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International Law

China and the SEA in the Asia’s Troubled waters

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Coastal State’s claim over the ocean has been accommodated by the 1982 Law of the Sea Convention (LOSC)  though a quid pro quo arrangement, that is something for something. While Coastal States are given certain degree of sovereignty over their surrounding oceans, yet other states interests should also be respected, which include rights of navigation as well as ocean resources usage rights. While such arrangement can be seen as a ‘package-deals’  offered by the LOSC, however, in practice things would never be as easy as it could be. Complication arising from LOSC’s arrangement varies from geographical condition of both the coastal state and the ocean itself, to broader interests of other states, in this case user maritime states. In addition to this, the problem of maritime delimitation between adjacent states poses another problem.

A never-ended problem related to maritime delimitation as well as access to ocean resources, has been the issue of South-China Sea (SCS). The SCS is a semi-enclosed sea which is surrounded by at least eight States; China, Vietnam, Malaysia, Singapore, Indonesia, Brunei, the Philippines and Taiwan. Such geographic location has made SCS surrounded by the land territory of many states and thus the sovereignty as well as sovereign rights of the surrounding states upon the SCS became complicated. In addition to this, the SCS area consists of four islands, which include Pratas, Macclesfield Bank, Paracels and Spratlys.  Upon such geographical complexion, China declared its claim upon the SCS based on its map known as the nine-dashed lines which encircle almost the entire SCS and within which China claims are China’s historical waters over which it has sovereignty. On the other hand, other littoral states are also claiming sovereignty over small islands in the SCS, namely, Vietnam claims the Spartly Island, while the Philippines and Brunei claims the Kalayan Island Group (KIG).

While the overlapping claims remain, in May 2009 China submit a claim before the United Nations, claiming several islands, which include Spartly, Scarborough Soal, Paracel and others to be included within its territory based on the nine-dashed lines map, combined with occasional references to “historic waters.” In April 2012, the Philippines Navy caught eight Chinas’ fishing vessels in Scarborough Soal waters, that is 220 km off-shore Philippines. Is should be bear in mind that the Scarborough Soal is claimed by several states, namely China, the Philippines and Taiwan. In January 2013 the Philippines submit its objection to the China’s nine-dashed lines to the Permanent Court of Arbitration demanding the cancelation of the nine-dashed line map proposed by China. Permanent Court Arbitration (PCA) resulted on the illegitimate China’s claim, China has asserted that they will not participate on the proceeding and neither obeys the final award of the PCA.

This paper seeks to analyze legal implications upon China’s refusal on PCA’s award to Indonesia’s border security over the waters around Natuna Islands. It further proposed what should be done by Indonesia in anticipating both legal as well as political consequences of such assertive reaction taken by China.

The Philippines vs. China before the Permanent Court of International Arbitration

While conflict between affected littoral states over the South-China Se remains, in 2013 the Philippines brought the case before the Permanent Court of Arbitration. The disputes concerned was on the legal basis of maritime rights and entitlements in the South-China Sea, the status of certain geographic features in the South-China Sea and the lawfulness of certain actions taken by China in the South-China Sea. In brief, basically there are 4 (four) claim submitted by the Philippines before the PCA.[1] Firstly, the Philippines seek advice from the PCA to solve existing disputes over the SCS regarding the rights to occupy the SCS. More specifically, asking PCA to declare that the rights to occupy the SCS should be based on the 1982 Law of the Sea Convention (LOSC) rather than based on ‘historic rights’. Secondly, the Philippines seek advice from PCA to solve maritime delimitation disputes over the Scarborough Shoal and certain resources in Spratly Islands, which has been claimed by both Philippines and China. Thirdly, the Philippines asking the PCA to solve matter related to the validity of China’s claim over the SCS. The Philippines required PCA to deliver award that China has conducted wrong doing upon their actions, as follows:

a.Intervening Philippines’ rights in accordance with the LOSC with regard to fishing, navigation and other natural resources exploration and exploitation as well as the establishment of artificial islands;

b.Has failed to save ocean environment by giving support to China’s fishermen, who has caught the endangered species as well as the use of non-environmental friendly fishing method which lead to the destruction of coral reef ecosystem in the SCS; and

c.Causing the damage on marine environment by the establishment of artificial islands as well as reclamation in the area of seven coral reef areas in Spratly Islands.

Fourth, that China has worsened the dispute by limiting Philippines’ access to Marine Detachment in Second Thomas Shoal.

