, the ICJ says.
The law effectively prohibits most Egyptian human rights non-governmental organizations (NGOs) from registering and working in Egypt, stipulating that civic associations’ work shall take place in the fields of development and social welfare consistent with “the State’s plans and its developmental needs and priorities.”
Egyptian and international NGOs are also forbidden to advocate against any law or its implementation, as well as to carry out “political activities” or any that “harm national security, public order, public morals or public health.”
They are prohibited from conducting public surveys, research or reports without permission and approval of the results of such work must be given by the authorities prior to publication (articles 14, 87).
The law also provides for an entity to be formed by presidential decree from representatives of three security bodies, which will decide on all matters related to NGO funding, the registration and issues relating to the work of international NGOs, and cooperation between Egyptian associations and any foreign body.
“The law on civic associations, if implemented in its present form, would be tantamount to an official death certificate of independent civil society in Egypt,” said Said Benarbia, ICJ Middle East and North Africa Director.
“By signing it into law, President El-Sisi is silencing the very organizations that could act as a check on the abusive and arbitrary exercise of his power,” he added.
The adoption of this repressive law is just the latest measure in a sustained, relentless campaign by Egypt’s military and executive authorities aimed at dismantling Egyptian civil society through highly politicized judicial proceedings and arbitrary travel bans against NGOs and human rights defenders.
For instance, the foreign funding case taken against NGOs (no. 173/2011) saw leading Egyptian human rights organizations, such as the Cairo Institute for Human Rights Studies (CIHRS), the Arabic Network for Human Rights Information (ANHRI) and the Hicham Mubrak Law Center (HMLC), subject to arbitrary investigations.
The grounds included “receiving funds to harm national interests and destroy the basic foundations of the state (the army, police, and judiciary),” “establishing an entity operating as a civic association without official registration,” and “income tax evasion.”
Four of these organizations and six NGO directors/board members have been subjected to asset freezes.
In the last two months, many NGO staff and directors have been summoned for interrogation by investigative judges, including ICJ partners Mustapha El-Hassan, Director of HMLC, Gamel Eid, Founder and Director of ANHRI, and Mohamed Zaree, CIHRS’ Programme Director and short-listed candidate for the Martin Ennals Award 2017.
The ICJ has previously documented how the Egyptian authorities have used the justice system as a repressive tool in their efforts to silence many of those suspected of opposing them.
“Egyptian authorities must comply with their obligations under international law and put an immediate end to their campaign to silence human rights defenders and NGOs. A first step in that direction would be the immediate repeal of the law on civic associations,” Benarbia said.
Contact
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41 22 979 38 17: said.benarbia(a)icj.org
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Supreme Court overturns 9th Circuit 'provocation rule' that expanded police liability
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The U.S. Supreme Court has overturned a “provocation rule” developed by the San Francisco-based 9th U.S. Circuit Court of Appeals that gave victims of police shootings an additional route to sue for alleged excessive force.
Justice Samuel Anthony Alito Jr. wrote the opinion (PDF) for a unanimous court. Justice Neil M. Gorsuch didn’t participate in the case.
The rule had held that police who use force not deemed excessive may be liable nonetheless because they provoked the victims to respond in a way that makes officers reasonably fear for their safety. Under the rule, the provocation had to be a separate Fourth Amendment violation.
The rule “provides a novel and unsupported path to liability” and is incompatible with the court’s excessive force jurisprudence, Alito wrote. “The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” Instead, Alito said, such cases should be resolved using a proximate cause analysis.
Alito ruled in a case brought against Los Angeles County and two of its deputies. The two plaintiffs had been living in a shack when they were shot by police who raided the structure—without a warrant and without knocking—while looking for a wanted parolee.
Angel Mendez had a BB gun to kill rats, and he was holding it when the officers entered. Both officers opened fire, seriously wounding Mendez and his pregnant companion, a woman he later married. Mendez and his wife were awarded $4 million in damages.
Alito noted that the provocation rule may be motivated by the notion that it is important to hold police officers liable for the foreseeable consequences of their constitutional torts.
“However, there is no need to distort the excessive force inquiry in order to accomplish this objective,” Alito said. “To the contrary, both parties accept the principle that plaintiffs can—subject to qualified immunity—generally recover damages that are proximately caused by any Fourth Amendment violation.”
If the plaintiffs in the case before the court can’t recover on their excessive force claim, they still might be able to recover for injuries proximately caused by the warrantless entry, Alito said.
Alito said the issue should be revisited on remand.
The case is Los Angeles County v. Mendez.
Related article:
ABAJournal.com: “Supreme Court accepts police shooting case involving 9th Circuit’s ‘provocation’ rule”
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Saturday, June 3, 2017
Seamen's group files graft case versus Marina officials | Inquirer News
See - Seamen's group files graft case versus Marina officials | Inquirer News
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A seamen’s group has filed a graft complaint against several Maritime Industry Authority officials for alleged “arrogation of authority” in the implementation of a Palace order giving incentives in the use of brand new vessels.
In an 11-page complaint filed Monday at the Office of the Ombudsman, the United Filipino Seafarers sought graft charges and administrative sanctions against current administrator Marcial Quirico Amaro III and nine former Marina officials.
The complaint assailed the approval of Marina Circular No. 15-04, which serves as the implementing rules and regulations of Executive Order No. 909, series of 2010, issued in 2010 by then president Gloria Macapagal-Arroyo.
UFS, led by its president Nelson Ramirez, accused Marina of bestowing upon itself the authority to grant “pioneer status” to brand-new vessels classed by the International Association of Classification Societies. This entitles the shipowner to incentives, tax holidays and fee discounts.
