paris

France: Safe State or Police State?

Summary: France introduces new controversial terrorism bill but faces large resistance from European Union and human rights organizations.

On November 1st, French President Emmanuel Macron signed into law a controversial anti-terrorism bill that would make permanent some of the conditions that were enacted under the state of emergency declared by President François Hollande in 2015. The new bill allows police to search property, conduct interrogations, and make arrests, all without a warrant, should the police believe the suspects to be of a threat to national security. Prior to the declaration of the the state of emergency, such acts would have required approval from a judge.

Concerns have been raised by humans rights group from within and outside France. The groups are worried that the vague language of the bill — that allows law enforcement to close mosques that they accuse of preaching hate — will be used to discriminate against the Muslim people of France. Fionnuala Ní Aoláin, the United Nations special rapporteur on the protection of human rights while countering terrorism, said on September 22nd that the legislation offered only “vague definitions of terrorism and threats to national security” and exacerbated “concerns that the powers may be used in an arbitrary manner.” She is also worried that the bill removes judicial oversight of these programs, leaving them to do as they see fit. French political scientist, Patrick Weil, is most concerned about what the bill allows to be classified as probable cause. The vague language of “threat” has allowed police to classify a person’s immigrant status as enough to justify a stop-and-frisk type search.

This debate of security versus civil liberties always resurfaces during times of terrorism. The same discussion could be seen in Britain during the bombings carried out by the IRA and, most notably, in George Bush’s creation of the Patriot Act in the United States. The question focuses around whether the concession of certain liberties such as the right to due process is worth the criminals who may be caught by the tighter restrictions. Of the 3,600 raids conducted as of October 3rd, only eleven resulted in criminal proceedings. But is that the mark of an inefficient system or is it instead eleven more potential Nice or Paris attacks that are prevented?

The issue of security versus civil liberties seems to be an almost paradoxical one. Laws providing extraordinary power to government agencies in the name of security are often designed to protect the exact civil liberties they end up infringing. When a stop-and-frisk law is implemented, one of the original justifications is to protect people’s right to feel safe outside their homes. But this fails when people are now afraid to leave their homes due to fear they may discriminated against and harassed by the enforcement of this law. In the case of France, the police are now allowed to search people’s house without due process so everyone else can feel safe in their house. But if a person’s house could be raided by the police any time just based on suspicion, then people are not really safe in their houses anyway. If police can shut down places of worship so that other religions can feel safe practicing their right to freedom of religion, then freedom of religion does not really exist. Tom Mockaitis, a professor at DePaul University specializing in international security and counter-terrorism, pointed out that “freedom entails risk. North Korea has suffered no terrorist attacks, but no one wants to live there. Western Europe and the United States have been struck repeatedly, but they remain the destinations of choice for those fleeing oppression or seeking opportunity.” Somewhere in this debate, there is a happy medium that prevents terrorist attacks on innocent people but does not instill the same fear that the terrorists were attempting to do in the first place anyway.

As Europe continues to face an unprecedented rise in terrorism, conflicts between national attempts to combat these threats and the rules of the European Union are beginning to reach a boiling point. On November 7th, the European Court of Human Rights began hearing a UK surveillance case where eleven different human rights organizations claimed that the British government’s mass collection of civilian data in the name of security was an infringement of their right to privacy afforded to them as members of the European Union. Considering how vocal Macron has been about revisiting the terms and conditions of France’s role in the European Union, maybe the conflict over the implementation of these types of laws will be the final straw that initiates “Frexit.”

Hunter Snowden is a junior majoring in Political Science and Philosophy from Dallas, Texas.

Duterte

Law and Order: The Philippine War on Drugs

Summary: In the year and a half since Rodrigo Duterte became president of the Philippines, thousands of Filipinos have died as a result of his extreme anti-drug policies.   

On June 30th 2016, Rodrigo Duterte assumed office as the 16th president of the Philippines.  He was elected by a landslide, with nearly twice the votes of the runner-up.  During his campaign, Duterte came under fire for everything from expletive-laden speeches in which he compared himself to Hitler to calling his own daughter a “drama queen” after she said she had been raped, yet it was his drug policy that drew the most attention.  In one speech, Duterte famously claimed, “There’s three million drug addicts.  I’d be happy to slaughter them.”

Even as mayor of Davao, Duterte was known for being tough on crime. He implemented armed civilian militias who were allowed to target anyone who posed a threat “to public order.”  The eradication of crime was a major cornerstone of Duterte’s presidential campaign, as he billed himself as the law and order candidate.

Death count estimates vary greatly, with some ranging as high as 13,000.  A series of high-profile deaths began to erode public confidence in Duterte.

In February 2017, a South Korean businessman was kidnapped and killed by the police, which led to Duterte temporarily suspending the anti-drug enforcement of the national police, but he later reversed this decision.

For the first year of his term, Duterte polled well with his constituents–but in August 2017 his popularity began to wane after police killed 96 people in Manila in what they called a “one-time, big time crackdown.  In particular, the death of 17-year-old Kian Loyd delos Santos attracted national attention when surveillance footage contradicted police testimony that delos Santos had resisted arrest.

The bad publicity prompted Duterte to again pull the police force off of drug crackdowns.  He decided that the Philippine Drug Enforcement Agency would handle all cases moving forward.

Capital punishment was abolished in 2006, under President Gloria Macapagal Arroyo, but in March 2017, the Philippine House of Representatives passed House Bill 4727, which reinstated the death penalty for drug offenses. These extra-judicial killings also violate sections 1, 12, and 14 of the Philippine Bill of Rights, all of which deal with due process.

When the EU, the UN, and the US condemned the ‘War on Drugs,’ Duterte accused the West of hypocrisy.  Although Duterte’s actions violate several instances of international law, he has received little concrete pushback from the international community, in large part due to his threats that he would turn to China or Russia if the Philippines faced any economic sanctions or loss of international aid.