The SCS case between the Philippines and China, in fact involves various legal aspect. However, crucial aspect that worth to be discussed is the concept of ‘historical rights’ which has been used as legal basis by China in claiming its sovereignty over the SCS. As this turn out, PCA only used the LOSC as valid legal basis in deciding the case. PCA further stated that:

“This arbitration concerned the role of historic rights and the Sumber of maritime entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China that were alleged by the Philippines to violate the Convention. In light of limitations on compulsory dispute settlement under the Convention, the Tribunal has emphasized that it does not rule on any question of sovereignty over land territory and does not delimit any boundary between the Parties”. [2]

In its decision, PCA was unanimously giving award to the Philippines and declared that “the Tribunal concluded that, to the extent China had historic rights to reSumbers in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention. While the award clearly stated that ‘historical rights’ were incompatible with LOSC, it is interesting to find out the origin of ‘historic claim’ as well as analyzing whether the term ‘historic rights’ and ‘historic waters’ ever exist within both LOSC and other customary international law of the sea.

Figure 1: China’s nine-dashed lines covering vast majority of the SCS areas

Legal Implication on China’s refusal upon PCA Award

Upon PCA award, Chinese Government insists on the position that it will not obey PCA Award due its absence during the trial. This position was stated clearly by China through diplomatic notes titled “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of Philippines”  dated 7th December submitted before the court and Netherlands Government. In sum, the diplomatic notes declared as follows:

“It is the view of China that the Arbitral Tribunal manifestly has no jurisdiction over this arbitration, unilaterally initiated by the Philippines, with regard to disputes between China and the Philippines in the South China Sea.

Firstly, the essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant maritime features in the South China Sea, which is beyond the scope of the Convention and is consequently not concerned with the interpretation or application of the Convention.

Secondly, there is an agreement between China and the Philippines to settle their disputes in the South China Sea by negotiations, as embodied in bilateral instruments and the DOC. Thus the unilateral initiation of the present arbitration by the Philippines has clearly violated international law.

Thirdly, even assuming that the subject-matter of the arbitration did concern the interpretation or application of the Convention, it has been excluded by the 2006 declaration filed by China under Article 298 of the Convention, due to its being an integral part of the dispute of maritime delimitation between the two States.

Fourthly, China has never accepted any compulsory procedures of the Convention with regard to the Philippines’ claims for arbitration. The Arbitral Tribunal shall fully respect the right of the States Parties to the Convention to choose the means of dispute settlement of their own accord, and exercise its competence to decide on its jurisdiction within the confines of the Convention. The initiation of the present arbitration by the Philippines is an abuse of the compulsory dispute settlement procedures under the Convention. There is a solid basis in international law for China’s rejection of and non-participation in the present arbitration.

Furthermore, China added more statement “[t]his shall by no means be interpreted as China’s participation in the arbitral proceeding in any form.”  Upon such situation, Article 288 of the LOSC and Article 9 of LOSC’s Annex VII provide:

a.Article 288 of the Convention provides that “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.

b.Article 9 of Annex VII to the Convention provides that “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.”

It is clearly stated that in the situation whether the arbitral have competence in deciding certain case, the authority to decide is the arbitral itself and not the parties. In addition to this, in the absence of one party in the dispute, another party have the right to ask the arbitral to continue the proceeding. Thus, it is submitted that the absence of one party cannot prevent the proceeding to be continued.             On the awards on jurisdiction, PCA considered the application of Article 281 and 282 of the LOSC, which allow a state to apply other dispute resolution method outside the LOSC, if the parties agreed to. Article 281 and 282 of the LOSC read:

“If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.

If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.”

PCA considered the application of Article 281 dan 282 upon the following documents to find out whether both parties have agreed on other dispute resolution method; (a) the 2002 China–ASEAN Declaration on the Conduct of Parties in the South China Sea (the “DOC”), (b) a series of joint statements issued by the Philippines and China referring to the resolution of disputes through negotiations, (c) the Treaty of Amity and Cooperation in Southeast Asia, and (d) the Convention on Biological Diversity (the “CBD”) .

Nevertheless, PCA refused China’s argument which stated that the Document of Conduct (DOC) agreed between ASEAN and China was a political agreement and did not intended to be a binding agreement which is applicable in disputes resolution method.  Since the DOC is silent on the binding settlement mechanism,  and does not exclude any other dispute resolution method,  it is argued that PCA can decide based on Article 281 and 282 of the LOSC. PCA also finds out the same conclusion relating to Joint Statement mentioned in China Diplomatic Notes.  In relation to the Treaty of Amity and Cooperation in Southeast Asia and the CBD, PCA declared that while both agreements bind parties in the disputes resolution chosen by the parties, there is no binding mechanism within the agreement whatsoever.  To conclude, there is nowhere in those agreements prevent the Philippines to bring the case before the PCA.

As this turn out, PCA reward the Philippines and declared that China’s Claim over the SCS with its nine-dashed lines as illegal and found China to be guilty of conducting illegal maritime activities inside the Philippines’ exclusive economic zone. Upon such award, as stated, China refused to apply the award in any cases. Furthermore, instead of moving away from the disputed area, Chinese military and non-military vessels have regularly undertaken activities to strengthen their de facto control of the area. China seems to undertaken the passive assertiveness over the area and avoiding assertive action which could lead to incident, while also expanding its movement in the SCS.  This condition brings several legal implications to the neighboring adjacent states surrounding the SCS, especially to ASEAN’s member states. This includes an increase of China’s maritime power within the South Asia region, which also effect the South-East Region.