UFS has claimed the Board of Investments has the duty to evaluate and accept applications to avail of the “pioneer status,” because EO 909 granted that perk “as defined” under the Investment Priorities Plan for 2009 prepared by the BOI.
“Nowhere in EO 909 does it state that MARINA may grant ‘Pioneer Status’ to qualified ship owners and operators. It was excluded because that power is vested exclusively with BOI,” the complaint read. “Respondents’ approval of MC 2015-04 took this power away from BOI and arrogated it to MARINA.”
The complaint added that the Marina circular unduly expanded the coverage of EO 909, which it said only granted a 50-percent discount on processing fees as a six-year protection of investment.
UFS said the Marina circular was anomalous for inserting a six-year moratorium on the deployment of ships in routes used by the “pioneer status” grantees.
Thus, UFS accused the Marina officials of violating Section 3(e) of the Anti-Graft and Corrupt Practices Act for causing undue injury to the government and giving unwarranted benefits to private parties.
They were also accused of the administrative offenses of grave abuse of authority, grave misconduct and conduct prejudicial to the best interest of the service.
Amaro was named respondent as the current implementor of the circular, having granted “pioneer status” to several applicants.
His fellow respondents include former administrator Dr. Maximo Mejia Jr., former deputy administrator for operations Gloria Banas, and former board members Benel Lagua, Jonathan Tariman, Hector Miole, Rommel Antonio Cuenca, Emma Panopio, Dario Alampay and Roberto Umali. SFM/rga
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Read more: http://newsinfo.inquirer.net/900929/seamens-group-files-graft-case-versus-marina-officials#ixzz4ixGOo9uP
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France announces law to eliminate prison terms for marijuana usage
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[JURIST] The government of France, under its newly elected president Emmanuel Macron [official website], announced its intention on Friday to introduce [Inquirer.Net report] a law ending prison terms for marijuana usage by the end of the year, although marijuana consumption will remain a criminal offense. Macron had promised during his campaign to reform cannabis laws upon becoming president. Under current law [PDF, in French], offenders face up to a year in jail and fines of up to €3,750 (US $4,200). In 2016 alone, 180,000 French citizens were found to be in violation of drug laws. According to government spokesperson Christophe Castaner [official website], drug violation cases consume an average six hours of police time and another six hours of judicial resources. Police unions welcomed the simplified judicial process and Patrice Ribeiro of the police officers union stated that it was "a good idea that takes reality into account." French magistrates were less enthusiastic about the reformed measures with Virginie Duval, representative of the magistrates union, stating "[the law] won't change much and it's not going to unclog the courts."
According to the French Observatory for Drug Use and Addiction [official website], in 2014, 17 million French citizens admitted to taking cannabis at some point in their lives with 700,000 admitting to use it daily. There has been a recent surge, both around the world and within the US, in the move to decriminalize, legalize, or otherwise relax regulations on the usage or consumption of marijuana. In February the lower house of the Dutch parliament approved a bill [JURIST report] that would permit the cultivation of cannabis. In January Maine's governor signed [JURIST report] a moratorium bill that delayed the legal sale of marijuana by retailers for one year, although still allowing personal possession of marijuana by those 21 and older. In April Mexico's president proposed [JURIST report] a bill relaxing laws on marijuana usage. In December 2015 Colombia's president legalized [JURIST report] medical marijuana. In June 2015 Canada's top court lifted [JURIST report] a restriction that the only acceptable form of medical marijuana was smoking the dried plant.
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U.S. Ratification of the Law of the Sea Convention | The Diplomat
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U.S. Ratification of the Law of the Sea Convention
Measuring the raison d’État in the Trump era.
May 24, 2017
When at the steps of the Louvre, turn your gaze toward Rue de Rivoli, to a work of Parisian art, the Palais-Royal (originally the Palais-Cardinal), the former residence of Cardinal Richelieu. Richelieu is credited with articulating the principle of raison d’État, the national interest, as a transcendent entity, an ideal above and beyond the private concern of statesmen. As Louis XIII’s chief minister, during the religious wars of the 17th century, he rose above confessional loyalties, allying Catholic France with Protestant powers in order to maintain the European balance of power. In the Testament Politique, Richelieu’s political manual, he observed: “The public interest must be the sole end of the prince and his councilors.”
In Washington today, we have the opportunity to assess the raison d’État as defined by the current U.S. leadership: the new Trump administration and a Republican-controlled Congress. One significant measure will be whether the United States finally ratifies the United Nations Law of the Sea Convention (“UNCLOS” or the “Convention”), the comprehensive treaty regime that governs activities on, above and below the world’s oceans. Although the United States was an original architect of the treaty, Senate advice and consent to ratification has remained stalled through three successive presidential administrations. For more than 20 years the national interest has fallen victim to the confessional nature, the hardened doctrinarism, of modern American politics.
Now a powerful tide of populism has swept over the banks of the Potomac – one that is suspicious of globalization, international law, and technocratic bodies. In this context, can Congress elevate the national interest above narrow partisan aims? Will President Donald J. Trump exercise the necessary leadership to realize an objective that has eluded his White House predecessors? Only Washington can address these questions. Make no mistake, though, the answers will have a global ripple effect, from the melting plates of the Arctic Ocean to the choppy waves of the South China Sea.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Outside Looking In
Following nearly a decade of negotiations, UNCLOS was completed on December 10, 1982 at Montego Bay, Jamaica. Even at that time, the United States refused to sign the treaty. The United States, along with other industrialized states, took issue with aspects of the treaty (Part XI), which dealt with deep seabed resources beyond national jurisdiction. Largely at Washington’s instigation, negotiations continued and resulted in the Agreement relating to Implementation of Part XI of the Convention (1994 Agreement), completed in New York, July 28, 1994.
