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International Law

Decriminalize Victims, please

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] T [/yt_dropcap]he 1951 Convention Relating to the Status of Refugees is a key document that defines the term ‘refugee’, outlines rights for refugees, and keeps States accountable for their actions. Important requirements to become a refugee include: facing a well-rounded fear of persecution, seeking asylum or refugee status in the first possible venue, and receiving a fair hearing from a person who is legally qualified (Lect, Nov.8).

States have to uphold the non-refoulement principle-the practice of not forcing refugees to return to a country where they face serious persecution (UNHCR, 2010). The 1951 Convention and the 1967 Protocol Relating to the Status of Refugees form the legal framework. Although the legal framework provides a consistent set of requirements in determining who is a refugee and holds states liable for protecting the rights of refugees, violations occur.

How effective is the legal framework (and its enforcement) for refugees in protecting their human rights? It seems that the enforcement turns increasingly ineffective and inappropriate in safeguarding refugees’ rights. Let’s examine it on a comparative example of countries such as Australia, Turkey, the Czech Republic, and China (to name but few) that repeatedly fail to uphold the principle of non-refoulement, commit human rights abuses, and find ways to refuse accepting refugees.

Down-under or upside-down

Despite being a signatory to the 1951 Convention, Australia defies the non-refoulement principle, which violates refugee law. For instance, the boat Tampa rescued Afghanistan asylum-seekers who were on board a sinking Indonesian fishing boat (Lect, Nov.8). Although the closest port of rescue was on Christmas Island in Australia, the Australian government refused to allow Tampa to land any of the asylum seekers (McKay, Thomas, Kneebone, 2011). Australian Prime Minister John Howard was determined to limit the uncontrollable number of illegal arrivals and unauthorized asylum seekers in the country (UN: Australia, 2001). Over half of Australia’s population viewed asylum seekers as a deviant social group coming for a better life rather than helpless people fleeing persecution. This is because refugees are seen as exploiters of Australia’s welfare system (McKay et.al., 2011). In the end, the passengers were taken to camps in Naura while others were sent back to Afghanistan, disregarding the risk of persecution if they are sent back (UNHCR, 2006). By initially refusing to accept refugees and sending them back to Afghanistan, Australia fails to uphold the non-refoulement principle. Non-refoulement states that no contracting state shall expel or return a refugee to a territory where his life is threatened (Note, 1977). Even though Australia has legal obligations under the UN Refugee Convention, the Tampa Affair demonstrates the weakness of the legal framework in failing to effectively enforce refugee law and punish countries when they commit violations.

In addition to violating the core principle of non-refoulement, Australian detention centers do not comply with human rights protection such as the right to access medical care and freedom from degrading treatment. Detention camps for refugees have horrible conditions that negatively impact mental and emotional health. At the Naura camp, more than 30 children report sexual assault, and 1200 refugees suffer severe abuse and inhumane treatment (Australia, 2016). They experience indoor temperatures over 113 degrees Fahrenheit, use filthy toilets, and are hampered by severe resource constraints (Holzer, 2012). Thus, the legal framework is functionally inefficient because it fails to guarantee basic human rights that refugees should have. The violations against both non-refoulement and human rights undermine the stronghold of the legal framework and its protections, which further impact the attitudes of other countries.

Near (the) East – Nearer the Trouble

Similar to Australia’s case, Turkey faces international criticism because several Syrian refugees have been forcibly deported back to Syria by Turkish authorities in violation of the non-refoulement principle, putting them at risk of human rights abuses. About 80 Syrian refugees held at a detention center in the Turkish city of Erzurum were expelled (Letsch, 2015). In addition, they were tortured, beaten, locked in rooms, and forced to sign documents that state they were leaving Turkey out of their own free will (Ibid). These actions go against Article 1 of the Convention Against Torture, which states that any act by which severe pain is intentionally inflicted on a person for purposes such as intimidating or coercing something from a third person, is illegal (Grans, 2015). Refugees do not have access to interpreters who can translate the Turkish language on the document, and police officers forcibly use refugees’ fingerprints as signatures without permission. However, refugees cannot challenge their detention or deportation because they have no legal representation, and Turkey does not grant refugees a fair hearing. By forcibly deporting refugees, Turkey violates the provision that repatriation must be voluntary (Lect, Nov.8). Thus, the legal framework is unsuccessful in even giving refugees an opportunity to seek long-term, legitimate refugee status under fair means.