In addition to this, it is assumes that China will strengthen its domestic law in claiming several areas in the SCS. This way, a potent disputes may arise between China and other claimant states, in particular ASEAN’s member states. China aggressive response to the PCA’s award might also bring further legal implication for less affected state like Indonesia. While the SCS dispute does not directly affected Indonesia at the moment, however, it might affected in the near future. As an archipelagic state, Indonesia is entitled to draw archipelagic baselines connecting the outermost point of its outermost islands.  Despite the fact that Indonesia does not claim any of the disputed islands located in the SCS, Indonesian has an outer island group, the Natuna Islands, which are adjacent to the SCS.  These Islands are used as Indonesian basepoints. Due to Indonesia’s sovereignty over the Natuna Islands, consequently Indonesia has the rights over certain areas of waters measures from Natuna’s baselines in accordance with international law. From this baselines Indonesia also entitles various maritime zones established by the LOSC.

This results in the fact that Indonesia has to share such ocean with neighboring states which are also claimant states in the SCS dispute, namely Malaysia and Vietnam.  While agreement has been reached over delineating the continental shelf between states, Exclusive Economic Zones (EEZ) delimitation remains unsolved. If China strengthen its nine-dashed line claim and keep asserting its military power within the area, it is possible that China and Indonesia involve in a disagreement on maritime delimitation around Natuna Islands.

Conclusion

Prior to the PCA’s award, Indonesian President, Mr. Joko Widodo, commented on the matter of the SCS disputes saying that while Indonesia is located considerably near to the SCS, yet Indonesia does not have a direct interest in the SCS. However, recent development shows different position. During President Jokowi’s visit to Natuna Islands recently, it was reminded that in 1996 China has recognized Natuna’s waters as Indonesia’s Exclusive Economic Zone (EEZ).

This paper argued that while the SCS disputes so far does not have direct impact on Indonesia, yet, some areas of Indonesia’s EEZ in Natuna Islands overlap with the China’s nine-dash line. Since China has declared to refuse the award of PCA, Indonesia should make further legal and policy framework in implementing its sovereign rights over its EEZ in Natuna Islands. In addition to this strong political assertion should also be taken in anticipating china’s movement in the SCS through its nine-dash line claim.

  • [1] Read further Kristiyanto, Kristiyanto, Puspitawati, Dhianadan Ardhiansyah, Agis, Konsep Historical Rights dalam SengketaLaut Tiongkok Selatan berdasarkan Putusan PCA Case Number 2013-19 in the Matter of the South China Sea Arbitration between the Philippines and China, Final Essay, Law Faculty, Brawijaya University, 2017
  • [2] Press Release Permanent Court of Arbitration tertanggal 12 July 2016 which giving unanimous award to the Philippines over the SCS disputes.
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International Law

The United Nations: Expectations vs Reality

Javier Delgado Rivera

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“Alarm bells are still ringing. We face a world of trouble.” This was the distressing warning given by António Guterres, the United Nations (U.N.) Secretary-General, during his remarks to the U.N. General Assembly at the start of the year.

2018 was indeed a harsh year. The U.N. is always expected to play an appeasing role wherever peace and security are under threat. But the organization does not always have enough clout to silence the guns. As a result, last year the U.N. was unable to help bring stability in places like Afghanistan, Myanmar’s Rakhine State, Eastern Ukraine or between Israel and Palestine, to name just a few trouble spots. In the last two cases, disagreements in the Security Council help perpetuate current deadlocks.

On top of this, last year the U.N. refugee agency in the Occupied Palestine Territories (known as UNRWA) faced an unprecedented financial crisis after the U.S. cut its $300 million contribution. (The Agency was able to make up for the shortfall through additional donations from other countries and institutions). Yet the financial footing of the Agency remains so precarious that its chief has just requested US$ 1.2 billion to fund aid programs for 5.4 million Palestine refugees across the Middle East.

But 2018 was not all gloomy for the multilateral organization. Last year saw the adoption of the U.N.-led Global Compact for Migration. This non-binding pact, signed by 164 countries (out of 193 U.N. member states) in December, aims at strengthening regional and international collaboration in the management of migration flows. Claiming that it would obstruct efforts to control migration, the U.S., Israel, several E.U. countries and Australia did not join the accord. In early January, Brazil announced that it will abandon the accord.