Determining that the remaining deep seabed issues were resolved, on October 7, 1994, President Bill Clinton transmitted the Convention and the 1994 Agreement to the Senate for advice and consent. On November 16, 1994, UNCLOS entered into force, but without accession by the United States. The 1994 Agreement entered into force on July 28, 1996, also without U.S. ratification. To date, the treaty remains one of forty-five treaties (one dating back to 1945) awaiting Senate action – once referred to as the “world’s greatest deliberative body.”
As a result, the United States remains off the list of 168 state parties to UNCLOS, a list which includes all other major maritime powers such as Russia and China. In practice, the United States has accepted and complies with nearly all the treaty’s provisions. On March 10, 1983, President Ronald Reagan issued the United States Oceans Policy Statement, supported by National Security Decision Directive 83, which documents the U.S. view that UNCLOS reflects customary international law and fulfils U.S. interest in “a comprehensive legal framework relating to competing uses of the world’s oceans.” Successive presidential administrations – Republican and Democrat – have relied upon Reagan’s precedent to legitimize and guide the Freedom of Navigation (FON) Program in global hot spots like the South and East China Seas.
So even as the United States invokes UNCLOS to assert the freedom of navigation and challenge excessive maritime claims, Washington has no seat at the table in protecting U.S. rights and claims within the treaty’s institutional framework. As a non-party, Washington remains on the outside looking in as the international community moves forward in defining the legal landscape affecting over 70 percent of the world’s surface.
Identifying the National Interest
To the extent that the United States relies on custom to protect its interests, there is some benefit to free riding from the UNCLOS regime. As I have written in these pages, however, the law of the sea has not followed a linear progression and customary international law is subject to contestation. Moreover, arguments against accession ignore the significant costs that the United States has incurred and continues to pay by remaining a non-party. Put another way, in determining the national interest, we have to fully account for the material advantages provided by accession to the Convention.
Ratification will give the United States a direct voice in UNCLOS bodies like the International Tribunal for the Law of the Sea, the Commission on the Limits of the Continental Shelf, and the International Seabed Authority. For instance, at a recent gathering at the American Society of International Law (ASIL), Douglas Burnett, a maritime attorney and advisor to the International Cable Protection Committee, explained that, in the current landscape, U.S. telecommunications companies are forced to seek foreign state sponsors to voice their concerns in UNCLOS disputes over undue interference by coastal states to the freedom to lay undersea cables. An estimated 98 percent of worldwide internet data is transmitted through the web of fiber optic cables lying on the ocean floor, which are the arteries of the global economy, and, therefore, a significant U.S. concern.
In addition, UNCLOS reflects current U.S. policy with respect to living marine resource management, conservation, and exploitation. For example, from within the treaty, the United States can more effectively exert its leadership in managing depleted fish stocks, which migrate internationally across maritime zones and the high seas. Organizations as disparate as the World Wildlife Fund and the U.S. Chamber of Commerce have strongly supported U.S. accession. According to John Norton Moore, director of the Center for Oceans Law and Policy at the University of Virginia, since the U.S. already follows the treaty, the costs of compliance are insignificant, particularly when weighed against the U.S. capacity to influence institutional development in global maritime policy.
More broadly, the UNCLOS regime is part of the bedrock of the U.S.-led liberal order. As G. John Ikenberry argued in After Victory, since the Congress of Vienna, leading states have employed institutional strategies as mechanisms to establish restraints on arbitrary state power and embed a favorable and resilient international system. In this instance, the Convention and 1994 Agreement were negotiated during a time of U.S. ascendance and Western unity in international affairs. At ASIL, Myron Nordquist, Associate Director of the Center for Oceans Law and Policy, expounded on how UNCLOS reflects important U.S. interests regarding restraints on economic exclusive zone, continental shelf resources, innocent passage across the territorial waters, the passage rules for transiting straits and archipelagic sea lanes, and, of course, the high seas freedoms. U.S. ratification will serve to “lock in” these advantages, negotiated by the United States from a position of primacy in world affairs.
The strategic necessity of preserving U.S. national interests via accession to UNCLOS is most evident in the evolving waters of the Artic and South China Sea.
The Arctic and South China Sea
Climate change is heating up the race for the Arctic as receding sea ice gives way to increasing human activity. In addition to advancing new sea lanes, nations bordering the Arctic Ocean are seeking to develop offshore resources, particularly in the energy sector. UNCLOS (Part VI) gives the coastal state sovereign rights over the resources of its continental shelf. The Convention also permits a coastal state with a broad continental margin to establish a shelf limit beyond 200 nautical miles, subject to the review and recommendations of the Commission on the Limits of the Continental Shelf. Accordingly, the five Arctic coastal states – the United States, Canada, Russia, Norway, and Denmark (via its Greenland territory) – have made or are in the process of preparing submissions to the commission.
Given that the United States has not ratified UNCLOS, U.S. nationals may not serve as members of the Commission on the Limits of the Continental Shelf. It is not clear whether the United States, as a non-state party, can even make a legally recognized submission to the commission to assert its claim and fully protect its proprietary rights and energy interests. In contrast, Russia, which may be entitled to almost half of the Artic region’s area and coastline, has already made its submission for vastly extending its continental margin, including a claim to the Lomonosov Ridge, an undersea feature spanning the Arctic from Russia to Canada. Russia and Canada are the two countries with which the United States has potentially overlapping extended continental shelf claims.