This new stance on the death penalty violates the UN’s International Covenant on Civil and Political Rights, which the Philippines signed and ratified.  Article 6 of the Covenant explicitly condemns the death penalty and goes on to state: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes…”

The Filipino government released a statement immediately after the UN convened to discuss the drug war, claiming that there were no extra-judicial killings going on. “These are deaths arising from legitimate law enforcement operations or deaths that require further investigation following established rules of engagement by the country’s law enforcers.”

Duterte threatened to expel ambassadors from the European Union who he claimed were plotting to force the Philippines out of the UN, though he later walked back his comments after learning the group did not represent the EU in any official capacity.

UN human rights chief Zeid Ra’ad al-Hussein suggested that Duterte be investigated for murder, after the president said he had personally shot and killed three drug users when he was mayor.  In response, Duterte called al-Hussein an “idiot” and threatened to withdraw from the UN, the International Criminal Court, and the Enhanced Defense Cooperation Agreement with the US.

Through the EDCA, the US gained an advantageous military position in southeast Asia.  In return, the Philippines received humanitarian and military assistance.  Duterte’s threat of withdrawal accompanied a claim that he would rather buy arms from Russia and China.

US-Philippines relations have been rocky under Duterte.  President Obama canceled a trip to the Philippines to discuss the human rights situation there after Duterte disrespected him by degrading his daughter with a series of sexual expletives.  President Trump drew widespread criticism from human rights groups after he invited Duterte to the White House, although Duterte declined the invitation.  Trump will travel to the Philippines on November 12, as part of his tour of southeast Asia.

A presidential term in the Philippines lasts 6 years.  At 72, Duterte is already the oldest Philippine president ever.  The Philippine constitution limits presidents to one term only, but there is no way of knowing how many Filipinos will die before his successor takes office in 2022.

 

Rohingya

Rohingya Crisis: What the International Community Should and Can Do

By Michelle Xinchen Li | October 30, 2017

Summary: Hundreds of thousands of Rohingyas are fleeing from a persecution of the Myanmar Army. The international community is struggling to classify this persecution and take action correspondingly.

Hundreds of thousands of Rohingyas, a Muslim-majority ethnic minority group  in Myanmar, are fleeing across the border amid a mass persecution by the Myanmar Army.

As a humanitarian crisis, the persecution has drawn wide criticism. However, from a legal perspective, many questions remain to be addressed: what is the domestic legal basis for the persecution? Does it violate international law? If so, on what grounds should the international community take action?

The persecution started in October 2016 when several Rohingya militants attacked and killed nine police officers. The conflict soon triggered a military crackdown against Rohingya people, most of whom live in Rakhine State, a relatively remote region on the Western coast of Myanmar. The government, on the one hand, claims the persecution to be a legitimate counterinsurgency campaign, which only targets terrorists and insurgents. On the other hand, evidence suggests the large-scale violence has become indiscriminate and vicious, involving forced deportation, extrajudicial killings, gang rapes, arsons, and other atrocities.

 

Domestic Laws and Rohingyas’ citizenship

Rohingya people, mostly Muslim, have lived in the predominantly-Buddhist Myanmar for generations but have largely remained stateless. Historically, Buddhist Rakhine and Muslim Rohingya in Rakhine state, formerly known as Arakan, have always been in conflict. During World War II, Japan invaded Myanmar when it was still under British colonial rule. The pro-Japanese Buddhists and pro-British Muslims fought a fierce proxy fight in 1942, in which tens of thousands of Rohingyas fled from the country to avoid massacre.

Many Rohingyas gradually returned, trying to resettle after Myanmar’s independence in 1948.  Myanmar issued a citizenship law in 1982, stating that only those whose families had lived in the country prior to 1948 and those who belonged to the eight majority ethnic groups could achieve full citizenship. Rohingya was not a recognized ethnic group and most Rohingya people were denied citizenship due to their unverifiable ties to Myanmar. Without a citizenship, Rohingyas have also been met with various restrictions pertaining to public education, government work, freedom of movement, marriage, and even voting.

Rohingya insurgent groups have prevailed under repression and discrimination. Most of them are nationalist, separatist, and Islamist, represented by the Arakan Rohingya Salvation Army, the Rohingya Liberation Party, and the Rohingya Patriotic Front. The Arakan Rohingya Salvation Army, for example, issued the attack against the Myanmar security forces in last October, which led to the government’s counterinsurgency campaign that continues until today.

 

Ethnic Cleansing and/or Crimes Against Humanity?

Major media outlets have referred to the persecution as ethnic cleansing or crimes against humanity. Both types of violence are distinct from conventional warfare in that they target non-combatants and usually enact violence beyond military necessity. The United Nations and the international community at large have recognized both to be unacceptable but there are few concrete international treaties that prohibit them.

Ethnic cleansing is not yet an independent crime under international law. Its current UN definition is based on an ad hoc investigation into the ethnic cleansing which occurred in 1992 in the territory of the former Yugoslavia. A United Nations Commission of Experts mandated to investigate this incident defined ethnic cleansing as “rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area.” Potentially coercive practices include murder, torture, rape, etc. In other words, although perpetrators of ethnic cleansing often resort to violence during their attempt, their ultimate goal is not to exterminate a certain demographic group, but to displace them.

Top UN human rights official Zeid Ra’ad Al Hussein condemned the persecution against Rohingya people to be “a textbook example of ethnic cleansing” in an address to the UN human rights council in Geneva last month. By virtue of the sheer number of Rohingya people who have fled the country in the past year, the Rohingya crisis has met the definition of ethnic cleansing. However, there have been increasing signals that the persecution is more than just ethnic cleansing. The large-scale infanticide, extrajudicial executions, and gang rapes perpetrated by the Myanmar military have clearly exceeded the necessary standard to merely deport the people.