The U.N. can also take some credit for forcing North Korea into the negotiating table. Last June’s summit in Singapore between the country’s leader Kim Jong-un and U.S. President Donald Trump came at the back of the harshest sanctions the U.N. Security Council has ever imposed on the Asian country. Moreover, an unusual visit in December 2017 by the then U.N. political chief to North Korea paved the way for the easing of tensions. Yet as Washington and Pyongyang gear up for a second summit in late February, a recent U.N. report claims that North Korea’s nuclear and ballistic missile programs “remain intact” and its leaders are dispersing missile assembly and testing facilities to prevent “decapitation” strikes.

On a housekeeping note, a recent important highlight has been the reform of the organization’s Resident Coordinator system. In January 1st U.N. country-offices gained more autonomy from headquarters, so that decision-making in development assistance, among other crucial work, can be done closer to the people that need it. This is part of a major restructuring of the U.N. system, which in addition to its international development area encompasses U.N. management and the organization’s peace and security pillar.

All while the U.N. Secretariat achieves, for the very first time, gender parity in its senior management positions – although the same cannot yet be said of other levels and departments.

The 2019 menu: frictions, priorities and conflicts

The year 2019 kicked off with the opening a major area of friction among key U.N. member states. In mid-January Palestine ­(a U.N. non-member observer state) took the 2019 chair of the G77 group of developing countries plus China. The U.S. and Israel objected to the move, which they saw as allowing the Palestinians to act more like a full U.N. member state this year. The G77 is currently comprised of 134 states and was established to sharpen the negotiating capacity of its members on economic matters.

In late January, at the World Economic Forum in Davos, António Guterres outlined his three priorities: 1) to prove to those reluctant to multilateralism that the U.N. is a vital actor to solve global problems; 2) to simplify and make the U.N. administration more transparent; and, 3) to show the added value of the organization.

These priorities represent just the tip of the U.N. iceberg. During 2019, the UN will have to accelerate efforts to achieve the Sustainable Development Goals (SDGs). As Guterres himself put it, “we need a sharper focus on what works in reducing poverty and inequality, and in delivering strong and inclusive economies while safeguarding the environment.” On this topic, a key date will be September 23rd, as Guterres will convene a Climate Action Summit in New York to mobilize public and private action to, among other objectives, increase financing to combat climate change: “the defining issue of our time,” as Guterres likes to describe it.

But it is Syria, where one the most lethal conflicts after the II World War is still being waged, that poses one of the greatest immediate challenges for the organization. The Norwegian Geir O. Pedersen, Guterres’ new Special Envoy for Syria, will try to mediate a political solution to a conflict in which the regime of Bashar al-Assad, with the support of Russia and Iran, has prevailed after a civil war that has already claimed more than 500,000 lives.

Further south, in Yemen, where the world’s worst humanitarian crisis has been unfolding since 2015, a U.N.-brokered ceasefire (last month’s Stockholm Agreement) has so far avoided a devastating full-fledged military confrontation in the key port city of Hodeida.

Although it is Africa where most of the U.N. peace and security work focuses. With volatility reigning in countries like Libya, Mali, South Sudan, Somalia, the Central African Republic and the Democratic Republic of the Congo, the continent hosts seven of the current fourteen U.N. peacekeeping missions.

And if all this were not enough, the current presidential crisis in Venezuela has again reopened the same fractures at the Security Council (i.e. Russia and China opposed to any type of foreign interference) that prevented the organ from taking action in places like Syria and Ukraine.

Somehow naively, the U.N. is always expected to resolve the most pressing crises that erupt around the world. As we have seen, the reality is very different. And 2019 will not be an exception.

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International Law

The normative context in defining ‘refugees’

Janakan Muthukumar

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Photo Credit: © UNHCR/Ivor Prickett

Contextual challenges in recognizing refugees

The Refugee Convention articulates that for any person to be qualified to be a refugee that person must have been outside from the country of his nationality due to the fact of a well-founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group or for having a particular political opinion. However, the Convention also in its stand approves that any person who has already been considered as a refugee under any treaty arrangements prior to this Convention would also be considered as refugees. The definition provided in the Convention is comprehensive, in a way that considers the cultural changes, and the interpretation includes the fear of persecution not only by the state actors but also by non-state actors.

However, there are also a number of restrictions, such as if a person voluntarily re-availed him or herself of the protection of his/her country of nationality, or has voluntarily reacquired the nationality of their state, the definition of refugees would not be applicable.  Further, if the state ceased to exist under the ‘cessation’ clauses, although according to the UNHCR, such clause required to be invoked sparingly, there is a possibility where the person may not fit within the definition provided by the Convention.  Nonetheless, the provision in the Convention so far has been interpreted broadly, in a way that the refugee status will not be considered to be ceased as long as the situation in the state of origin remains a danger.

