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International Law

Towards the Universal Criminal Justice

Anis H. Bajrektarevic

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As one of the active participants in the Palermo system treaty making (from the early Polish draft in 1988 to the Signing Conference in December 2000), I am revisiting, rethinking and summing up the first 10-year period after the creation of these important international instruments on organized crime and corruption and take a closer look to the actual state of affairs in 2014.

The following lines are my brief assessment on the main institutions and instruments relevant to the universal criminal justice. A due reference is made to terrorism by elaborating on the phenomenon as well as on the universal and regional key institutions and instruments dealing with terrorism. The present text appeared in 1999 for the first time (in a considerably shorter form, as the working paper dealing only with the critical similarities and differences between ‘smuggling of’ and ‘trafficking in’) before the ICMPD Steering Board – Ministerial.

 

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Modern Diplomacy Advisory Board, Chairman Geopolitics of Energy Editorial Member Professor and Chairperson for Intl. Law & Global Pol. Studies contact: anis@bajrektarevic.eu

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International Law

COVID-19: UN Security Council should urgently take a Lead

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Authors: Tan Sri Hasmy Agam and Prof. Anis H. Bajrektarevic

The COVID-19 situation is very worrying, indeed, alarming matter, not just as a global health and biosafety issue, but potentially as a global security challenge, too.

While the pandemic is being dealt with by the World Health Organisation (WHO), along with other relevant United Nation Specialised Agencies (UN SA), the situation is deteriorating rapidly and could easily get out of control. This of course, if it is not effectively contained. In such a (more and more likely) scenario, it would be engulfing the entire world, virtually akin to as the Third world war, though initially of a different kind.

We are amazed as to why the Security Council has not stepped in. It should have done so as to address the Covid-19 and surrounding scenery in the way it clearly deserves to be dealt with, given its devastating impact on the entire international community on almost every dimension, including international peace and security, which indisputably falls under its mandate under the UN Charter.

As the Council has often dealt with issues which are sometimes not ostensibly related to international or regional security, we are puzzled, indeed alarmed, as to why it has chosen not to come to grips with the pandemic as a matter of the utmost urgency.

If the members of the Council, for their own internal reasons, have not felt compelled to do so, shouldn’t the other members of the world body, individually or collectively as international or regional groupings, such as the European Union (EU), the Non-Aligned Movement (NAM) – G-77,African Union (AU), or ASEAN, take the much-desired initiative to call on the Security Council to imperatively address this global pandemic, even as the WHO and other concerned UN agencies, much to their credit, are dealing with the issue from their own (narrow) perspectives – and yet rather limited mandate and resources.

In this regard, especially the EU, would be well-positioned to exert the much-need pressure on the UNSC, given the devastation that the Virus has wreaked on a number of its members, notably Italy and Spain, among others.

Such an urgent Meeting of the UN Security Council at this point in time would be greatly applauded by the entire international community as it would accord the world body the leadership role that its members expect it to play.

Gens una sumus. Concordia patria firmat

In this dire situation, the big powers should put aside their ideological and policy differences, or power play, and focus instead on galvanizing concerted international actions of ensuring the safety and wellbeing of the entire human race.

By decisively and urgently acting, the UN Secretary-General and the UN SC would be sending a bold and clear yet tranquilising signal to the entire humanity. More importantly, such a unison voice would be also welcomed and well understood as a referential (not to say a norm setting) note by other crucial agencies, such as the UN High Commissioner for Human Rights (UNHCHR), International Labour Organisation (ILO), International Civil Aviation Organisation (ICAO), World Tourism Organisation (WTO), as well as by the Red Cross (IFRC), Bretton Woods institutions, Organisation of  Economic Cooperation and Development (OECD), Federation of Trade Unions, including other specialised or non-UN FORAs, most notably developmental entities such as the Inter-American Development Bank (IADB), Islamic Development Bank (IsDB), Asia Development Bank (ADB), Africa Development Bank (AfDB), etc.

In the following period – while witnessing indeed a true historical conjuncture, we need a global observance and protection of human rights, of jobs, for the benefit of economy and overall security. Recovery – which from now on require a formidable biosafety, too – will be impossible without social consensus. Clearly, it will be unsustainable if on expenses of labour or done through erosion of basic human rights – embedded in the UN Charter and accepted as essential to the very success of SDGs (Sustainable Development Goals).

Indeed, countries are not just economies, but most of all societies.

(The truth is plain to see: Planet has stopped, although the Capital remains intact. We came to a global halt because the Labour has been sent home. Hence, the recovery comes with labour. Historically, labour has never betrayed, while capital has failed us many times. By the same token, human rights never betrayed the state and its social cohesion, but the states – and much glorified markets – far too many times in history have failed humans. Therefore, there is no true exit from the crisis without strengthening the labour and human rights.)

For a grave planetary problem, our rapidly articulated global accord is badly needed. Therefore, multilateralism – as the most effective planetary tool at our disposal – is not our policy choice. It is the only way for human race to (socio-economically and politically) survive.