Some media also use the term “crimes against humanity” to describe the current state of affairs in Myanmar. Like ethnic cleansing, crimes against humanity are not codified in a dedicated treaty of international law. Nonetheless, the latter belongs to the realm of international customary law and is sometimes subject to the jurisdiction of the International Criminal Court. According to the Rome Statute of the International Criminal Court, crimes against humanity refer to “widespread or systematic attack directed against any civilian population, with knowledge of the attack” including acts such as murder, extermination, enslavement, deportation, imprisonment, torture, and rape. Crimes against humanity are different from ordinary crimes in that they are often premeditated and well-organized. They also involve large-scale violence, meaning they target a significant number of people and span a wide geographical area.

The UN Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee on the Rights of the Child stated earlier this month that the Myanmar authorities’ violence against Rohingya women and children has mounted to crimes against humanity. In the past year, Rohingya women and children have suffered from mass sexual abuse, indiscriminate executions, and infanticides. They are also exposed to extreme poverty and malnutrition during their forced deportation. Human rights organizations usually attribute more attention to women, children, and the elderly. Nonetheless, an over-emphasis on individual human rights may have overshadowed the fact that the persecution has sorted out victims by their collective identity as an ethnic and religious group.

 

Genocide?

Genocide is a more severe crime than ethnic cleansing and crimes against humanity because it stems from more malignant intentions and involves more atrocities, and is a recognized crime under international law. Genocide is subject to universal jurisdiction: every state is obliged to prohibit genocide in foreign countries and to prosecute perpetrators. The 1948 Geneva Conventions codified genocide as an independent crime, largely in response to the Nazi Holocaust during World War II.

By its definition, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group. Common wisdom often assumes genocide to be a crime intended to exterminate every single member of a group. However, a persecution suffices to be genocide so long as it inflicts irreparable harm on a group.

Historically, genocide is rare because it is rather hard to conclusively identify that the real intention of the persecutors is to physically destroy a group. Regarding the Rohingya crisis, the Myanmar authorities have denied any accusations by insisting the persecution to be part of a legitimate counterinsurgency campaign. The assertion becomes more tenable when Rohingya insurgency groups vow to intensify their retaliation against the government. Nevertheless, how can we determine the retaliation to be a violent rebellion against the government’s rule or merely a self-defense? It is also hard to differentiate genocide from ethnic cleansing and crimes against humanity. After all, how can we determine if violence is merely the tool to drive the Rohingyas out of the country, not the goal itself? How can we determine the army is only targeting potential insurgents, rather than anyone who holds membership in the group? These are hard questions to which no satisfactory answer has been provided.

 

International Response

Neighboring Bangladesh has housed most of the Rohingya refugees who fled across border. The United Nations, United States and transnational organizations such as Organization of Islamic Cooperation have attributed the blame to the Myanmar government. The European Union and the United States have also provided humanitarian aid to the Rohingya refugees. International organizations such as Human Rights Watch (HRW) and Amnesty International continue to call for international donors to offer more humanitarian assistance as well as attention from the UN Security Council. However, no substantial intervention is on the horizon.

 

Reflection

A persecution as such usually invites nothing more than routine condemnation against persecutors and humanitarian aid toward victims. Firstly, foreign states are reluctant to interfere with another state’s sovereignty, even when they are both allowed and obligated to. Secondly, external actors all have their own benefits at stake. A substantial intervention requires troops, military resources and financial support. Their diplomatic interests are also not to be ignored. Last but not least, it is hard to evaluate the extent of atrocities and classify them accurately, especially with regards to how and when they begin. Different types of violence needs different responses, but international law is traditionally vague and depend on ad hoc negotiations to reach a decision. It seems there is no exception even when hundreds of thousands of civilians are suffering.

Author Bio: Xinchen Li is a junior from Shanghai, China. She majors in political science and economics.

Nepal Migrant Labor Ban

Nepal’s Rock and A Gulf State’s Hard Place: The Ban on Women’s Migrant Labor

By Joshua Smith | October 27, 2017

The export of unskilled migrant labor is a pillar of the Nepali economy, but a cross-section of the nation’s most socio-politically marginalized populations compose the majority of this workforce. Nepal has continually prohibited any legal process for women under age thirty to pursue domestic work in Gulf Countries such as Qatar, Saudi Arabia, Kuwait, and the U.A.E. This exhausts most options for the unskilled other than exploitative, unsafe chartering through India’s nearby border. It pits a crisis very common in the homes of those Southern Nepalese: should I risk the danger of an illegal attempt to support my family?

Foreign employment plays a vital role in the economic backbone of Nepal with over fifty percent of households receiving remittances from overseas. These payments funneled back from workers abroad made up thirty-one percent of the Nepali GDP as of 2015. Seventy-five percent of these incomes are seeded in work visas classified for “unskilled labor”. Lacking specialized training and its access, unskilled laborers in the South lean into opportunities like domestic work. Within these already deprecated communities, Nepal’s industry sanctioning creates the heaviest impact.

Their dilemma is compounded by the chaos and controversy within Nepal’s constitutional government. Following the devastating earthquake in 2015, the Nepali government agreed to fast track a new constitution in an effort to alleviate political gridlock and replace the presiding interim constitution. The previous document was intended as a placeholder following the nation’s brutal civil war that abolished Hindu-centric government and established the secular state. The decision to fast track the 2015 constitution and the product itself have faced stark criticism and protest from minority groups in the Terai region of Southern Nepal. This is a region which consists largely of the Madhesi and Tharu ethnic groups, giving voice to issues of caste-based and gendered discrimination that they claim is still prevalent. This unrest has also been emboldened by the controversy of renewed demarcation of political districts by the most recent constitution.

Echoes of the sectarian social castes continue in Terai, despite provisions in the two recent constitutions and the nation’s ratification of the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). The ethnic communities of the region continue to experience reduced literacy and educational development rates as well as health disparities. In an on-site visit, administrators at the Terai Human Rights Defenders (THRD) Alliance coined this phenomenon a “technocratic silo” with deference to the lack of representation these communities hold outside of agriculture and foreign employment. The advocates cited these inequities as a structural obstacle to “skilled” labor positions for the marginalized in Terai.