This maritime boundary dispute is no small matter. The U.S. Geological Survey estimates that the Arctic holds 22 percent of the world’s undiscovered oil and gas, amounting to more than 412 billion barrels of oil equivalent. Legal certainty in maritime delimitation is critically important for Arctic states and their respective energy companies. On June 8, 2012, Rex Tillerson, as chairman and CEO of ExxonMobil, wrote to the Senate Foreign Relations Committee to vociferously urge U.S. accession to UNCLOS:
“Perhaps the best example of the need for certainty in an area with great unexplored potential involves the Arctic Ocean…Several countries, including the United States, are provided with a claim to extended exploitation rights under the application of UNCLOS in the Arctic. The legal basis of claims is an important element to the stability of property rights.”
In the absence of treaty ratification, Tillerson noted that the United States suffers from the dual disadvantage of having both a cloud over the international status of U.S. claims and a weakened ability to challenge other states’ conflicting claims.
As a sovereign state, the United States can object to overlapping claims and take action in the Arctic consistent with international law. Awkwardly, however, arguments against UNCLOS ratification must turn to support from the International Court of Justice, which has ruled (Nicaragua v. Columbia, 2012) that continental shelf rights exist as a matter of fact and do not need to be expressly claimed. Even if custom provides one remedy, a contract is better than a handshake – more so in a world of power and interdependence. Moreover, the Arctic coastal states, including the United States, have positively affirmed that the law of the sea provides the “legal framework” for resolving overlapping territorial claims. Intergovernmental bodies like the Arctic Council, while useful for multilateral cooperation, lack authority for resolving territorial conflicts. As the future secretary of State, Tillerson, wrote to the Senate: “UNCLOS can provide an efficient, comprehensive legal basis for the settlement of these conflicting claims, thus providing the stability necessary to support expensive exploration and development.”
The South China Sea is another area of heated contestation where UNCLOS serves as the guidepost for clarity. Of notable importance is the ruling from the South China Sea arbitration that UNCLOS comprehensively allocates rights to maritime areas thereby precluding historic claims like China’s “Nine-Dash Line.” From this principle, the arbitral tribunal systematically refuted China’s extensive claims and actions in the South China Sea beyond the treaty’s carefully crafted limitations. In the view of Washington, these limitations include undue attempts to curtail the freedoms of navigation and overflight in exclusive economic zones (EEZs). Notably, China takes an opposing view and asserts the ability to prohibit foreign military operations in its claimed EEZs. Thus, although the United States remains neutral on competing claims in the South China Sea, Washington has a compelling national security interest in upholding the substance of the arbitral tribunal’s ruling.
Source: U.S. Department of State
Like U.S. claims in the Arctic, the United States’ legal rights in the South China Sea are not academic. As reported by Ronald O’Rourke, a U.S. naval affairs analyst, the EEZ legal dispute between Washington and Beijing has led to significant confrontations between Chinese and U.S. ships and aircraft in and above international waters. For example, in August 2014, a Chinese J-11 fighter dangerously intercepted a U.S. P-8A Poseidon, a naval reconnaissance aircraft, operating in the South China Sea approximately 117 nautical miles east of Hainan Island. Thanks to the arbitral tribunal’s artful debunking of the nature of Chinese-claimed maritime features and related entitlements, there is greater legal clarity on U.S. operational rights in the South China Sea. By formally joining UNCLOS, the United States will be in a stronger position to support the ruling of the arbitral tribunal in the face of Chinese opposition.
More broadly, because substantial portions of the world’s oceans are claimable as EEZs, universal adoption of the Chinese position would significantly alter the U.S. military’s ability to sail and fly worldwide. These debates over high seas freedoms and EEZs are likely to continue. For example, as I wrote in the Harvard National Security Journal, the so-called “Castaneda formula” under UNCLOS (Article 59) opens the door for further articulation of EEZ functional jurisdiction and any potential limitation on the high seas freedoms. Defining “residual rights” requires interpreting what rights are included in the text as well as what rights are omitted. The United States can more effectively anticipate and shape these debates impacting U.S. national security as a state party to UNCLOS.
In a twist, U.S. opponents of ratification may view the South China Sea case as supporting their position for remaining outside of UNCLOS. One of Beijing’s chief objections was that the arbitral tribunal should not have intervened, arguing that the dispute essentially involved delimiting maritime boundaries, which would fall outside compulsory dispute settlement pursuant to a declaration China made under UNCLOS (Article 298(1)(a)(i)). As I explained in these pages, the arbitral tribunal was careful to limit its discretion to determining whether certain Chinese-claimed features – particularly in relation to the Spratly Islands and Scarborough Shoal – could generate maritime entitlements as high-tide features.
The arbitral tribunal, however, could have declined to even rule on these issues in light of the impact an analysis on maritime features and entitlements would implicitly have on Chinese boundary claims. By analogy, under the U.S. legal system, courts defer certain “political questions” because the matter is considered unsuited to judicial inquiry, and more constitutionally appropriate for settlement by the political branches. While the arbitral tribunal may have been technically correct on the legal merits in the case, UNCLOS faced a greater institutional harm if China had followed through on Beijing’s threat to withdrawal from the treaty. The fact that China did not withdraw suggests that the balance of interests favored continued participation in UNCLOS, a calculus that could further tilt as Beijing advances its blue-water navy.