Polish the Czech or C(z)heck the Polish ?

In addition to Turkey, refugees flee the Syrian civil war to the EU, and of course within, to the Czech Republic, Poland and other Visegrád countries. However, the Czech Republic for instance intentionally violates human rights to deter them from coming in the first place. The refugees prefer Germany, but they are in no freedom to seek refugee status at a place they desire (Ibid). They must seek it at the first possible venue, forcing them to enter the Czech Republic (Lect, Nov.8). Refugees experience strip-searching and their money is confiscated to pay for their detention; additionally, the Czech Republic holds refugees in detention from 40 to 90 days in degrading conditions (Calamur, 2015). The Czech Justice Minister also describes the Bìlá-Jezovqá detention center as worse than a prison (Ibid). This example demonstrates the use of systematic mistreatment towards refugees- to the extent of abusing their human rights but not to the point of death-to discourage them from trying to seek refugee status. The Czech strategy in intentionally failing to protect human rights causes the deterrence of refugees. In this case, the legal framework plays a role in granting refugees a chance to seek refugee status, but is still weak in protecting refugees’ freedom from degrading treatment once in the country.

In general, when refugees are placed in refugee or detention camps, they lack freedom of movement and do not have economic rights. Refugees are forced to stay in the camps because they have nowhere else to go, which restricts their freedom to move. A majority of the refugees cannot make future plans because they are not given a timeline of how long they need to remain at the camp (Training, 2001). This uncertainty restricts their ability to make economic progress, find a way to make a living, or find a permanent job. In fact, the protection of human rights for refugees is drastically inferior to that of trafficking. A Special Rapporteur on Trafficking in Person (SRTIP) is appointed to focus on the human rights aspect of the victims of trafficking (Gallagher & Ezeilo, 2015). The SRTIP has the authority to monitor, advise, and publicly report on a human rights situation in a specific country. However, there is no appointed person to report human rights abuses for refugees. Although the legal framework allows refugees to seek haven in another country to avoid persecution, they are still subject to human rights abuses, just not to the extent of death. The legal framework, including the 1951 Convention and 1967 Protocol, is inherently ineffective because it does not have monitoring bodies to reinforce the protection of refugees’ human rights and hold states accountable for violations.

Un/silky-smooth road

Although Syrian refugees going to the Czech Republic are at least given the opportunity to seek refugee status, the status of North Korean refugees crossing into China is highly debated, which affects their treatment and the benefits they are entitled to. The Chinese government insists that North Korean refugees are economic migrants seeking economic opportunity (Lect, Nov.8). The famine in North Korea causes too many North Koreans to cross over to China, which poses an economic strain on undeveloped border regions and disrupts China’s demography (Cohen, 2007). The legal framework holds very little power in compelling China to prioritize accepting refugees over protecting their economy. China is able to find a loophole in the legal framework by stating that famine does not necessarily equal persecution; therefore, China is justified in not accepting people simply trying to take economic advantage. The legal framework fails to clearly delineate the forms of persecution, allowing China to label North Korea refugees as economic migrants and not accept them.

However, North Koreans leave their country at risk of arrest and death if they are forced to turn back, which should not be an issue in the first place since repatriation should be voluntary under the Convention and Protocol. When they are turned back, they are tortured and persecuted because defection is a crime of treachery against North Korea (Robertson, 2012). This goes against the 1951 Refugee Convention that states that no state shall expel a person to another state where there are substantial grounds that the person will face torture (UNHCR, 1977). Forcibly repatriating the North Koreans is the same as subjecting them to death. Along with the threat of death, North Koreans have no determination process to which China is legally liable for. In this sense, China fails to uphold its responsibility as a receiving country that gives refugees a fair hearing, proving the inadequacy of the legal framework to manage the country’s adherence to the 1951 Convention and 1967 Protocol.

