Thursday, December 23, 2010

Ivory Coast : UNOCI mandat prolonged until 30 June 2011

At 20 December 2010 the United Nations Security Council (SC/10132) extended the mission in Cote d’Ivoire until 30 June 2011, strongly condemned attempts to usurp the will of the people and urged respect for the election outcome : Alassane Ouattara, a former prime minister, banker and leader of the opposition, has been recognized as the winner of November’s election by the United Nations, the African Union, the United States and the European Union. The incumbent president, Laurent Gbagbo has resisted repeated calls for him to cede the office.

According to UN Secretary-General Ban Ki-moon (SG/SM/13325) the UN Operation in Côte d'Ivoire (UNOCI) will continue to fulfil its mandate and to monitor and document any human rights violations, incitement to hatred and violence, or attacks on UN peacekeepers.

In Geneva, the UN High Commissioner for Human Rights, Navi Pillay, expressed deep concern over the growing evidence of massive violations of human rights taking place in Côte d'Ivoire since 16 December, and reiterated her determination to ensure that perpetrators are held accountable for their actions. On December 23, the United Nations deputy high commissioner for human rights, Kyung-Wha Kang, said that UN human rights monitors had reported 173 killings, 90 cases of torture or abusive treatment, 24 forced disappearances, and hundreds of arrests between December 16 and December 21. At least 20 people were killed and scores seriously injured when Gbagbo's security forces opened fire on demonstrators during a December 16 march by Ouattara supporters.

President Gbagbo ordered United Nations and French peacekeepers to leave the country immediately. The UN Human Rights Council in Geneva unanimously adopted a resolution on December 23 condemning abductions, executions, and enforced disappearances in Côte d'Ivoire, and pledged to take further action if the situation deteriorates.

Whether the (new) government is able to come up to the responsibility to protect the civilian population against human rights violations and international crimes remains to be seen. Even now the 10,000 United Nations peacekeepers are trying to protect the election outcome and defend the electionwinner Ouattara in his hotel in Abidjan there's still a serious risk of an escalation, turning the country into civil war. Ivorian leaders who order and encourage grave human rights abuses could be held accountable by the International Criminal Court (ICC). The ICC statute prohibits attacks against international peacekeeping missions as long as they are operating as peacekeepers.

Fortunately there are other scenario's:

Relevant external links

Côte d’Ivoire: Pro-Gbagbo Forces Abducting Opponents (Human Rights Watch report, 23 December 2010)

Official website UNOCI -- United Nations Operation in Côte d'Ivoire

Relevant press articles

UN News Centre : UN chief underlines warning against attacking peacekeepers in Côte d'Ivoire

Ivory Coast President Orders U.N. to Leave (New York Times, 18 December 2010)



France, U.N. reject Gbagbo demand to quit Ivory Coast (Reuters, 19 December 2010)


BBC News Africa : UN crisis meeting as violence escalates in Ivory Coast (23 December 2010)

Voice of America (VoA) U.N. Human Rights Council Condemns Violence in Ivory Coast (23 December 2010)

Thursday, December 16, 2010

Facebook and the individual in the global village

The end of the year is approaching, 2010 is almost over. This is a good time for some reflection. It has just been announced by TIME Magazine that Mark Zuckerberg, the founder of Facebook, is the ‘person of the year.’ Facebook does not need an introduction here; everybody knows what it is and offers. In 2004, when Facebook was tiny and Zuckerberg a nineteen year old student, the online service was described, by the founder himself, as ‘an online directory that connects people through social networks.’ This description can easily be used to describe the global, highly successful, Facebook of 2010.

Not everybody is equally delighted by the success of Facebook. In her 2009 Christmas address, the Queen of the Netherlands warned about the increasing individualism in Dutch society. According to the Queen, there is a real danger that the Dutch are slowly alienating themselves from the local community, from the warm bonds of neighborliness, and instead turn into isolated, cynical, and cold-hearted individuals. And the social networks on the internet, Facebook included, only accelerate this process, said the Queen, because they replace ‘real’ connections with ‘unreal’, or virtual connections.