Irrespective of these restrictions, the Convention remains as the central pillar, customarily interpreted in reflecting its objective and purpose of it – protecting individuals in need. Although in cases the general instability was found as a factor which is inconsistent to the prevent cessation of status, particularly due to the effect of persecution, it has also been considered as a viable internal alternative, which demonstrates that the customary interpretation of the Convention is limited. In other cases, the general instability was found as a ground for subsidiary protection that said, although the Convention fails to provide the required protection, still the state is obliged to grant such protection. Further, the Convention contemplates that irrespective of the condition of persecution remains a qualification, an individual could still qualify as a refugee given the fact there are compelling reasons arising from the previous persecution, commonly referred as ‘exemption from cessation.’ This exception applies only to the ‘statutory’ refugees, i.e. individuals who are eligible as refugees under the Article 1A (1) of the Convention: who were prior to the Convention were recognized as refugees. Further, the state practice is also contributing in extending the ‘exemption from cessation’ in protecting Convention refugees, irrespective of the fact, that the UNHCR noted clearly that such interpretation is not required by the Convention.

Nonetheless, the extent of the state practice creates now the customary norm, requiring this application, to be a purposive one. However, limitation applies under the exclusion clauses from the protection of non-refoulment to anyone qualify as a refugee under the serious reasons for consideration for have committed a crime against peace, war crime or crime against humanity or poses a compelling threat to national security or public order to the security of the country of refuge, where the individual who has already qualified as a refugee would subsequently lose the status. Note, however the exclusion clauses themselves have exceptions, such as child soldiers, decided in the case of AG v Zaoui by the Supreme Court of New Zealand, reflected on refoulment that goes hand and hand with the jus cogens status on preventing torture, noted that “[t]he prohibition on refoulment to torture has the  status of a peremptory norm or jus cogens with the consequence that article 33.2 [of the Refugee Convention] would now be void to the extent that it allows for [refoulment in such circumstances].” This implication of flexible application of the Convention was not only followed throughout the judicial decisions but also by legislative actions such as by the Council of Europe on the Recommendation 773, which recommended the European Union members to apply the definition of refugee liberally as amended by the Protocol of the Convention.

Evolution of a definition under the customary international law

As discussed above although the Convention has not amended explicitly in revising the definition of refugees, it has been customarily broadly interpreted as to justify the object and purpose. Although there has been an argument that the definition of refugees does not appear under the customary international law, but under treaty law, authors alike Hailbronner believes that the international obligation to grant protection to the victim is a ‘wishful legal thinking’, thus reflection through the state practice is a viable option. The American Society of International Law also produced that the human rights instruments are required to be read as a whole, thus protection prescribed in the Convention could be applicable to persons who enjoy any sort of non-refoulment. Thus, non-refoulment is a general principle, which Bazo also agrees that any individual who has the right to be protected under the international law must be covered by the definition of refugees. However, these arguments would be only valid if there are an extensive state practice and opinio juris to support the argument.

Regarding the state practice in expanding the definition of refugees, the reason for the primary expansion is because of civil wars, ethnic and communal conflicts and natural disasters, and of the acceptance that the international law can expand itself through custom. The Statue of the International Court of Justice prescribes that ‘evidence of a general practice accepted as law is law’ based on two elements: state practice which is described as a widespread and consistent practice of the states and opinio juris, the subjective belief of the state that engages in that practice, believing it as a requirement, not as an option. In this context, the statistics reveal that according to the UNHCR around 9 million individuals who have been identified as refugees, deserve protection, which from the state practice guidance provided in the case of North Sea Continental Shelf and of the history of the states to recognize and receive refugees to their respected nations represent the widespread practice, further be recognized not only through the subjective believe that it is the responsibility to protect refugees under the outgrown opinion juris, but also an international obligation under the treaty provisions such as Conventions Against Torture (CAT), and of the peremptory norm, jus cogens.

Defining Refugee through International Agreements

Although number of international instruments address the refugees in various stands, the Convention of the Organization of African Unity (OAU) on Refugees expands the definition of refugees includes, the people who displace due to the ‘external aggression, occupation, foreign domination or events seriously disturbing public order.’ Although there have been arguments that the intention of the drafters of the Convention was reflecting the post-colonial context, the fact that the Convention was signed by a number of largest recipients of refugees including Kenya, Uganda, Sudan, Zambia, Egypt and Tanzania makes the validity of the claim of the Convention in expanding the definition of refugees. In one step further, the states such as South Africa, Tanzania and Uganda adopted the Convention into their municipal laws impacts on the state practice, form a customary international law in expanding the scope of the definition of refugees. As such, the Bangkok Principles on the Asian -African Legal Consultive Organization also claims similar expansion in the definition of refugees, specially accepts the concept of refugees sur place, also claims the definition to cover any individual who was expelled from a state where his or her life or liberty is threatened for the reasons of race, colour, nationality, ethnic origins, etc.