U.S. critics of UNCLOS may perceive the South China Sea scenario as prime evidence of meddling by an international court. Myron Nordquist offered a hypothetical in which the United States ratifies and submits a similar declaration, but in relation to excluding disputes over military activities from compulsory dispute settlement (Article 298(1)(b)). Despite such a declaration and U.S. objections, an international tribunal may attempt to intervene in a dispute where another state party challenges U.S. FON operations in its EEZ. Even if you believe that this fact pattern seems improbable, American opponents of UNCLOS and international law may seize upon the South China Sea arbitration as a dangerous harbinger.
During his confirmation hearing, Secretary Tillerson backed away from his 2012 letter, acknowledging domestic critics of international courts. General James Mattis was similarly circumspect before the Senate. Even the abstract threat of international court jurisdiction results in theatrics in American politics. To recall, in response to the Rome Statute, Republican Senator Jesse Helms sponsored the American Service-Members Protection Act, which was affectionately called the “The Hague Invasion Act.” There are those in Beijing that may share the late senator’s sentiments.
The Domestic Trump Card
For a White House under siege, UNCLOS ratification may present an opportunity for a specific foreign policy achievement. After all the United States is engaged in an unequal bargain: adhering to the terms of UNCLOS without enjoying the benefit of shaping the treaty’s rules or institutions. In contrast, if the Trump administration were to oppose UNCLOS ratification it would be a remarkable and deplorable break in bi-partisan presidential leadership.
Even assuming the Trump administration’s support, accession will not come easily. According to a Congressional report, in the course of U.S. history, only 1,100 treaties have been ratified in comparison to over 18,500 reported executive agreements. Senate inaction has proven to be a very effective veto. Even treaties that flow from American leadership, in areas like protecting rights for persons with disabilities, are rejected. As such, treaty ratification would be a monumental (and surprising) legacy-builder for Trump.
Global frameworks like UNCLOS are also exceptional events in international affairs. Advocates and opponents of U.S. accession both acknowledge that the terms of UNCLOS would be impossible to negotiate today. In my view, this reality demonstrates the wisdom of locking-in U.S. gains and the importance of establishing international institutions capable of maintaining validity in a changing geopolitical environment. Treaty-making and diplomacy require a certain “suppleness,” to borrow from Ruth Wedgwood, Professor of International Law and Policy at the John Hopkins School of Advanced International Studies. U.S. participation could strengthen UNCLOS by ensuring that new life is breathed into the document’s text, consistent with U.S. interests.
Unfortunately, America’s political environment is characterized by a rigidness and polarization that defy supple solutions for U.S. accession to UNCLOS. The current populist strain is characterized by a faith in strong leaders, a disdain of perceived limits on sovereignty and a distrust of powerful international institutions. Criticism of international law has taken on a religious fervor, become an emotional calling. The South China Sea case may only prove the ideological point of UNCLOS detractors, no matter how shortsighted.
Perhaps in this Trump era, only a figure like Donald Trump can lend legitimacy to a complex global undertaking that is in the U.S. national interest. In other words, a populist dealmaker may be required to overcome the trump card of domestic politics in this vital area of U.S. foreign policy. This scenario will require decisive presidential leadership (bigly) and a clear view of the national interest in Washington.
If Richelieu were able to roam the halls along Pennsylvania Avenue, would his Red Eminence be able to find what he described as the “torch of reason” – the light that must guide the conduct of princes and their states? During the Thirty Years’ War, the stakes were high and politics unforgiving, but Richelieu’s vision of the raison d’État provided grounds for a future Westphalian peace. Fortunately, we need not resort to hypotheticals to assess U.S. leadership and the national interest in the Trump era. Whether the United States ratifies UNCLOS will provide us the measure we seek.
Roncevert Ganan Almond is a partner at The Wicks Group, based in Washington, D.C. He has advised the U.S.-China Economic and Security Review Commission on issues concerning international law and written extensively on maritime disputes in the Asia-Pacific. The views expressed here are strictly his own.
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UN appoints Indian rights lawyer to lead Rohingya investigation
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[JURIST] The UN Human Rights Council on Tuesday appointed [press release] an Indian human rights lawyer and two fact-finding experts to investigate Myanmar security forces' alleged crimes against Rohingya Muslims. Indira Jaising, an advocate of the Supreme Court of India [official website], will be the lead investigator [Reuters report]. The other two members are Sri Lankan lawyer Radhika Coomaraswamy and Australian consultant Christopher Dominic. In February [JURIST report], the UN Office of the High Commissioner for Human Rights [official website] said that Myanmar security forces' treatment of the Rohingya Muslims likely constitutes crimes against humanity and possibly ethnic cleansing. The investigation's findings are to be presented at the UN Human Rights Council [official website] in September, with a full report to be reported in March 2018.
Human rights violations have been on the forefront of Myanmar's new democratic government since ending a decades-old military rule. In June of last year a UN expert presented [JURIST report] a report on religious, free market, political, and nationalist or cultural fundamentalism, stating that fundamentalist intolerance is growing throughout the globe and is directly contributing to infringements of the rights to association and peaceful assembly. In November of 2016, a member of the UN High Commission for Refugees stated [JURIST report] that the violence is an attempt at "ethnic cleansing" from the government. In May Human Rights Watch urged [JURIST report] the Myanmar Parliament to reconsider a proposed law that the advocacy organization says has the potential to limit free expression and peaceful assembly.
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Martial Law - "Why do you think they did not want the public to know how they voted? Because—and I come to this conclusion after talking to a few congressmen and one senator, after hearing the President’s report and his men’s clarifications—it was clear that there was no factual basis for ML."