Furthermore, the politics of North Koreans’ refugee status overshadows the importance of abiding by the legal framework. The Chinese are motivated to avoid displeasing North Korea. China holds extreme power because it is the only country that has ties with North Korea and can address international concerns such as North Korea’s possession over nuclear weapons (Lect, Nov.8). Therefore, China has a strong motive to maintain its connection with North Korea. Thus, although China is a signatory to the United Nations Convention on Refugees and has the obligation to not forcibly repatriate refugees, China cooperates with North Korea to find defectors. China justifies turning in defectors by claiming that defectors are not legally considered refugees (Lee, 2016). Chinese citizens are even paid for turning defectors in (Ibid). Overall, defectors lack access to schooling, health care, and citizenship. Women defectors are also vulnerable to abuse and sex trafficking. They are often forced into marriages and sold to Chinese men (Yun, 2016). These human rights abuses demonstrate the ineffectiveness of the legal framework in functioning to hold states accountable for protecting refugees’ rights. In China’s case, the lack of clarity for “persecution” allows China to justify this mistreatment because defectors are not refugees, and China has no legal obligation to protect defectors’ rights. Thus, the legal framework is inadequate in its specificity.

Criminalize indifference and enforce acceptance

“Faced with aging domestic populations and following the logics of corporate expansion, the Western markets need migrants, but the ordinary citizenry does not want them. What changed in the meantime is the societal capacity to absorb those immigrants – and closely related to that – the psychological state of domestic populations. Therefore, many European political parties extended their agendas with more restrictive immigration policies.” – noted professor Anis H. Bajrektarevic in his inspiring work ‘JHA Diplomacy’ nearly ten years ago. “Shortsighted and opportunistic as it might be – it ignores the golden rule of migration: Once you cut off legal means, would-be immigrants just turn to smugglers.” – professor explained the phenomenon and predicted our currents nearly ten years ago.

In conclusion, the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, both of which form the legal framework for refugees, are ineffective in enforcing the acceptance of refugees with the option of voluntary repatriation and protecting their rights. Although Australia is generally accepting of refugees, the extreme influx of authorized asylum seekers has overwhelmed the country, causing Australians to view them as exploiters of Australia’s welfare system. Australia has violated the non-refoulement principle and subjected refugees to terrible conditions, which are violations of the legal framework. The bigger implication is that disobedience has a cascading effect – Turkey, the Czech Republic and Poland, and China have also violated the non-refoulement principle and committed human rights abuses. While all three countries subject refugees to degrading treatment, Turkey forcibly deports refugees, the Czech Republic deliberately mistreats refugees to deter them from coming, and China outright rejects North Koreans as refugees. These examples indicate the weakness of the legal framework in granting refugee status in the long-term and protecting their rights. When looking at the bigger picture, installing monitoring bodies and regulatory agencies to supervise the adherence to the legal framework for refugees can strengthen the effectiveness of the legal framework.

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International Law

Carl Schmitt for the XXI Century

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For decades, the scholars of international relations have confused the term “New World order” in the social, political, or economic spheres. Even today, few scholars confuse the term with the information age, internet, universalism, globalization, and  American imperialism. Unlike the complex categorization of the New World Order, the concept of the Old World Order was purely a juridical phenomenon. However, from standpoint of modernity, the term New World order is a purely ideological and political phenomenon, which embodies various displays such as liberal democracy, financial capitalism, and technological imperialism.

In his Magnus Opus “The concept of the Political”, Carl Schmitt lauded a harsh criticism on liberal ideology and favored competitive decisionism over it. This is why according to Schmitt’s critics; the whole text in “The concept of the political” is filled with authoritarian overtones. Nonetheless, the fact cannot be denied that it was the radical political philosophy of Carl Schmitt that paved the way for the conservative revolution in Europe. Even today, his writings are being regarded as one of the major contributions to the field of political philosophy from the 20th century.

Throughout his major works such as “Nomos of the earth”, “the Crisis of Parliamentary democracy”, “The concept of the Political” and “Dictatorship”, Carl Schmitt frequently employs unadorned terms such as ‘actual’, ‘concrete’, ‘real’, and ‘specific’ to apprize his political ideas. However, he advances most of the core political ideas by using the metaphysical framework. For instance, in the broader political domain, Carl Schmitt anticipated the existential dimension of the ‘actual politics’ in the world today.