Covid-19 is a challenge that comes from the world of biology. Yet, biology and international relations share one basic rule: Comply or die. To remind us; it is not the big that eat the small, rather it is a fast which eats the slow.

It is night time to switch off the autopilot. Leadership and vision now!!

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International Law

World Governments Need Cooperation of Every Section of Society to Defeat COVID-19

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COVID-19 has wrapped the whole world in its trap because of multiple reasons in which irresponsible behaviour at the hands of states remains at the top. There were some nations such as Italy and America which were not taking the threat of coronavirus serious resultantly both the countries are now the most affected nations of the world. Even at the extent that the president of America Donald Trump was showing passive behaviour concerning the outbreak of devastating virus resultantly the US has surpassed China and reached the top by highest patients in the world which have crossed two lacs including almost five thousand deaths. In this regard, President Trump has signed the $2 trillion Coronavirus relief bill. Besides, other nations such as Italy, Spain, China, Germany, France, and Iran come respectively after the US about the patients of COVID-19. As for as Pakistan is concerned, Prime Minister Imran Khan also urged for the international as well as national cooperation to control and eliminate the threat of COVID-19. While people in Pakistan are not still taking it seriously or fully cooperating with government via looking over their immature and unserious behaviour concerning the restrictions imposed by the government through violating them. In this regard, the government has sealed various shops and other public places that were open even after lockdown. Therefore the government has taken serious steps through lodging FIR against them. Besides, various madrassas/masjids were also offering Friday congregation prayers via side-lining the guidelines given by the government therefore many people were arrested and put behind the bars by security forces of the country. While looking over the staggering and worsening condition of Pakistan which shows a fast increase in the patients of coronavirus government requires the seriousness and cooperation of people to control over fatal disease otherwise it will wipe out most of the population of the country.

Consequently, it is not only the responsibility of people within states to cooperate with the government to defeat first this global pandemic disease but it is also high time for states to cooperate even having multiple differences over numerous issues. In this regard, for defeating Coronavirus states require global cooperation via setting their enmities and differences aside for the common good. Besides, China continues international cooperation to beat COVID-19. Beijing is determined to cooperate and help other nations, therefore, it has sent aid towards 18 countries over the past month in which it has sent its team as well as tons of medical supply to various countries such as Italy, Cambodia, Pakistan, and United Kingdom. Along with this Chinese government said that those countries which are not provided aid by it were helping them through an online website. Via looking over the commitment and relentless struggle of the Chinese government as well as people particularly medical staff, they have become successful in controlling the spread of COVID-19. In the same manner, China also emphasized the global stakeholders that global cooperation is the only way to beat the coronavirus. The governments need acts with speed, scale and clear-minded determination to conquer the fast-spreading virus. Because “viruses do not respect border: neither do they distinguish between races or nations, therefore, responsible governments worldwide should stand firmly against hatred and racism and join hands to promote disease prevention and clinical treatment as well as vaccine development”.

World Health Organisation (WHO) Chief in his recent media briefing said that “This is not just a threat for individual people or individual countries. We are all in this together, and we can only save lives together”. Though preventive measures suggested by the countries which have minimized and controlled the fast spread of COVID-19 such as China, South Korea, and Sudan are social distancing, contact tracing, widespread testing, and early preparation. In the DW documentary, Dr. Alexander Edward, an Immunologist, emphasized on the usage of face masks, he also entertained that the world is running out of face mask because of its massive usage. Besides, Nature is a weekly international journal that published an article on March 9 in which emphasized over three things to eliminate coronavirus namely follow WHO advice, end secrecy in decision-making and cooperate globally which is the only way to defeat one of the worst infectious-diseases spread throughout the world. COVID-19 has left severe effects on the social, political, economic, and financial structures of the world. So, it is very difficult only for the governments of states to control and defeat this pandemic virus. In this regard, governments need the seriousness of behaviour as well as the cooperation of each section of society may it be doctor, social workers, government and private employs, common people, armed forces, businessmen, farmers along with each person who can contribute in any way to help the government to defeat the Coronavirus. This is the easiest and fast way to fight against coronavirus otherwise whole nations including governments are going to bear the brunt of this one of the most dangerous viruses of the 21st Century.

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International Law

Satya N. Nandan: End of an era for Law of the Sea

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The passing away of Amb. Satya N. Nandan of Fijion February 25, 2020 comes as a decisive loss to law of the sea as both a field of academic inquiry and a branch of applied public international law. As a crusader for a global rules based order for the world’s oceans, there are few who have contributed to the practical development and evolution of this field as the iconic Fijian lawyer-diplomat who would hold top positions in the United Nations and man the International Seabed Authority for the better part of its existence. His seminal contribution to Law of the Sea marks him out as a world-renowned practioner in a field that was marked by Westphalian struggles to establish control over the world oceans and the vast resources that lie beneath in the years leading to the adoption of United Nations Convention on the Law of the Sea, 1982 (UNCLOS). His death marks the end of an era for the discipline that continues to evolve based on the provisions of UNCLOS and the untiring efforts of States to strive for a world order based on equity and justice.