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Congress did not convene itself in joint session, as required by the Constitution (which requires a joint vote—kind of hard to do without a joint session). The Senate’s excuse: “no compelling reason to revoke the declaration of martial law” in Mindanao. Just like that. The senators apparently read the President’s report, followed by a meeting with the President’s men—in “executive session,” presumably because there were matters of national security involved.
The public was not privy to the discussions, either in the Senate or in the House of Representatives. Now, Reader, how many issues have you heard in Senate and House hearings, so that we could make our own judgments? And yet this most important of issues did not get heard at all.
But at least the senators had the courage to show how they voted. And just to give you an idea of the logic that was applied, Sen. Miguel Zubiri voted in favor of ML because, he said, “let us finish this [terrorism] menace.” Excuse me, Senator, the Constitution is very clear: ML can be declared only if there is a rebellion or an invasion. Terrorism is not included. There are other responses to terrorism including “calling” the armed forces (it is considered lawless violence).
Our representatives did not even want that. There was no nominal voting where members could defend their stand. Only shouts of “Aye” and “Nay.” Beautiful. History cannot condemn them if history doesn’t know who voted what.
Why do you think they did not want the public to know how they voted? Because—and I come to this conclusion after talking to a few congressmen and one senator, after hearing the President’s report and his men’s clarifications—it was clear that there was no factual basis for ML.
Only consider: Was there a rebellion? It was clarified by the President’s men that the whole Marawi thing started when the military went into Marawi in pursuit of the fugitive (from Basilan) Isnilon Hapilon. The Maute Group came to his aid and things escalated from there. How can that be a rebellion?
It was also clarified that the defense secretary, the Armed Forces chief of staff, the top police honcho, who were all with the President in Russia, were not consulted before the President declared ML. There were even statements, later denied, that ML was not necessary to accomplish their goals.
And then it also was discovered that a lot of the “facts” in the President’s report to Congress were not accurate—like the takeover of a government hospital (denied by the hospital administrator and the health secretary), the Land Bank branch (denied by its officials), the burning of schools (only one was confirmed).
In other words, Reader, after the executive sessions, Congress should have voted NO to ML. There was not enough factual basis for it. But its members roared their approval.
They should be charged with dereliction of duty, malfeasance, misfeasance, nonfeasance. Too bad “sipsip” is not a crime.
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We have waged war on drugs for a century. So who won? | Alex Wodak | Opinion | The Guardian
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While Rodrigo Duterte was campaigning to be elected president of the Philippines last year, he said on many occasions that he would arrange, if elected, for people who sold or used drugs to be killed. Extrajudicial killings began even before his inauguration, with victims usually shot and then drugs and guns planted to make it look like the assailants had acted in self-defence. A 77-page application last month by a lawyer, Jude Sabio – requesting the international criminal court to commence a preliminary investigation – estimated that at least 9,400 people have already been killed by police and vigilantes. According to Sabio, most of the victims were “poor young men, but also bystanders, children and political opponents”. The killings were briefly halted in January after police killed a South Korean businessman, but have since restarted.
Philippines police plant evidence to justify killings in drug war, says report
Governments in many countries carry out extrajudicial killings, almost always for military or national security reasons and rarely targeting people who use or sell drugs. An exception is what happened in Thailand in 2003, when Thaksin Shinawatra was prime minister, and an estimated 3,000 people accused of using or selling drugs were murdered without legal process. More than a decade later, under the current rule of a military junta, the legal and military elite is slowly reforming Thailand’s drug laws. The painful memories of the extrajudicial killings of 2003 are a major factor in the drug law reform now taking place in Thailand.
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So far, with the exception of praise from the US president, Donald Trump, there has been strong international condemnation of the extrajudicial killings in the Philippines, including from Amnesty International and Human Rights Watch. The United Nations human rights council voted 45-1 to urge the Philippines to desist.
Yet while extrajudicial killings have received international attention, the extremism of Duterte’s other drug policies – measures including the reinstatement of the death penalty for drug offences, the lowering of the age of criminal responsibility to as low as 10, and mandatory drug testing in schools and workplaces – have been largely ignored.
The unpalatable fact for policymakers everywhere is that extrajudicial killings of people who use drugs would never occur without the sanction of a global drug prohibition, a system that started with an international meeting convened by the US in Shanghai in 1909. A series of such meetings culminated in three international drug treaties (in 1961, 1971 and 1988) approved by almost every nation. The US president Richard Nixon intensified what he called the “war on drugs” in 1971 to help him win re-election in 1972 despite the deeply unpopular Vietnam war.
Global drug prohibition was expected to reduce the international drug market and make it less dangerous. But this is the opposite of what happened. Instead, production and consumption of drugs such as heroin and cocaine increased and their price fell by 80% over a quarter of a century. More than 100 new psychoactive drugs are identified within the EU every year, some of them much more dangerous than older drugs.
Drug prohibition was also supposed to protect the health and wellbeing of communities. But drug-related deaths, disease, violence and corruption have in many places increased rather than decreased. In Australia, where I spent three decades providing alcohol and drug treatment and advocating public health and human rights , while based in a Sydney teaching hospital, the rate of heroin overdose deaths – allowing for the growth in the population over time – increased
Rodrigo Duterte in December 2016 with a list of police and government officials he says are involved in illegal drugs. Photograph: Rey Baniquet/AFP/Getty Images
In most western countries, property crime – taking money or property without threat – has skyrocketed from the 1960s to the present day. Drug prohibition is not the only factor, but it’s certainly a major one. The number of homicides has also increased in many countries, and this too is linked to the prohibition of drugs and the market this creates for organised crime.