In the wake of this unrest, the government’s prohibition on domestic migrant work for young women continues. Nepal has also been a signatory to the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) since 1991. A ban on female Nepali labor in the Middle East, instituted in 1998, was intended to ensure safety for female laborers amongst spiking trends in physical and sexual abuse. That ban was partially lifted in 2003, permitting legal migrant visas for professional sectors (e.g. nurses and cashiers). Nepal has seen several iterations of familiar sanctioning.

The most recent ban on foreign labor in the Gulf for women under age thirty was determined as the ideal solution for “widespread abuse and exploitations of domestic workers, mainly females in Qatar, Saudi Arabia, United Arab Emirates and Kuwait.” Nepal’s International Relations and Labor committee instructed the government to follow through with sanctioning just last April.

It must be noted that the current state of illegal migratory systems is extremely unsafe. Unskilled Nepalese who fall under prohibition from the Gulf states are presented with few choices for employment within their own borders, while facing crippling economic hardship from the 2015 earthquake. Unskilled women seeking work are corralled into corrupt, unlawful networks. These employment agencies have been reported responsible for numerous human rights violations such as kafala (illegally retaining passports), inhumane working conditions, and facilitating human trafficking.

Human Rights Organizations such as Human Rights Watch (HRW) have vilified the previous sanctions prescribing explicit, direct action against “discriminatory treatment of domestic workers” as the solution. The reactionary vice on women’s liberty abroad fails to address the outcries from INGOs that over half of the migrant labor from Nepal comes from these populations which do not hold access to skilled labour positions. Those most affected find themselves with few beneficial options for livelihood.

The coming months will indicate whether Nepal will experience the shift to an identity-based federalism that has been demanded since the interim constitution. This may result in an address of the domestic marginalization and foreign employment crises facing Terai’s female migrant population, but a pragmatic solution remains out of sight. It is unlikely that the gridlock will subside soon given the track record for Nepal’s constitutional gains; however, it is important to note that a large number of migrant laborers are returning to vote in the upcoming legislative elections. The elections will take place in the coming November and December. The new year will bring new political players, challenges, and likely demonstrations that may further rock the already turbulent nation.

 

Author Bio: Joshua Smith is a Junior from Johnson City, Tennessee studying Political Economy at Duke University. 

catalan

Catalonia: Civil War or Legal Secession?

Summary: Catalonia is looking at the best opportunity for secession it has ever had but the Spanish government has deemed it unconstitutional.

On October 1, 2017, Catalans stared down armed national police and tear gas to take their first proper steps towards independence from Spain. Meeting large resistance from the federal government in Madrid, Catalonia held a referendum vote to decide whether or not they would remain part of Spain. Despite 90% of the votes cast being in favor of independence, the Spanish Prime Minister went on national TV later in the day to say that “no official referendum had been held” and that any attempt at a referendum was unconstitutional. Are the people of Catalan actually engaging in an act of state-sponsored resistance? If they are not, is this another piece of the plan of the Spanish government to hold onto a part of their country that constitutes over 20% of their national GDP?

To evaluate the legality of this move and the legal ramifications of it, one must first reflect on how the recent talks of independence began. When Spain transitioned from a monarchy to a democracy in 1978, its constitution established seventeen autonomous communities that self-govern. While still a unified state, Spain has decentralized certain national powers to the autonomous communities, the rights of which are outlined in the Statutes of Autonomy. In 2010, a large portion of the 2006 Statute of Autonomy of Catalonia, the statute that defined Catalonia as a ‘nation’ within Spain and provided the Generalitat of Catalonia with a stronger form of self-governance, was ruled unconstitutional by the Spanish High Court of Justice. The language of the High Court’s amendments greatly restricted the power of self-governance that the Spanish and Catalan government agreed upon; one of the most influential changes being that the High Court believed the Statue’s declaration of Catalonia as a ‘nation’ carried no legal value under the Spanish Constitution’s article that states the unity of the Spanish nation is indissoluble. In response, the Catalan population moved from calling for more autonomy to full independence. Over the next six years, Catalonia would hold four referendums to gauge interest in leaving Spain, each time showing an increase in support for the pro-secession side.  

Catalan independence has also created challenges for the European Union. Calls for their intervention in the Spanish government’s attempt to prevent the referendum vote have been made on the basis that their arrest of democratically elected officials, banning of political meetings, and raiding of private printing and mail services is a direct violation of the civil rights and freedoms of assembly, speech, and information outlined in the European Charter of Fundamental Rights. If the European Commission finds Spain guilty of these allegations, then Spain could face sanctions that could cripple their economy should Catalonia also gain its independence. The economy of Catalonia currently comprises 20% of Spain’s GDP but the abolishment of Spanish tax law within the region and full rollout of exclusively Catalan tax law would result in a €16 billion yearly increase for the region since Catalan money would no longer be going to the Spanish government. The European Union currently has no legal literature dictating who becomes responsible for a state’s debt in the case of secession so, considering the Spanish government is not willing to negotiate and the fact that there are no laws dictating the allocation of this debt either, it looks like the remainder of Spain may have to take on the entirety of the debt, something its debt-to-GDP ratio proves the Spanish economy would not survive. EU law requires a unanimous vote among its members to induct Catalonia into the Union itself, so accepting their portion of the debt may be Catalonia’s only way to win favor with Spain and its allies come time for such a vote.