The Queen’s speech has been criticized, especially for not taking into account the negative aspects of neighborliness. Indeed, one of the proudest achievements of the Netherlands is the level of tolerance that has been achieved. There is no ‘neighborhood watch’ anymore, to comment on other people’s lifestyles. This personal freedom is something to cherish, and to defend, because it is extremely fragile. We see how fragile it is at the moment, when various incidents have led people to argue that some of our privacy, and some of our tolerance towards irregular behavior of others, should be sacrificed.

This restriction of people's privacy for the sake of keeping the community together and safe is a global trend. One of the most topical books of recent times is the book by Simon Chesterman, One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty. He predicts that governments will collect more and more information about their own citizens, and that these citizens will increasingly accept that their government will collect this highly sensitive information.

And perhaps this is not such a bad thing. Perhaps a restriction of privacy will bring back the isolated individuals into the warm bonds of neighborliness. In literature, it has already been pointed out that the freedom that comes with increased privacy and tolerance does not always lead to happiness. In other words, to be free is not only to be selfish, it can also be a lonely state of existence. Perhaps a 'neighborhood watch' could be helpful, if it does not limit itself to commenting on other people’s lifestyles, but tries to integrate everyone into the life of the local community.

But is Facebook really a danger to such a process? In a way, Facebook itself is doing the same thing, by collecting data of its users, and using the collected data to bring people with similar interests together. Those that cherish their privacy will not be happy about this, and Facebook does offer an opportunity for them to block the sharing of their personal data. However, it is indicative that not all of the Facebook-generation see this collection and use of personal data as an unwarranted invasion of their privacy.

Perhaps then, the Queen has mischaracterized Facebook. Perhaps Facebook is the foundation of a true ‘global village,' where people do share interests, hobbies, etc. Of course, in the end Facebook cannot replace the warmth of a local community. But must Facebook be considered a threat to local solidarity and neighborliness, as the Dutch Queen has suggested? Merry Christmas and a happy 2011!!

Peace Palace Library Keywords

Wednesday, December 1, 2010

FABEC


Central Europe’s airspace, totaling 1,713,442 km2, has one of the highest traffic densities in the world. Currently this area handles about 6 million flights a year, both civil and military, which equates to 55% of all European air traffic. By 2018 the number of flights for this area is forecasted to go up to about 8 million flights a year. During a flight, air traffic has to deal with numerous national air traffic control systems and some 410 military no-go air space areas. Europe as a whole has over 650 air traffic sectors which are controlled from 50 en route units or air traffic control centres. In practice this means that air traffic has to zig-zag its way to its destination, which as a consequence extends flight distance and duration and raises fuel consumption, costing airlines about €1 billion a year and burning 12% more CO2.

Although having much older roots, the European Commission took the initiative in 2004 to restructure the European airspace by launching the Single European Sky (SES) programme. The backbone of the programme consists of dividing up the European airspace in functional airspace blocks (FABs) extending over several countries by integrating national air traffic control systems and unifying sets of air traffic control rules. Because air traffic flows will no longer be constrained by national borders greater efficiency is attained in the use of European airspace with many beneficial effects in other policy areas. The aim of the European Commission is to have all FABs operational by 2012. But in all probability this aim will not be met because of national security risk concerns and resistance of air traffic controllers’ unions.

After a feasibility study on a Central European FAB (FABEC) carried out in 2008 in which it showed that improved air traffic management in the area could handle a 50 per cent increase in air traffic volume by 2018 at the same high level of safety and considerable CO2 emission reductions, with a potential benefit for airspace users of € 7,000 million by 2025, several Central European countries have taken matters in their own hands. In the same year the six States of Belgium, Germany, France, Luxembourg, Switzerland and the Netherlands (FABEC States) signed a Declaration of Intent with Annex to commit themselves to build a functional airspace block. A treaty containing the main institutional framework for the construction and implementation of FABEC was drawn up and scheduled to be in force by 2012. Owing to its size and central position in Europe, the FABEC will form a cornerstone of the SES programme.