On the contrary, in his famous work “The Concept of the Political” readers most encounter the interplay between the abstract and ideal and, the concrete and real aspects of politics. Perhaps, understanding of Schmitt’s discursive distinctions is necessary when it comes to the deconstruction of the liberal promoted intellectual discourse. However, the point should be kept in mind that for Schmitt the concept of the political does not necessarily refer to any concrete subject matter such as “state” or “sovereignty”. In this respect, his concept of the political simply refers to the friend-enemy dialectics or distinction. To be more precise, the categorization of the term “Political” defines the degree of intensity of an association and dissociation.

In addition, the famous friend-enemy dialectics is also the central theme of his famous book “The Concept of the Political”. Likewise, the famous friend-enemy distinction in Schmitt’s famous work has both concrete and existential meaning. Here, the word “enemy” refers to the fight against ‘human totality”, which depends upon the circumstances. In this respect, throughout his work, one of the major focuses of Carl Schmitt was on the subject of  “real Politics”. According to Schmitt, friend, enemy, and battle have real meaning. This is why, throughout his several works; Carl Schmitt remained much concerned with the theory of state and sovereignty. As Schmitt writes;

I do not say the general theory of the state; for the category, the general theory of the state…is a typical concern of the liberal nineteenth century. This category arises from the normative effort to dissolve the concrete state and the concrete Volk in generalities (general education, general theory of the law, and finally general theory of the knowledge; and in this way to destroy their political order”.[1]

As a matter of the fact, for Schmitt, the real politics ends up in battle, as he says, “The normal proves nothing, but the exception proves everything”. Here, Schmitt uses the concept of “exceptionality” to overcome the pragmatism of Liberalism. Although, in his later writings, Carl Schmitt attempted to dissociate the concept of “Political” from the controlling and the limiting spheres but he deliberately failed. One of the major reasons behind Schmitt’s isolation of the concept of the political is that he wanted to limit the categorization of friend-enemy distinction. Another major purpose of Schmitt was to purify the concept of the “Political” was by dissociating it from the subject-object duality. According to Schmitt, the concept of the political was not a subject matter and has no limit at all. Perhaps, this is why Schmitt advocated looking beyond the ordinary conception and definition of politics in textbooks.

For Schmitt, it was Liberalism, which introduced the absolutist conception of politics by destroying its actual meaning. In this respect, he developed his very idea of the “Political” against the backdrop of the “human totality” (Gesamtheit Von Menschen). Today’s Europe should remember the bloody revolutionary year of 1848 because the so-called economic prosperity, technological progress, and the self-assured positivism of the last century have come together to produce long and deep amnesia. Nonetheless, the fact cannot be denied that the revolutionary events of1848 had brought deep anxiety and fear for the ordinary Europeans. For instance, the famous sentence from the year 1848 reads;

For this reason, fear grabs hold of the genius at a different time than it does normal people. the latter recognizes the danger at the time of danger; up to that, they are not secure, and if the danger has passed, then they are secure. The genius is the strongest precisely at the time of danger”.

Unfortunately, it was the intellectual predicament at the European stage in the year 1848 that caused revolutionary anxiety and distress among ordinary Europeans. Today, ordinary Europeans face similar situations in the social, political, and ideological spheres. The growing anxieties of the European public consciousness cannot be grasped without taking into account Carl Schmitt’s critique of liberal democracy. A century and a half ago, by embracing liberal democracy under the auspices of free-market capitalism, the Europeans played a pivotal role in the self-destruction of the European spirit.

The vicious technological drive under liberal capitalism led the European civilization towards crony centralism, industrialism, mechanization, and above all singularity. Today, neoliberal capitalism has transformed the world into a consumer-hyped mechanized factory in which humanity appears as the by-product of its own artificial creation. The unstructured mechanization of humanity in the last century has brought human civilization to technological crossroads. Hence, the technological drive under liberal democratic capitalism is presenting a huge threat to human civilizational identity.


[1] Wolin, Richard, Carl Schmitt, Political Existentialism, and the Total State, Theory and Society, volume no. 19, no. 4, 1990 (pp. 389-416). Schmitt deemed the friend-enemy dialectics as the cornerstone of his critique on liberalism and universalism.