The referendum of October 1st does not constitute actual independence in itself. And an official declaration of independence has to be voted upon by the Catalan government (which said they would do this within 48 hours of receiving a majority “yes” vote on the referendum). In response to the refusal of the Catalan president to back down, Prime Minister Mariano Rajoyhas called for the activation of Article 155 of Spain’s Constitution, an article that allows for the Spanish government to revoke all of Catalonia’s autonomy. Article 155, largely based on a similar Article in the constitution of then West Germany, allows the Spanish government to take control of one of the countries autonomous regions should it “fail to fulfill the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain.” The language of this article, which has never seen use in the forty years since the fall of Francis Franco, is vague at best and unenforceable at worst. The issue with the Spanish government’s potential use of this Article is that it requires them to outline instructions for how the seized region can return to autonomy. But considering the broad language of the Article and the refusal of the Catalan people to comply even in the face of potential civil war, it appears any plan recommended by the national government would fall on deaf ears and only be seen as further attempts to undermine their autonomy. Spain has no precedent for this type of case, especially on a constitutional scale. If the Catalan president continues to refuse to comply, the Spanish government has not been shy in saying that it will implement martial law in the region should it come to that.

Neither side seems to be budging. Should war break out, the situation could pose an interesting dilemma for the United States. The United States would have to choose between honoring its alliance with the Spanish government by coming to their aide in the suppression of Catalonia and supporting Catalonia in an attempt to further their stance as the global upholder of international democracy. This choice would only be made harder if either the United Nations or the European Union finds Spain guilty of human rights violations. The coming months could shape Spanish, Catalan, EU, and international law as the world potentially prepares to see its first new country since the creation of South Sudan in 2011. Should Catalonia prove successful, other regions in Spain and abroad may begin to follow suit.

 

Hunter Snowden is a Trinity junior majoring in Philosophy and Political Science from Dallas, Texas.

MADURO

“Like A War”: The Venezuelan Protests

Summary: Venezuelan President Nicolas Maduro has been accused of silencing all political dissent by jailing journalists and tampering with elections. Venezuelans have responded through widespread protests.

Nicolas Maduro and the United Socialist Party were elected in 2013, and ever since, his government has faced great criticism for oppressive practices.  The opposing party, the Democratic Unity Roundtable (Mesa de la Unidad Democratica), was founded in 2008 as a coalition of several former parties, in the hopes of preventing the control of the Socialists. The MUD initially led the National Assembly and attempted to enter discussions with Maduro, but in March 2017, he ended the assembly, sparking national protests.

While Venezuela technically allows citizens to protest, Maduro specifically banned protests the weekend of the elections. He prohibited all public meetings and demonstrations, gatherings and other similar acts that might “disturb the electoral process.”  Those who violated the ban could have been sentenced to between five and ten years in prison.

Nationwide protests occurred anyway.  In response to the largest protest in Caracas, the Venezuelan National Guard was called in to block the protesters’ routes and spray the crowd with tear gas.  Death tolls have been estimated to be as high as 111, with nearly 2,000 people injured.  Protesters say they treat the conflict, “like a war.”

A large portion of the protests stem from dissatisfaction with living conditions in Venezuela, where people face severe medical and food shortages.  Maduro denies that any such problems exist–his Minister for Foreign Affairs Delcy Rodriguez claimed: “There is no humanitarian crisis in Venezuela.  There is not.” In 2001, under Maduro’s predecessor Hugo Chavez, Venezuela was one of the richest countries in South America.  Now, it is among the poorest.

The protests are also motivated by what is seen as election tampering by Maduro. On July 30, 2017, elections were held to determine the members of the Venezuela Constituent Assembly. The Assembly would be responsible for rewriting the Venezuelan constitution–a move that some international humanitarian groups consider to be Maduro’s attempt to consolidate power. Some say that voter turnout numbers released by the government were inflated by as many as one million votes.

International response to Maduro’s actions has been timid at best, primarily due to a general lack of options for legal recourse as part of many international agreements.

The United Nations has discussed the crisis in Venezuela, criticizing Maduro for use of excessive force as well as arbitrarily detaining thousands of citizens.  Venezuela has violated several articles of the Universal Declaration of Human Rights, primarily those concerning freedom of expression and freedom of assembly.  However, the UN has not determined a course of action beyond calling for an investigation.

The International Criminal Court has also launched their own investigation after a group of Colombian senators filed a complaint against Venezuela.  The investigation is ongoing.

The European Union declared they would not recognize the Constituent Assembly, but refused to institute sanctions for fear that they would only contribute to the nation’s food shortage.  

The Union of South American Nations (UNASUR) has been the most outwardly disapproving: the majority of member nations released a joint statement condemning the government’s response to the protests, although Ecuador and Bolivia–which both have Socialist governments–declined to release a statement.

Venezuela is a member of the Organization of American States. The OAS has met several times to discuss the situation in Venezuela—however, Article 19 of the OAS charter states: “No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other state.  The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements.”  As such, the OAS is relatively limited when it comes to their response.

In spite of this, President Trump has levied sanctions against several top-level Venezuelan officials, as well as threatened to employ a “military option,” though he has not gone into detail. Maduro’s defense minister called the threat “a crazy act.”

The OAS charter also states: “It is imperative that citizens of every country be able to rely on electoral processes that are free, peaceful, and transparent.”  In 2017, OAS has released 21 press statements condemning the violence and government response in Venezuela.  In response, Venezuela has started the withdrawal process from OAS, which is projected to take two years.

The regional elections in October 2017 provided further disappointment for the protestors–in an upset victory, the Socialist party won 17 out of 23 available governorships. The MUD had been predicted to make sizeable gains, but they claim that Maduro tampered with the elections again, this time by changing the location of more than 200 voting sites in the days leading up to the elections.

For now, the MUD looks forward to the presidential election in December 2018–though some fear that the Constituent Assembly will call it off and place Maduro in a position of indefinite power.

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Apple’s Double Irish with a Dutch Sandwich

What do companies like Google and Apple have in common? They both love a “Double Irish with a Dutch Sandwich.” As appetizing as that may sound, it is actually a form of legally-permitted tax avoidance. Through a combination of legal loopholes and financial border-hopping, Google and Apple have lowered their collective tax contribution by just under $20 billion in 2015 alone.