Born in 1936 in what was then known as the British Crown Colony of Fiji as the youngest of ten children to Shiu Nandan and Raj Kaur, Satya Nandan after completing his early education in his home country moved to New Zealand to complete his high school education. Pursuant to a law degree from the University of London in 1965, Nandan became a barrister at Lincoln’s Inn before returning to Fiji to start private practice. The newly independent nation would seek his assistance in establishing the country’s mission to the United Nations in 1970 eventually leading to his absorption as a career diplomat in Fiji. From here on Satya Nandan would be the moral and intellectual voice of the Pacific Island States seeking to assert their legitimate claims on ocean resources and championing the codification of what was then regarded as one of the last unregulated frontiers of the global commons. This association with law of the sea and ocean affairs would become a lifetime preoccupation for the rising young lawyer-diplomat.

Amb. Nandan’s most remarkable contribution to law of the sea would be his work as the Rapporteur of the Second Committee of the Conference that dealt with the major issues of law of the sea. The inability of the First and Second Geneva Conventions to iron out contentious issues failed to result in a global ocean convention acceptable to all States. The mistakes where sought to be corrected by the time the Third Conference on the Law of the Sea convened in New York in 1973. The United Nations Convention on the Law of the Sea, 1982 was the result of this Conference and has been the major treaty body regulating the use of oceans for the international community since its coming into force on November 16, 1994. Amb. Satya Nandan is widely recognized as the principal architect of this exercise who ironed out differences existing between various countries on diverse contentious issues. In the process, the Pacific States and Asian-African States were able to secure maritime jurisdictional claims of 200 NM from their baselines through the creation of Exclusive Economic Zones (EEZs), a unique output of the Convention first articulated in the Colombo Session of the Asian African Legal Consultative Organization (AALCO) in 1971 by Kenya. In addition, Amb. Nandan negotiated the rights for archipelagic States and the passage through straits for international navigation. In all cases, his determination to safeguard the interest of Pacific States and by doing so the interests of the broader community of Asian-African States stood out with conviction that continues to find resonance in global treaty negotiations till this date.

The provisions pertaining to deep-sea bed mining continued to remain contentious even after the adoption of the 1982 Law of the Sea Convention. This lead to the delay in the coming into force of the Convention. Urged by the then Secretary-General of the United Nations, Javier Perez de Cueller, Amb. Nandan joined the Organization as the Under Secretary- General for Ocean Affairs and Law of the Sea and the Special Representative of the Secretary-General for Law of the Sea. Most of the concerns pertaining to the issue were resolved through the intervention of Amb. Nandan as Chairman of the ‘Boat Paper Group’ resulting in the 1994 Implementing Agreement on Part XI, which created the International Seabed Authority to regulate the conservation and use of non-living resources on the deep-sea bed in areas beyond national jurisdiction.

Elected as the Secretary-General of the International Seabed Authority in 1996, Amb. Nandan in his three-term tenure that lasted till December 2008 was instrumental in moulding the ISA from its inception as an international organization with a specific mandate including establishing its main organs- the Assembly, Council, Legal and Technical Commission and the Finance Committee. It was during his tenure that the Regulations on Prospecting and Exploration of Polymetallic Nodules in the Area also known as the ‘Nodules Regulations’ were promulgated that would regulate the actual conduct of deep-sea mining in the ‘Area’ .  The establishment of an Endowment Fund in 2006 by the Authority for the advancement for marine scientific research (MSR) activities was also a significant feature of the work of the Authority and was widely welcomed as advancing the mandate of UNCLOS, 1982. Incorporating the ‘Precautionary Approach’ to the work of the Authority was a legacy of Amb. Nandan, which was validated by the Seabed Disputes Chamber in February 2011 in an advisory opinion that mandated the application of this principle as originally laid down in the 1992 Rio Declaration.

Amb. Nandan’s role in creating a global legal framework for fishery conservation was yet another shining aspect of his legacy. As Chairman of the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, the global community would witness theadoption of the 1995 United Nations Fish Stocks Agreement under his leadership and the subsequent setting up of the Western and Central Pacific Fisheries Commission. His lifelong commitment to sustainable use of marine living resources continues to inspire sustainability debates in the sector and remains highly valuable in the context of ‘blue economy’ debates.

The Virginia Commentary, which remains the most significant and reliable elucidation on the law of the seawas spearheaded by Amb. Nandan. It gives a masterly account of the treaty negotiation process leading to the adoption of the convention and forms a crucial corpus of the Law of the Sea. While it involved the effort of numerous individuals, Nandan is credited with providing intellectual leadership of the project as the series general editor of the work along with Shabtai Rosenne. The seven-volume book, which took 26 years to prepare, remains an indispensable account for any serious scholar or practioner of the subject.

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