The Cartagena Declaration focused on the forced migrants in Central and South America noted that Article 1(2) of the OAU Convention as the starting point of defining refugees, the declaration was although not legally binding in nature, endorsed by the Organization of American States, the UNHCR Executive Committee, further cited in the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americans. It was signed and ratified by most of the American states, including Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua and Venezuela. The Mercosur Rio de Janeiro Declaration further provided expanded definition includes not only to the individual whose life is threatened for the reasons of race, colour and nationality etc., as provided in the previously discussed declarations, but also the victims of a generalized violation of human rights. The declaration itself expresses the state practice by accepting the geographically diverse practice to support the existence of the customary international law.

The Refugee Convention, its Protocol of 1967, and the Protocol relating to the Status of Refugees 2001 attribute the expanded version of the definition of refugees, also affirms the important of the human rights and regional refugee protection instruments which by doing it expresses the obligation of the states to carry the burden for the stronger existence of opinio juris.

There has been also the subsidiary protection provided in the international agreements based on the context of persecution, often those individuals protected are referred as de facto refugees: the refugees who need are seen as legitimate, however, they would not qualify under the Convention. However, looking at the intention of the drafters of the Convention, it is expressed that the provisions of the Convention can be interpreted in a way to cover these expanded group of persons. However, there has been debate about this status, which was particularly addressed by the European Union in the context when considering the minimum standard of the directive failed to cover subsidiary protection. Although the directive models the Article 1(F) of the Convention, there has been no legal obligation to follow the terms, nor required to be supplemented by humanitarian assistance. Nonetheless, there are a number of international treaties calls for the subsidiary protection, such as the International Covenant on Civil and Political Rights (ICCPR) and the CAT in particular, the Article 3 which prohibits refoulment of a person, ‘where there are substantial grounds for believing that he would be in danger of being subject to torture.’

The European Convention on Human Rights and the American and African Charters make similar provisions on torture, establishes that the protection must be given to an individual when he is in ‘real risk.’ The EU Minimum Standards Directive 2004 particularly requires the member states to receive asylum application on the basis of the subsidiary protection who cannot go back to the country of origin because of serious harm, which includes death penalty or execution, torture and inhuman treatment or any other form of serious and individual threat to the civilian’s life by indiscriminate violence caused by the international or non- international armed conflict.

The state practice and the opinio juris have also been recognized in the context of refugees by the practice and mandate of the UNHCR that contributes to the formation of customary international law. It is because the organization embodies the state practice through being represented by the state delegates, or where the state cites the mandate of the organization being supervisory expresses opinio juris that the legal standards applied by the organization are accurate and the delegation by the states to the UNHCR could determine the status of refugees. In this context, the practice of the UNHCR cannot be dismissed, a representative opinio juris that is effective.

The Council of Europe through its Recommendation 18 of 2001 and by case laws such as in the case of Elgafaji v. Staatssecretaris van Justitie, Case C-465/07, 2009 E.C.R., argues for the qualification for the subsidiary protection which does not require to be a specifically targeted for harsh treatment, but as far is it fulfill ‘serious and individual treat’ due to the indiscriminate violence. It is to note that the EU did not broaden the definition of refugees, but provides legal standings for subsidiary protection, an expression of the opinio juris for the subsidiary protection.

Normative restrictions on the definition of refugees

Although the above discussion expresses that the definition of refugees has been expanded in a way to cover individuals, not just those facing the risk of persecution, there are also the existence of the negative impact of the customary international law that narrows the definition, particularly when there is a treaty provision which contrasts to the intention of the customary international law in this matter in particular.

One method the states adopted in narrowing the scope of the application of refugee law is by interpreting the territorial application of the Convention, which affects the determination of when an individual is outside his country of nationality. For an example, the US Supreme Court ruled that the Convention is not applicable outside the territory of the United States, whereas Russia interpreted in the same manner, along with interpreting the definition of territory.

The second method is by providing alternative relocation. Courts found when there is a possibility for the individual to relocate within the state of nationality, the application for refugee status can be rejected. However, in this context states found it from two approaches. First is to see whether there is genuine access to the areas of domestic protection, where the state can ensure the protection is meaningful, and the protection is not unpredictable. The second approach is comparing the situation of the area where the individual currently situated and the characteristic of the proposed area of protection, which is the approach the UK finds through the case laws since the first approach does not go along with the EU Council Directive 2004/83/EC.

The third method of the states enforce is applying the third country or safe country of origin tests to refuse the claims for asylum, in the basis that if the individual is coming from a country that has been deemed safe, then there is no requirement to provide asylum.

The fourth method is enforcing prohibitions on applying for recognition of refugee status through regulations under certain circumstances. Although it in first hand appears as it does not narrow the definition of refugees, but the fact the burden of proof is placed on the applicant that he has no disqualifying act or condition such as in the cases of terrorist suspects, such as in the case of Bundesrepublik Deutschland v. B, Case C- 57/09, 1990 E.C.R. and Bundesrepublik Deutschland v. D., Case C-101/09, 2010, severely affects the scope of being defined as a legitimate refugee. Further, broadly interpreting the acceptable criteria that the Convention spells out for refusing the refugee status, have certainly undermined the scope of the Convention, that indirectly impact in the definition and scope of refugees.