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International Law

Democratic Backsliding: A Framework for Understanding and Combatting it

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Democracy is suffering setbacks around the world. Over the past decade, the number of liberal democracies has shrunk from 41 to 32. Today, 34 percent of the global population lives in 25 countries moving in the direction of autocracy. By contrast, only 16 countries are undergoing a process of democratization, representing just 4 percent of the global population. Reflecting these troubling trends, USAID Administrator Samantha Power, during her confirmation hearing, highlighted democratic backsliding – along with climate change, conflict and state collapse, and COVID-19 – as among the “four interconnected and gargantuan challenges” that will guide the Biden Administration’s development priorities.

However, defining “democratic backsliding” is far from straightforward. Practitioners and policymakers too often refer to “democratic backsliding” broadly, but there is a high degree of variation in how backsliding manifests in different contexts. This imprecise approach is problematic because it can lead to an inaccurate analysis of events in a country and thereby inappropriate or ineffective solutions.

To prevent or mitigate democratic backsliding, policymakers need a definition of the concept that captures its multi-dimensional nature. It must include the actors responsible for the democratic erosion, the groups imperiled by it, as well as the allies who can help reverse the worst effects of backsliding. 

To address this gap, the International Republican Institute developed a conceptual framework to help practitioners and policymakers more precisely define and analyze how democratic backsliding (or “closing democratic space”) is transpiring and then devise foreign assistance programs to combat it.  Shifting away from broad generalizations that a country is moving forward or backward vis-à-vis democracy—which makes it difficult, if not impossible, to derive specific solutions—the framework breaks closing democratic space into six distinct, and sometimes interrelated, subsectors or “spaces.”

Political/Electoral: Encompasses the arena for political competition and the ability of citizens to hold their government accountable through elections. Examples of closing political or electoral space range from fraudulent election processes and the arrest or harassment of political leaders to burdensome administrative barriers to political party registration or campaigning.

Economic: Refers to the relationship between a country’s economic market structure, including access and regulation, and political competition. Examples of closing economic space include selective or politically motivated audits or distribution of government licenses, contracts, or tax benefits.

Civic/Associational: Describes the space where citizens meet to discuss and/or advocate for issues, needs, and priorities outside the purview of the government. Examples of closing civic or associational space include harassment or co-optation of civic actors or civil society organizations and administrative barriers designed to hamper civil society organizations’ goals including limiting or making it arduous to access resources.

Informational: Captures the venues that afford citizens the opportunity to learn about government performance or hold elected leaders to account, including the media environment and the digital realm. h. Examples of closing informational space consist of laws criminalizing online speech or activity, restrictions on accessing the internet or applications, censorship (including self-censorship), and editorial pressure or harassment of journalists.  

Individual: Encapsulates the space where individuals, including public intellectuals, academics, artists, and cultural leaders– including those traditionally marginalized based on religious, ethnicity, language, or sexual orientation–can exercise basic freedoms related to speech, property, movement, and equality under the law. Common tactics of closing individual space include formal and informal restrictions on basic rights to assemble, protest, or otherwise exercise free speech; censorship, surveillance, or harassment of cultural figures or those critical of government actions; and scapegoating or harassing identity groups.

Governing: Comprises the role of state institutions, at all levels, within political processes. Typical instances of closing the governing space include partisan control of government entities such as courts, election commissions, security services, regulatory bodies; informal control of such governing bodies through nepotism or patronage networks; and legal changes that weaken the balance of powers in favor of the executive branch.

Examining democratic backsliding through this framework forces practitioners and policymakers to more precisely identify how and where democratic space is closing and who is affected. This enhanced understanding enables officials to craft more targeted interventions.

For example, analysts were quick to note Myanmar’s swift about-face toward autocracy.  This might be true, but how does this high-level generalization help craft an effective policy and foreign aid response, beyond emphasizing a need to target funds on strengthening democracy to reverse the trend? In short, it does not.  If practitioners and policymakers had dissected Myanmar’s backsliding using the six-part framework, it would have highlighted specific opportunities for intervention.  This systematic analysis reveals the regime has closed civic space, via forbidding large gatherings, as well as the information space, by outlawing online exchanges and unsanctioned news, even suspending most television broadcasts.  One could easily populate the other four spaces with recent examples, as well. 