Here’s how it works: Large companies like Google and Apple minimize their tax burdens by strategically funneling money into offshore tax havens through “shell companies” – corporate sub-entities used strictly as vehicles for transnational capital shifts. Take Apple, for example. “Apple Ireland,” a shell company owned by the U.S. tech giant, sells iPhones to another shell company, “Apple Netherlands,” which, in turn, sells the product to the customer. The Dutch franchise then collects revenue from the sale but pays as much as possible back to the Irish shell company through inflated licensing fees. This process allows Apple to declare negligible revenue to the Netherlands and be taxed on that remaining amount at Ireland’s low rate of 25%. If the revenue had been reported in the U.S., the rate would be 39%.

A similar process takes place in New Zealand. Last fiscal year, Apple sold over $4.2 billion NZD worth of products in New Zealand but paid no local taxes. The New Zealand government calculated that, if Apple were to claim the same profit margin within New Zealand that it claims globally, they should owe close to $357 million NZD. Google has found itself in similar situations, transferring money through branches in Bermuda where they only pay 7% in taxes.

Unlike tax evasion, tax avoidance is a legal operating strategy. Tax evasion takes place when companies refusing to pay or falsifying reports to hide taxable revenue and assets. In contrast, “tax avoidance” simply means using every available method approved by the state to keep tax rates at an absolute minimum. Companies that engage in tax avoidance have been closely monitored and severely criticized, but what they are doing is technically legal within the countries they operate.

All of this came to a head recently when the European Commission ruled that Apple owed Ireland over €13 billion ($14.1 million) due to the illegality of their transfer pricing and illegal state aid received from Ireland. Under the Treaty on the Functioning of the European Union, it is illegal for countries to provide financial aid to a specific company if they do not also make it available to every company. Prior to 2015, Apple’s Irish branches were taxed based on two similar tax rulings in 1991 and 2007. The Commissioner of the EC, Jean-Claude Juncker, stated that Apple’s paying of less than 1% in taxes to the Irish government due to these rulings (standard Irish corporate tax is 12%) was proof “that Ireland granted illegal tax benefits to Apple, which enabled it to pay substantially less tax than other businesses over many years.” Interestingly, the Irish government has refused to accept these back taxes and has filed an appeal against the decision. The Irish government sees taking the back tax as rolling over and admitting that they – and, by extension, the companies that invest in their country – have done wrong. Recently, Luxembourg’s government has expressed their approval of Ireland’s refusal and plans to support Ireland come time of the appeal. Since their announcement, they have called for the Netherlands and the France to join them, hoping to achieve systemic change within the E.U., but have had little success in recruiting either of these countries. The 13 billion euros owed by Apple, if paid, would be enough to fund Ireland’s entire health care budget or to pay off six percent of the country’s debt. In spite of this, Ireland remains hesitant to demand back taxes from Apple because of the substantial  revenue and jobs it provides for the country.

Apple’s legal team argues that, even if Ireland did offer unfair advantage to them as a company, Apple was operating completely under Irish domestic law. If anyone should be fined, Apple argues, it should be Ireland, since they broke the European Commission’s rule by structuring their corporate tax in a way that allowed Apple to avoid taxes by relocating money and transfer pricing within the law.

While they they refuse to accept back taxes, Ireland has taken steps towards closing the “Double Irish” loophole by creating tax categories known as “knowledge boxes.” Knowledge boxes allow for the collection of tax income from intellectual property in addition to other, tangible sources of profit. This change will not drive companies like Apple out of Ireland any time soon, but it displays an increasing trend towards a more uniform international tax structure.

In the United Kingdom, tax lawyers and politicians have begun to call for more transparency in corporates taxes as well. By allowing the government to see how they allocate funds and what composes the true profit of a company, lawmakers believe they can prevent the U.K. from becoming a tax haven on Ireland’s level.

 

Hunter Snowden is a Trinity sophomore majoring in Philosophy and Political Science from Dallas, Texas.

 

An Egyptian youth showing a victory sign at Tahrir Square. -- Hundreds of Egyptians demonstrate against the expansion of the Emergency Law at Al Tahrir Square. The law allows censorship, government imprisonment and more during times of an emergency. Egypt.16th September 2011
Egyptians protest after Emergency Law is expanded - Cairo

Is Egypt Violating Its Own Freedom of the Press Laws?

Egypt has imprisoned more than 60 journalists, several of whom have not yet been brought to trial. Do these imprisonments violate Egyptian or international law?

Egyptian President Abdel Fattah El-Sisi has been in office since 2014 when a military coup overthrew then-President Mohamed Morsi, member of the Muslim Brotherhood party. During his time as president, Morsi oversaw the ratification of a new Egyptian constitution, which sparked widespread controversy and often-violent protests. When El-Sisi assumed office, he sought to amend the constitution to placate demonstrators. El-Sisi was not intimately involved in the amendment process; instead he delegated the constitutional reforms to interim President Adly Mansour and a committee of ten legal experts. Although the constitutional referendum passed with an astonishing 98% voting yes, turnout was notably low.

Reports of voter suppression and intimidation tactics employed by the Egyptian government began to circulate shortly before the referendum, drawing attention from international organizations such as the EU. According to some reports, activists urging Egyptians to vote ‘No’ to the constitution were arrested and charged for the “possession of anti-constitution posters;” other activists were detained for “inciting protests.”

In the years following the constitutional reform, multiple international organizations have expressed disapproval over El-Sisi’s interpretation of the 2014 constitution, particularly with respect to the exceptions and limitations placed on the freedom of the press.