On 2 December 2010, the Treaty relating to the Establishment of the Functional Airspace Block Europe Central setting up a common airspace at the heart of Europe and to organize air traffic management irrespective of national borders will be signed during a ceremony with a joint press conference in Bruxelles. Once in force and operational the Treaty will be of benefit to airlines, travellers and last but not the least, the environment.

Notes:

European Commission, Mobility & Transport:
FABEC:

Wednesday, November 17, 2010

Victor Bout, arms dealer, extradited to USA

Victor Bout, an interpreter and a former Russian military airforce officer suspected of arms trafficking, has been extradited to the United States of America by Thailand. Bout, also called the 'merchant of death', is alleged of supplying illegal weapons to various groups and regimes, such as the Taliban, the Sierra leonean Revolutionary United Front, Charles Taylor and al-Qaida. The UN identified Bout in document S/2000/1225 about the monitoring mechanism on Angola sanctions as a "major sanctions buster" [1]. Bout had evaded UN and USA sanctions which would undermine and restrict his business but he claims that he has never sold any weapons and that he runs a legitimate air transport business [2].

Little is known about the person Victor A. Bout. He was born in Dushanbe, capital of Tajikistan (1967). He has five passports. and as a graduate from the Soviet Union's military Institute of Foreign Languages, he fluently speaks several languages. His career as an arms trafficker alledgedly began with the disintegration of the Soviet Union. Due to the lack of security the large quantity of abandoned weapons and aircraft could easily be deployed as commodities in the black market [3]. The former military officer owns a fleet of ancient Antonov aircrafts. These are said to have been deployed to transport and sell weapons to clients of several countries that were in a state of civil war [4].

In 2008 Bout was set up and caught in Bangkok, Thailand when he was offered to sell weapons to agents from the US Drugs Enforcement Administration who pretended to be Colombian Farc rebels [3]. The Russian government claims that Bout is innocent but the United States of America (USA) have asked for an extradition to put Bout on trial for the crime of terrorism, money laundering, electronic fraud and several other charges [4].

In March 2008 the USA filed a complaint against Bout. In February 2010 an indictment followed. Thailand rejected the request for extradition of the alledged arms trafficker in August 2009. In August 2009 there was an appeal against the decision to reject extradition in Thailand. In August 2010 the appeals Court of Thailand grants the USA extradition request [5].

The Russian prime minister claims that the extradition to the USA is "illegal" and that this action undermines the USA attempts to "reset" relations between the two countries [6].

Victor A. Bout denied that he sold weapons to al-Qaida and the Taliban on US television in 2009. However, he did confess that he traded weapons to the Afghans in the 90's of the 20th century [7]. The maximum sentence Bout will face when he gets convicted by the US court is life imprisonment [8].


Peace Palace Library Keywords
Links

Footnotes

[1] As quoted from Viktor Bout: five passports, half a dozen languages and alleged friend to all sides, The Guardian. See also UN Doc. S/2000/1225 - Final Report of the Monitoring Mechanism on Angola Sanctions, Chapter IX.
[2] As quoted from
Thailand extradites alleged arms dealer Viktor Bout to US, The Guardian.
[3] See
Viktor Bout: five passports, half a dozen languages and alleged friend to all sides, The Guardian.
[4] See
Background: the life of Viktor Bout, The Guardian.
[5] As quoted from
US v. Viktor Bout , The Hague Justice Portal.
[6] See Suspected Russian arms dealer Viktor Bout to be extradited to US, The Guardian.
[7] See Background: the life of Viktor Bout, The Guardian.

Tuesday, November 16, 2010

The Nobel Peace Prize 2010: Liu Xiaobo


Foto scanpize reuters handout

The Norwegian Nobel Committee has decided to award the Nobel Peace Prize for 2010 to Liu Xiaobo for his long and non-violent struggle for fundamental human rights in China. The Norwegian Nobel Committee has long held the view that human rights and peace are closely linked. Human rights are essential for what Alfred Nobel referred to as “fraternity between nations” in his will.

In its announcement, the Nobel Committee pointed out that, “For over two decades, Liu Xiaobo has been a strong spokesman for the application of fundamental human rights also in China.”