Immediately, we see how this exercise leads to more targeted interventions—support to keep news outlets operating, for example, via software the government cannot hack—that, collectively, can help slow backsliding.  Using the framework also compels practitioners and policymakers to consider where there might be spillover—closing in one space that might bleed into another space—and what should be done to mitigate further closing.

Finally, using this framework to examine the strength of Myanmar’s democratic institutions and norms prior to the February coup d’etat may have revealed shortcomings that, if addressed, could have slowed or lessened the impact of the sudden democratic decline. For example, the high-profile arrest of journalists Wa Lone and Kyaw Soe Oo in December 2017 was a significant signal that Myanmar’s information space was closing. Laws or actions to increase protections for journalists and media outlets, could have strengthened the media environment prior to the coup, making it more difficult for the military to close the information space.

A more precise diagnosis of the problem of democratic backsliding is the first step in crafting more effective and efficient solutions. This framework provides practitioners and policymakers a practical way to more thoroughly examine closing space situations and design holistic policies and interventions that address both the immediate challenge and longer-term issue of maintaining and growing democratic gains globally.

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International Law

Authentic Justice Thus Everlasting Peace: Because We Are One

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The ceasefire in the Israeli-Palestine conflict is a good thing. We thank God for it. Be it between two individuals or institutions or nations or the internal colonial and colonized, war does not do anything except cause more immediate or future mass misery and human destruction. Our continued memories of our interpersonal and international and internal colonial and civil wars and the memorials we erect to remember them recall and record wounds and pains we never get over. 

So it becomes a bothersome puzzle as to why we human beings still just don’t get that war like oppression leads to nowhere except to more human devastation. And we should have learned by now but have not that peacemaking like ceasefires mean nothing without justice.

 It is the reason why I constantly find myself correcting those who stress Peace and Justice.No Justice No Peace is more than a cliche.It is real politic emotionally, economically, socially, and spiritually.

Our American inner cities like those in every continent where culturally different and similar people live cramped impoverished lives and nations and colonial enclaves with such unequal wealth remind us of their continued explosive potentialities when peace is once again declared but with no justice.Everyone deserves a decent quality of life which not only includes material necessities but more importantly emotional and spiritual freedoms and other liberations.Not just the victors who conquer and rule and not just the rich and otherwise privileged.

 And until such  justices are  assured to everyone peacemaking is merely a bandaid on cancerous societal or International conflictual soars which come to only benefit those who profit from wars which are bound to come around again when there is no justice and thus peace such as  family destroying divorce lawyers, blood hungry media to sell more subscriptions , arms dealers to sell more murderous technologies, politicians needing  votes so start and prolong wars, and military men and women seeking promotion while practicing their killing capacities.

So if those of us who devoutly practice our  faiths or our golden moral principles,  let us say always and pray and advocate justice and peace always  as a vital public good  and  do justice then lasting peace in our personal lives and insist that national leaders, our own and others do the same in their conduct of international affairs and affairs with those who are stateless in this global world. 

All such pleading is essential since we are all brothers and sisters in the eyes of God who created all of us  in God’s image as one humanity  out of  everlasting divine love for all of us so we should love each other as God loves all of us  leading to desiring justice and thus lasting peace for each and every one of us.

This is difficult for those in international affairs to understand who take more conventional secular approaches to historical and contemporary justice and peace challenges as if our universal spiritual connectivennes  ( not to be confused with the vast diversity of organized religions)as human beings which makes us all brothers and sisters has no relevance. But if we are going to find true enduring peace we have no alternative but to turn our backs on increasingly useless secular methods which go either way, stressing peace then justice or justice then peace and understand how much we must begin to explore and implement approaches which we look at each other as spiritually connected brothers and sisters in which it is the expectation that peace only comes and lasts when  through the equal enjoyment of justices for every human being, we restore our universal kindred rooted in the everlasting love of God and thus for each other, no matter the different ways in which we define God or positive moral principles which originate in understandings that we human beings in all our diversities are one and thus brothers and sisters.

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