Organizations such as the U.N. note that Egypt is a signatory to several international treaties which guarantee the freedom of the press. In particular, Egypt is a party to Article 20 of the International Covenant on Civil and Political Rights; this treaty stipulates that nations may only limit the free press in cases of propaganda and ‘hate speech’ designed to incite racial, national, or religious violence and discrimination. Additionally, Egypt is also a signatory of the African Charter on Human and Peoples’ Rights, but it did not fully adopt Article 9 of the Charter, which deals specifically with the freedom of the press and the right of individuals to receive information. In its ratification statement, Egypt proclaimed that Article 9 “should be [confined] to such information as could be obtained within the limits of the Egyptian laws and regulations.” Egypt also refused to fully ratify Articles 8 and 18, but here the reservations specifically mentioned the conflict with Islamic laws; the reservation from Article 9 did not. Every nation in Africa except Sudan has ratified the charter, but many do not recognize the authority of the African Court on Human and Peoples’ Rights, the official body meant to oversee the enactment of the charter. Egypt has not ratified the court’s protocol, so it seems unlikely that the court would have any power over Egypt.

Notably, both of these treaties were signed prior to the 2011 Arab Spring and the ensuing political upheaval. During Morsi’s term, a more pressing concern than the freedom of press was the right to peaceful protests, as political demonstrations often turned violent.

The now-void 2012 constitution guaranteed freedom of the press, except in cases of war or public mobilization. While it allowed Egyptian individuals to form newspapers, it also clearly stated that all other forms of media fall under state control. The legality of these provisions was hotly contested during the widelypublicized 2013 Tahrir Square protests.

Morsi’s interpretation of his constitution allowed him to prosecute any individual he felt was a threat to the security of the state. But this interpretation may not be accurate. Several articles of the 2014 constitution describe various rights of Egyptians, including freedom of the press. In particular, Article 71 states it “is prohibited to censor, confiscate, suspend or shut down Egyptian newspapers and media outlets” while also acknowledging the existence of punishments for “impugning the honor of individuals,” a crime left to the interpretation of courts.  Article 71 also allows for exceptions of limited censorship during a time of war, which El-Sisi is using as justification during his War on Terror.

Technically, Egypt has not facially violated its own constitution or any ratified international treaties. Egyptian courts have only charged journalists with “harming national unity” or “provoking sedition,” which are legitimate charges under that country’s legal code. Egypt defends these actions by arguing that such charges are allowed according to Article 20 of the ICCPR.  Much of the controversy surrounding the arrests stems from varying interpretations of the law. The constitution’s ambiguous phrasing allows for a great deal of flexibility for judges, and makes it much more difficult for any international organization to charge Egypt for violating international treaties.

For now, the constitution is likely to remain unchanged; protests have died down in recent months, and El-Sisi faces little opposition. The next Egyptian presidential election will take place in 2018. Although no one has officially announced their candidacy, El-Sisi has expressed a willingness to run for a second term. If one of his more liberal opponents were to compete and win, it is likely that we would see yet another set of amendments to the Egyptian constitution, which given the heightened political climate, could increase tensions in an already uneasy nation.

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Gender Equity in India: The “Religion Gap” in Divorce Law

Indian family law is characterized by the granting of different rights to different religious groups. Although changes have been made to lessen the disparity in gender representation within the law for women, these changes have been primarily directed at Muslim rather than Hindu women. Group-specific family law disproportionately affords Hindu women with fewer rights and limits the policy progress that can be made.

Laws concerning Muslim alimonies and divorces have been amended to allow women more rights and cultural accommodations. In 1986, the Muslim Women Protection of Rights on Divorce Act secured the ability of divorced Muslim women to collect money from former husbands. The Act invalidated the Supreme Court ruling in Ahmed Khan v Shah Bano Begum, which held that only Muslim women who have not remarried can claim financial compensation. Under the Act, former husbands are required to pay divorced women enough to financially maintain her current lifestyle during the iddat period, a set period of time in which a Muslim woman is prohibited from marrying another man after the death of or divorce from a previous husband. The purpose of the iddat is to ensure that a child born after the end of a marriage would know who their husband is. Due to the burden placed upon a woman to birth a child, the husband is also expected to pay maintenance to the child for two years after the child’s birth. Additionally, the woman in the marriage is entitled to receive the mahr, a payment made by the groom to the bride’s father. All of the land and properties provided to the wife are to be returned to her following a divorce. If the husband does not follow these stipulations, the wife is entitled to appeal to a magistrate to compel the husband to provide her with financial maintenance, her entitled mahr, and former properties. If the husband fails to obey the order, the magistrate may then require the payment of a fine as prescribed by a Criminal Procedure Code or face imprisonment for one year.

Compared to the protections for Muslim women, Indian family law provides far fewer legal and financial protections for Hindu women. While Muslim women have historically been able to hold shares in ancestral property, Hindu women were not afforded this right until 2006. Similarly, Hindu marriages cannot be dissolved within their first years. Even after this restricted period, the legally acceptable grounds for Hindu divorces are severely limited; married couple may divorce if the marriage could not be consummated, one or more partners suffer from a mental illness, the woman is impregnated by another man, one partner is deserted for continuous period of two or more years, or one partner converts to another religion. Additionally, a woman may petition for divorce if her husband engages in polygamy or has committed rape, cidomy, or bestiality. While it may appear from this provision that married Hindu women are afforded equal protection, this is not the case. Section 13-B(1) of the Hindu Marriage Act allows for husbands changed with divorceable misconduct to demand a mandatory “cooling off period.” During this time, couples are encouraged to reevaluate their relationship, ensuring that their marriage has reached an irreparable state. This “cooling off period,” while set at a minimum of six months, can reach up to a mandated eighteen months. In 2010, the Marriage Laws Amendment Bill sought to eliminate the “cooling off period,” replacing the words “not earlier than six months” with “upon receipt of petition.”