But the effects on producer countries and trafficking countries such as Mexico are far worse than anything experienced in rich countries. When Felipe Calderón became president of Mexico in 2006 he declared a “war on drugs”. By the time he left office six years later, drug traffickers, the army or police had killed at least 80,000 Mexicans. In some countries drug prohibition has encouraged rampant corruption in policing, courts and up to the highest levels of government. Major drug producing or transit countries – such as Afghanistan, Pakistan, Myanmar, Bolivia, Peru, Colombia and Mexico – have risked becoming unstable failed states, even posing threats to the national security of some other countries.
Global drug prohibition has turned out to be an expensive way of making a bad problem much worse
It isn’t that the world has not implemented its war on drugs the right way. A war on drugs will always fail. When correctional authorities can’t keep drugs out of prisons, how can we expect drugs to be kept out of our cities and suburbs? When 1kg of heroin or cocaine multiplies in price several hundred-fold from its country of origin to its city of destination, how can we stop it from being transported? When drug traffickers are better resourced than police, how can we expect our authorities to stop drugs being trafficked?
In the past few years, former world leaders – and even some in office – have started calling for drug law reform. The essential elements are clear. First, redefine drugs as primarily a health and social issue. Second, improve treatment. Third, start reducing and, where possible, eliminating sanctions for drug use and drug possession. Fourth, regulate as much of the drug market as possible, starting with recreational cannabis. And fifth, shrink extreme poverty, which exacerbates drug problems.
FacebookTwitterPinterest ‘Eight states in the US have approved the taxation and regulation of recreational cannabis.’ Browsers at a marijuana shop in Portland, Oregon. Photograph: Steve Dipaola/Reuters
Countries implementing at least some of these measures have seen a decrease in deaths, disease, crime and violence. In Switzerland, illicit drug seizures fell in the 1990s, suggesting that the drug black market may have contracted. And like Switzerland, the Netherlands in the 1970s and Portugal in 2001 benefited from redefining drugs as primarily a health issue. Now some countries are starting to try to regulate parts of their drug market. Eight states in the US, A encompassing 20% of the population, have approved the taxation and regulation of recreational cannabis. Uruguay was the first nation to regulate recreational cannabis. And in July 2018 Canada should become the first G7 nation to do so. Clearly, global drug prohibition is starting to unravel.
But there is a significant risk that Duterte’s campaign of extrajudicial killings and the lack of any serious international response may encourage other countries to instead follow his example. Duterte, who declared martial law in parts of the Philippines last week following gun battles between security forces and Islamic State militants, was recently quoted as saying: “Hitler massacred 3 million Jews. Now, there is [sic] 3 million drug addicts. I’d be happy to slaughter them.” Hitler noted the lack of an international response to the Ottoman government’s genocide of 1.5 million Armenians between 1915 and 1917 and that emboldened him to proceed to his own Holocaust of six million Jews, Gypsies and homosexuals. It would be ironic as well as tragic if the extrajudicial killings of people who use drugs started to spread just when the international drug control system has started collapsing.
It should not take extrajudicial killings in the Philippines in 2017 to make the world realise that global drug prohibition has turned out to be an expensive way of making a bad problem much worse. When Mikhail Gorbachev realised in the 1980s that communism in the USSR had failed, he called for glasnost (openness) and perestroika (restructuring). We now need more openness about drug policy, along with a major restructuring of our response to drugs. The only winners so far have been drug traffickers and the many politicians who found that bad policy made good politics. The longer change is delayed, the more difficult the transition will be.
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Senior Associate Justice expects more petitions against martial law - CNN Philippines
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Metro Manila (CNN Philippines, May 26) — The Supreme Court may receive a number of petitions that will challenge the martial law proclamation, a senior associate justice said.
"I expect a lot of petitions to be filed before the Supreme Court," Senior Associate Justice Antonio Carpio said in an episode of CNN Philippines' The Source airing on Monday.
"I don't wanna comment on that yet because I don't want the other parties to force my inhibition," he added. "I want to participate, so I cannot comment."
Duterte declared martial rule in Mindanao following a clash between the Islamic State-inspired Maute Group and government forces on Tuesday. He added he may expand martial law to the Visayas and Luzon if terrorism spreads to other areas.
The Constitution limits martial rule to 60 days and only in cases of invasion, rebellion, or when public safety requires it. Duterte personally submitted a report to Senate President Aquilino Pimentell III and Speaker Pantaleon Alvarez in Davao City late Thursday, complying with the 48-hour constitutional requirement since the proclamation was issued. Congress in joint session may revoke or extend the proclamation.
Challenges to martial rule
While some officials welcomed the proclamation of martial law in Mindanao, others raised alarm and concern over the scope and speed of the declaration.
Critics include 1986 Constitutional Commission member Christian Monsod.
"The military has been saying... that they have full control. The civil authorities are functioning, the military is inside and surrounding the area," said Monsod. "Is there really the kind of rebellion that calls for the declaration of martial law?" he said in an interview with CNN Philippines on Thursday.
The Liberal Party also on the same day said it was ready to oppose a "blanket martial law" that may have no basis.
Philippine Muslim Society President Jamal Latiph on Wednesday bared plans to challenge the proclamation before the Supreme Court.
"We feel there is no basis, we feel he must first do the traditional approach rather than doing martial law," said Latiph. "That is the last resort....Talk to the LGU to have a negotiation, to have a backdoor channeling in order for them to peacefully leave Marawi City."