The fifth method is providing diplomatic assurances while refusing to accept the refugees, which is still remaining controversial. It was argued against by the UN Special Rapporteur on Torture as an ineffective approach has been used by states. The MOU signed by the UK with Jordan, Libya and Lebanon to provide blanket assurance is a clear example of it, which the Council of European Commissioner for Human Rights argued that “[t]he weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances, there is clearly an acknowledged risk of torture or ill-treatment.”

In these contexts, this essay concludes that although normatively the definition of refugees has extended, the governments have been using different mechanisms in restricting the scope of it by not willfully restrict the definition, or contrast the customary international law, but by going around the definition, that has substantially weakened the entire legal scope of the extension of the definition so far has been built up by the customary international law.

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International Law

Human Trafficking in South Asia: Combating Crimes against Women

Dr. Nafees Ahmad

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Human trafficking is a lucrative crime with instant results, an offence of grave circumvention of human existentialism and a slap on the global security wall. While confronting human trafficking still remains an unfulfilled obligation of the international community as it is a global problem. However, SAARC has also committed to stamping it out while realizing its causes such as rampant poverty, inaccessible healthcare, gender discrimination, class conflicts, and minority injustices. South Asia is a region that is encountered with challenges of human rights such as prevention of human trafficking in women and children for prostitution, devising legal protection for children and evolving mechanism for combating terrorism. In South Asia, human rights discourse has become more intense in the wake of external castigation of its human rights record. Indeed, many Western governments and human rights watchdog institutions perceive South Asia as a reservoir of multi-dimensional discrimination in every walk of life. SAARC governments are mired in human rights transgressions contrary to their constitutional vision, mandate, and the rule of law, democracy, and good governance. South Asian consciousness against corruption, respect for governance institutions, human dignity, and probity in public and private life have been depleting at a pace that has not been experienced before.

Norberto Bobbio—an Italian philosopher—rightly expressed that the supremacy of human rights in present political and legal discourse as a revolutionary upsetting of the primordial practices in ruminating the primary task of moral philosophy to evolve in the designing of a compendium of duties instead of rights. From Two Tablets of Moses to Cicero’ De officiis including Immanuel Kant’s Sittenlehre which was construed as an edifice of duties raising the question in Kant’s second Critique is not “What are my rights?” but it posed “What should I do?” Therefore, the human rights situations of SAARC region cannot be assessed in total disregard of its historical and regional circumstances, nor can it be analyzed as per the preconceived model, tradition or standard of another region. Therefore, people of South Asia derived their viewpoints on human rights issues from their historical circumstances and practical experiences and formulated relevant policies and laws. However, Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000):

“Trafficking in Persons’ shall mean the recruitment, transportation, transfer, harbouring and receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

In this context, it is everyday human rights issues that determine the directions in which people are capable of living their lives in South Asia and elsewhere, they are of tremendous significance not only to all of us as individuals but also to us as members of South Asian society. Therefore, everyday human rights issues should be central to our collective social memory and practice just like certain international and domestic human rights events, victories, abuses and personages. The challenge, however, lies in trying to make these everyday issues attractive and newsworthy enough to capture people’s attention. What role can media play in illuminating these everyday human rights issues? Let’s try critically to analyze the questions arising out of the “SAARC Convention on Combating and Prevention of Trafficking in Women and Children for Prostitution”, the strengthening and enforcing of SAARC Convention on Promotion of the Child Welfare in South Asia and SAARC Regional Convention on Suppression of Terrorism in the light of on-going conceptual deliberations.

Human trafficking comes with a modern visage that derives its contours from antiquity and known as modern day slavery. Human trafficking is resorted by employing fraud, force, and coercion for prostitution, debt bondage, forced labour. Age and gender barriers are irrelevant in human trafficking as it is evident from the trafficked women of all ages, men, young children and teenagers. However, human trafficking is a global issue that has been affecting Global North and Global South countries alike and attained the proportions of organized crime. Human trafficking in women and children for prostitution has become a global trend and an offense that has been mushrooming and affecting almost every nook and corner of the world both as sources of passage or destination country. As per the UNODC (United Nations Office on Drugs and Crimes), victims from at least 127 countries have been recognized, and it is projected that a criminal is exploiting more than 2.4 million people at any given time. The ILO expects that there are 2.4 billion people in the world at any given time involved in forced labour and subjected to exploitation due to human trafficking. Around 800,000 women and children are trafficked every year across international borders out of which 80% are ending in forced prostitution. This projection does not include those trafficked within their own countries or missing children. Human trafficking in women and children for prostitution is a grave violation of human rights and has been regarded as a modern form of slavery. The United Nations projects that the trafficking of women and children for forced prostitution in Asia has victimized more than 30 million people. According to the OECD Reports, the human trafficking industry ranks among the top three highest grossing illegal criminal industries along with illicit drugs and arms. The study shows that over 160 countries across the world are known to be affected by human trafficking. It means that human trafficking is a terrible global reality and statistics adumbrated above would bleed the heart of every right-thinking person.