The Bill also provided a safeguard to the wife’s financial welfare if the dissolution of the marriage would result in immense financial hardship. Once introduced, the Bill successfully passed the Upper House of the Indian Parliament but did not pass the Lower House. In 2012, the Supreme Court of India ruled that if mutually consented to, a marriage could be dissolved before the end of the six months cooling off period previously mandated by the Hindu Marriage Act of 1955. Justice Altamas Kabir read the Supreme Court decision and stated that, “there may be occasions when in order to do complete justice to the parties it becomes necessary for this court to invoke its powers under Article 142 in an irreconcilable situation (between the couple). When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months.” However, it is unclear what happens when the occasion is not deemed to be “irreconcilable” and what a state of marriage must be in to necessitate the observance of the cooling off period.

While it may appear that not granting a divorce may limit a woman’s rights, a divorce, more often than not, hinders the woman’s ability to be financially stable.  In a study named, “ “The Economic Rights & Entitlements of Separated and Divorced Women India,” researchers, lawyers and women’s rights activists for the Economic Research Foundation of India surveyed 405 Indian women who had been separated, divorced, or deserted in their marriages. A majority of the women surveyed noted that they would not have opted for a divorce even if they lived in a violent household due to financial and social insecurities. The study found that, by not granting a divorce, these women may be given their only chance to negotiate a financial settlement. 60% of the respondents who had been separated noted that they would not be able to be hired if they were divorced. 85% of the separated women also indicated that single-handedly raising their children would be too taxing to maintain under their reduced capability to earn money or be socially accepted.

While it appears that the Marriage Laws Amendment Bill and the 2012 Supreme Court decision increased the breadth of circumstances under which divorce is acceptable, in reality, these recent policy decisions continue to narrow the ability for Hindu women to live in a financially stable environment. The freedom by which Muslim women live their lives after a divorce appears to be a distant dream for Hindu women. Ideally, laws should ensure that women are guaranteed a living wage for themselves and their children after divorce. In India, a facade of political progress often obscures the social and civil problems that plague Hindu women.

 

Rachel Sereix is a Sophomore from Hollywood, Florida studying Political Science and Markets & Management.

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A Pen Without a Sword: The International Criminal Court

International criminal law is defined by lofty goals. The branch of law seeks to establish direct criminal responsibility for individuals across state lines by creating transnational mechanisms for adjudication and enforcement of international human rights treaties. The main body for this adjudicative process is the International Criminal Court, (ICC) established by the 1998 Rome Statute. Although the ICC is supposedly the court of last resort for individual criminal activities, it is plagued by problems.

The first problem concerns a lack of stakeholders. Several major countries currently do not participate in the ICC. The United States and Russia, while signatories to the Rome Statute, have yet to ratify it. China and India are not signatories at all. Additionally, multiple African nations such as Burundi, South Africa, and Gambia have recently exited from the ICC. Several others, including Uganda and Kenya, seem likely to follow suit. This mass exodus from the stems largely from accusations that the ICC is biased against African nations. In an official statement, the Gambian government noted that “there are many Western countries that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC, and not a single Western war criminal has been indicted.” Indeed, of the 39 individuals who have been indicted by the ICC, every one has been African. Seeking to explain this disparity, Harvard Law professor Alex Whiting argues that the disproportionately high number of cases against African individuals results from the fact that crimes and mass injustice are prevalent in Africa. Regardless of cause of the geographic disparity, the accusations of ICC bias present a serious problem for the organization’s legitimacy in the international community.

Equally problematic is the ICC’s lack of enforcement capacity. Although its central office in the Hague has a permanent staff of prosecutors, the ICC relies on individual governments to provide support for its international operations. Without the cooperation of national governments, the ICC is powerless to extradite suspects, enforce international statutes, or provide evidence of criminal behavior. In 2014, the ICC dropped its prosecution of Kenyan president Uhuru Kenyatta, who was accused of crimes against humanity, due to the unwillingness of the Kenyan government to provide evidence in relation to the alleged crimes. Furthermore, the ICC can only initiate investigations against nationals of countries that are party to the Rome Statute, thereby severely limiting its capacity to maintain global justice when its reach is hindered by political boundaries.

The intimate connection between the ICC and the UN Security Council presents a third problem. Article 16 of the Rome Statute gives the UNSC the power to prevent ICC specific investigations and prosecutions. This article effectively gives the five permanent members of the UNSC unlimited veto power on the operations of the ICC. To make matters worse, the UNSC also holds the power of investigative referral, through which UNSC members can open individual cases for ICC investigation. Louise Arbour, the former chief prosecutor for the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, acknowledged in a speech that “international criminal justice cannot be sheltered from political considerations when they are administered by the quintessential political body: the Security Council. I have long advocated a separation of the justice and political agendas, and would prefer to see an ICC that had no connection to the Security Council. But this is neither the case nor the trend.”

The fourth issue concerning the effectiveness of the ICC is the principle of complementarity, set out in Article 17 of the Rome Statute. This provision states that the ICC cannot second-guess decisions made by national courts or prosecute any individual whose case has already been litigated (or is pending litigation) under appropriate domestic authorities. Because the legitimacy of legal investigations in certain national jurisdictions are doubtful, Article 17 often prevents the ICC from pursuing cases of political corruption and war crimes, especially when the suspect holds significant political power in their home nation.  When former First Lady of the Ivory Coast Simone Gbagbo was charged with war crimes, the national government decided to try her in domestic court rather than transfer her to the ICC. Although her trial and subsequent acquittal were largely viewed as a farce, there was nothing the ICC could do.

In addition to the four problems outlined above, one more can be added: a woeful lack of systematic research on the effectiveness of the ICC as a deterrent to crime. This lack of evidence has spurred a fundamental debate as to the necessity of such an institution. As originally designed, the ICC was supposed to be an effective, fair, and final court for individual criminal responsibility. It has failed to fulfill this vision. Inevitably, there will be tension between the well-established principle of national sovereignty and the moral obligation to intervene in cases of unacceptable violations. Regardless of where that line is drawn, however, the complex network of international politics suggests that any attempt to establish a single, sovereign judicial authority may be doomed from the start.

 

William Tong is a sophomore majoring in Political Science and Philosophy from Macau, China.