A resident of Marawi who admits he is a Duterte supporter, argued that Muslims have a bad recall of martial law after suffering abuses under the regime of former President Ferdinand Marcos.
A group of seven lawmakers from the Makabayan bloc also wants to stop the implementation of martial law in Mindanao, saying their allied organizations are also planning to question Proclamation 216 before the Supreme Court.
ACT Party-list Representative Antonio Tinio recalled that former President Benigno Aquino III faced a similar problem during the Zamboanga Siege in September 2013, but martial law was not declared.
"Parang mas malala pa nga iyong situation noon pero hindi naman nagdeklara ang mga nakaraang administrasyon ng martial law para maaddress ang ganitong sitwasyon," said Tinio.
[Translation: The situation before seemed to worse, but the previous administration did not declare martial law to address the situation.]
Anakpawis Representative Ariel Casilao pointed out that Armed Forces chief Gen. Eduardo Ano, the implementer of martial law, previously faced charges of human rights violations.
Casilao added that granting such power to the military would "inevitably result to wanton abuses of human rights."
The police and military are drafting guidelines for the implementation of martial law.
Support for martial law
On the other hand, Kabayan Party-list Representative Harry Roque, believes questioning martial law before the Supreme Court will not prosper.
"It will not stand in court given that there [is] shooting in the streets [of] Marawi," said Roque.
Some lawmakers, including House Majority Leader Rodolfo Farinas, believes holding a joint congressional session to tackle martial law -- as referred to in the Constitution -- is only necessary if there are plans to revoke it.
Sen. Cynthia Villar also said majority of the Senate will likely support the proclamation.
CNN Philippines Correspondent Joyce Ilas contributed to this report.
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What President Duterte means when he says his Martial Law will be “harsh” like Marcos’ Martial Law.
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Read this to understand what President Duterte means when he says his Martial Law will be “harsh” like Marcos’ Martial Law
MAY 26, 2017 BY RAISSA
“Martial Law is Martial Law,” Philippine President Rodrigo Duterte recently said as he explained his sudden declaration of Martial Law through an interview with Palace chief propagandist Mocha Uson.
Then Duterte added a word of warning to those who had suffered Martial Law under his role model, dictator Ferdinand Marcos: “So kayong mga kababayan ko (so to my countrymen), you have experienced martial law it will not be any different from what the President Marcos did. I’ll be harsh.”
Duterte then justified his harshness by saying, “I have to do it to preserve the Republic of the Philippines.”
Today, fewer people know what Duterte means by the word “harsh” since there are more Filipinos now who were born after the dictator Marcos was forced to flee the country in 1986.
To give readers some idea of what Duterte means by “harsh”, I am posting here for anyone to read online excerpts from my book, Marcos Martial Law: Never Again.
The first excerpt is part of the introduction – The Boy who Fell from the Sky.
Here is the link to read it online.
The second excerpt is – Advent of the New Society which includes The Road to Martial Law. It shows the steps Marcos took to impose martial rule.
Here is the link to read it online.
You can share the links with anyone so they, too, can read them online.
I am doing this in the hope that more Filipinos will know what happened in the past so it will never ever be repeated again.
– Raïssa
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Philippines' Duterte vows to ignore Supreme Court on martial law
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JOLO: Philippine President Rodrigo Duterte has said he will ignore the Supreme Court and congress as he enforces martial law across the southern third of the country, even though the constitution gives them oversight.
Duterte on Tuesday imposed martial law in the Mindanao region, home to 20 million people, following deadly clashes in a mostly Muslim-populated city involving militants whom he said were trying to establish a caliphate for the Islamic State group.
"Until the police and the armed forces say the Philippines is safe, this martial law will continue. I will not listen to others. The Supreme Court, congress, they are not here," Duterte told soldiers on Saturday.
"Are they the ones dying and losing blood, bleeding, haemorrhaging because there is no help, no reinforcement? It's not them."
The 1987 constitution imposes limits on martial law to prevent a repeat of the abuses under dictator Ferdinand Marcos, who was deposed by a famous "People Power" revolution the previous year.Advertisement
The charter requires the president to submit a report to congress on why martial law has been declared.
Congress can then revoke a president's declaration of martial law, which is limited to 60 days. If a president decides to extend martial law, congress can again review and revoke.
But Duterte threatened to ignore the mechanisms in place for extension. "They say after 60 days I should go to congress: I don't know," he said.
The Supreme Court can also rule on martial law's legality if a case is filed before it, but Duterte said the judges would not understand the situation.
"The Supreme Court will say they will examine into the factual (basis). Why, I don't know. They are not soldiers. They do not know what is happening on the ground," Duterte said Saturday on Jolo, a southern island that is under martial law.
A day after declaring martial law, Duterte described the nine years of military rule under Marcos as "very good" and said his would be similar.
Duterte also told soldiers on Friday they would be allowed to conduct searches and arrests without warrants. "During martial law, your commanders, you, you can arrest any person, search any house. There is no more warrant needed," he told troops.
His comments contradicted a government statement released on Saturday to explain martial law.
"Warrants of arrest or search warrants should be issued," the statement from the government's information agency said.
"No person may be arrested and detained without orders coming from these civil courts."
Duterte has overwhelming support in congress, which is this week widely expected to endorse his initial declaration of martial law.
However the Supreme Court chief justice, Maria Lourdes Sereno, on Friday expressed concerns about the declaration.
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Read more at http://www.channelnewsasia.com/news/asiapacific/philippines--duterte-vows-to-ignore-supreme-court-on-martial-law--8890262
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