The Norwegian Prime Minister Jens Stoltenberg commented, “The Nobel Committee’s decision directs a spotlight on the human rights situation in China, and underscores the links between development, democracy and universal human rights.”

Liu Xiaobo took part in the Tiananmen protests in 1989 and was a key leader; he was a leading author behind Charter 08, the manifesto of such rights in China which was published on the 60th anniversary of the United Nations' Universal Declaration of Human Rights, the 10th of December 2008. The following year, Liu was sentenced to eleven years in prison and two years' deprivation of political rights for "inciting subversion of state power". Liu has consistently maintained that the sentence violates both China's own constitution and fundamental human rights.

The campaign to establish universal human rights also in China is being waged by many Chinese, both in China itself and abroad. Through the severe punishment meted out to him, Liu has become the foremost symbol of this wide-ranging struggle for human rights in China.

According to BBC News, several countries including the US, France and Germany, called for Liu Xiaobo immediate release:
  • US President Barack Obama said Mr Liu had "has sacrificed his freedom for his beliefs" and called for his speedy release;
  • German government spokesman Steffen Seibert said China should free him so he could attend the ceremony;
  • France's Foreign Minister Bernard Kouchner also welcomed the award and also called on China to release Mr Liu. UN human rights commissioner Navi Pillay said the prize recognised a "very prominent human rights defender".
  • The London-based rights group Amnesty International said Mr Liu was a "worthy winner".
Foreign ministry spokesman Ma Zhaoxu said: "Liu Xiaobo is a criminal who violated Chinese law. It is a complete violation of the principles of the prize and an insult to the peace prize itself for the Nobel committee to award the prize to such a person.

China said the award could damage ties with Norway, and summoned the country's ambassador in Beijing in protest. According to a Norwegian spokeswoman the Chinese foreign ministry "wanted to officially share their... disagreement and their protest,". She added "We emphasised that this is an independent committee and the need to continue good bilateral relations".

According to AFP news agency Mr Liu's wife, Liu Xia, said she was excited by the award: "I want to thank everyone for supporting Liu Xiaobo. I strongly ask that the Chinese government release Liu."
According to RNW Liu Xia, was placed under house arrest at the couple's Beijing apartment when the award was announced.

The award ceremony for the Nobel Peace Prize will be held in Oslo on 10 December. According to a statement of the Hong Kong-based Information Centre for Human Rights and Democracy, the brothers of Liu Xiaobo (Liu Xiaoguang and Liu Xiaoxuan) are willing to accept the prize on Liu Xiaobo behalf in Norway if his wife Liu Xia is unable to attend because of house arrest. The prize is worth 10 million Swedish crowns ($1.5m; £944,000).

Publications in the Peace Palace catalogue:
On China and human rights
On the Nobel Peace Prize

Tuesday, November 9, 2010

The Influence of NGOs on International Law

From a traditional point of view, International Public Law has been understood as a set of rules produced by states in order to regulate relations between them. Since the end of the Cold War, the role of NGOs in international law is growing in importance and their activities are reaching the remotest parts of the world.

In this blog, I will briefly discuss how NGOs have transformed international law as well as how they continue to contribute to the development of international law.