Thus, human trafficking poses an extreme threat to human rights and human dignity of considerable people in various parts of the world. It stays one of the least understood forms of transnational crime, with significant gaps existing in both the data on the incidence as well as differences in the ability of lawmakers to appropriately address the problem in their respective countries. Human trafficking is a life-threatening violation of human rights because of the involuntary manner in which trafficked victims are entrapped, transported, recruited and subsequently subjected to abuses and exploitation. The UN Office on Drugs and Crime, Regional Office for South Asia, (UNODC-ROSA) and the UN Women, South Asia signed a Memorandum of Understanding under which they committed to strengthening the present levels of cooperation in dealing with the organized crime of human trafficking in the eight SAARC countries. According to Article 1 of the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002 “trafficking” denotes that the:

“moving, selling or buying women and children for prostitution within and outside a country for monetary or other considerations with or without the consent of the person subjected to trafficking.”

Unfortunately, there is no universal definition of trafficking, and the SAARC domestic laws even now lack a shared understanding of trafficking. Although India has a specific law on trafficking, but it does not define trafficking; it represents “prostitution” to have the usual attributes of trafficking for sexual exploitation. However, to determine the efficacy of criminal justice systems in South Asia and their effectiveness in addressing trafficking, it is essential to compare the standards in South Asia to the UNTOC standards as embodied in the Trafficking Protocol. The Protocol is reasonably comprehensive regarding looking at a variety of strategies to combat cross-border trafficking. Therefore, these gaps have raised several questions which have to be attended such as:

How to identify the administrative weaknesses in the enforcement system of anti-trafficking mechanism on a comparatively footing in South Asia?

Why there is a low number of arrest, prosecutions, and convictions for human trafficking in SAARC jurisdictions?

What are the reasons for insignificant legal integration of human rights, gender and child rights in domestic anti-trafficking laws and policies in SAARC countries?

What is the threshold of repressive state protection, prevention efforts in trafficking prone areas in SAARC jurisdictions?

Human trafficking encompasses recruitment, transfer, transportation, harbouring of persons through the use of duress, force, fraud, or coercion for exploitation. Economic inequalities, social disparities, and politico-cultural conflicts have led to the human mobility within all SAARC jurisdictions and across the borders in South Asia. Globalization has encouraged free movement of capital, technology transfer, expert exchanges, and sex service tours. Socioeconomic dependency, gender disparity, Illiteracy, cultural stereotypes, violence, social stigmatization, and endemic poverty inter-aliasociological deprivation of women and children in power-sharing, non-negotiable situations that have pandered to the emergence and mushrooming of the commodious problem of women trafficking in the entire SAARC region. This alarming spread of sex trafficking has fuelled the spread of HIV infection in South Asia, posing a unique and severe threat to community health, poverty alleviation and other crucial aspects of human development. Although the SAARC Convention on Trafficking in Women and Children has been a significant breakthrough, most of the SAARC countries do not have anti-trafficking legislation or means to protect the victims. Therefore, SAARC countries must make a concerted effort to treat women trafficking victims as “victims” of human rights transgressions in all their anti-trafficking policies and practices.

Abolition of women trafficking is inescapably a long-term process that involves a catena of causes like poverty, education, gender inequality, minority rights, and healthcare along with dismantling the actions of criminal syndicates. By its very nature, women trafficking for prostitution are a surreptitious crime for which adequate and comparable statistical data is rarely available. As of January 2017, 170 nation-states have ratified the Additional Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children to the UN Convention against Transnational Organized Crime which was adopted in 2000 (also known as Palermo Protocol) and India has even ratified it. The Palermo Protocol was the first international legally binding instrument with an agreed definition of human trafficking. However, there is an urgent necessity for greater collaboration between security agencies of South Asian countries to protect the victims. The key challenges to human trafficking in South Asia are porous borders, growing trade links, incoherent approach, lingual hurdles and time-consuming process of identification, verification, coordination, and implementation. Thus, it highlights the need for greater collaboration and assistance to rehabilitate and rescue victims of trafficking. At the same time, the UNODC South Asia must assist SAARC countries to develop comprehensive and sustainable responses to trafficking in persons. Such interventions include the prosecution of perpetrators, protection, and assistance of victims and, most importantly, prevention measures. SAARC jurisdictions countries have to have a unified and integrated action against human trafficking in the spirit of shared responsibility.

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