NGOs can best be described as ‘groups of persons or of societies, freely created by private initiative, that pursue an interest in matters that occur or transcend national borders and are not profit seeking.[1] Since international NGO law does not exist, article 71 of the UN Charter has served as a legal basis for NGO activities. Article 71 of the UN Charter determines that NGOs can be granted consultative status by the UN Economic and Social Council (ECOSOC). These consultative norms underlying article 71 have influenced institutional developments in many other International Organizations as well. For instance, The Organization of American States (OAS) adopted The Guidelines for the participation of Civil Society Organizations in OAS Activities in 1999. In 2001, the Constitutive Act of the African Union (AU) also called for the establishment of an advisory Economic, Social and Cultural Council composed of social and professional groups of the member states. [2] Over the years, such provisions made by International Organizations have caused an enormous rise of NGO participation in the international decision- making process. The practice of consulting NGO quickly became widespread and continues to expand. Even though article 71 of the UN Charter granted NGO consultative status in UN policymaking, the UN Security Council remained off- limits until 1997 when NGOs began to hold briefings with council members. In 2004, the UN Security Council engaged in direct consultations with NGOs regarding the role of civil society in post-conflict peacebuilding.[3] International Organizations like the World Bank and the International Monetary Fund (IMF) both provide limited opportunities for NGOs to participate. The WTO, on the other hand, continues to resist to formally adopting a NGO consultation process.
When it comes to exerting influence in the international law-making process, NGO typically initiate action by first encouraging states to codify international norms. Very often, this results in what legal scholars consider soft law which mainly consists of declarations and resolutions devoid of any legal force. [4] Since soft law is mostly declarative, not legally binding and therefore flexible, it enables NGO to easily interfere and gain influence. States are more willing to comply with international legal norms when the legal scope of their responsibility is small.[5]As a result, many NGOs strongly believe that these declarations of principle may serve as a legal basis for future ‘ hard law’ norms.[6] This has led many legal scholars to believe that NGOs played an important role in helping to make international law more responsive to the needs of the international community. [7] In a lecture, Rosalyn Higgins, former President of the International Court of Justice (ICJ) pointed to NGO demands as a “one phenomenon in the reformation in international law”. [8] “An aspect of that reformation is a change in the concept of international law, and in particular, in our notions of the identity of the users and beneficiaries of international law”. [9]

For many NGOs as well as intergovernmental organizations, obtaining even as little as informal political declarations is already a lot since these ‘ given words and statements’ may then be used and publicized in order to bring it in to more formal arenas and to eventually turn them into legally binding instruments. Once international norms have legal effect, NGOs continue to have a watchdog and monitoring role to play in order to ensure that these norms are applied in accordance with the spirit in which they were negotiated, or that they are interpreted in a way that is favorable to the enforcement of legal rights. [10] In this way, NGO’s help foster a universal legal conscience, a loyalty to and compliance with a certain set values. In the early 21st century, NGOs have become unavoidable participants in the emergence, drafting and monitoring of international norms. In addition, as the voice of international civil society, they have had a hand in humanizing international law to the general public.


Footnotes

[1] S. Charnovitz , Nongovernmental Organizations and International Law, in Non State Actors and International Law (A. Bianchi Ed., p.350 (A. Bianchi Ed.,2009)

[2] S. Charnovitz , Nongovernmental Organizations and International Law, in Non State Actors and International Law (A. Bianchi Ed., p.350 (A. Bianchi Ed.,2009)

[3] http://www.globalpolicy.blog/; R.Wedgwood, Legal Personality and the Role of Non-Governmental Oraganizations in Non- State Actors as New Subjects of International Law, p. 27 (R.Hofmann Ed)

[4] M. Törnquist-Chesnier, NGO and International Law, Journal of Human Rights, Vol 3, No 2 (2004), p. 254
[5] M. Törnquist-Chesnier, NGO and International Law, Journal of Human Rights, Vol 3, No 2 (2004), p. 254

[6] M. Törnquist-Chesnier, NGO and International Law, Journal of Human Rights, Vol 3, No 2 (2004), p. 254

[7] Rosalyn Higgins, The Reformation in International Law, in Law, Society and Economy 207,211-215 (R. Rawlings Ed.,1997)


[8] Rosalyn Higgins, The Reformation in International Law, in Law, Society and Economy207,211-215 (R. Rawlings Ed.,1997)

[9] Rosalyn Higgins, The Reformation in International Law, in Law, Society and Economy207,211-215 (R. Rawlings Ed.,1997)


[10] M. Törnquist-Chesnier, NGO and International Law, Journal of Human Rights, Vol 3, No 2 (2004), p. 258




Thursday, October 28, 2010

Euthanasia and Assisted Suicide



Illustration Roel Venderbosch, www.nrc.nl




If a patient suffers unbearably and when there is no prospect of improvement, some regard the termination of life of the patient as the only option to end the unendurable suffering as quickly as possible.

The Merriam Webster dictionary defines euthanasia as: "the act or practice of killing or permitting the death of hopelessly sick or injured individuals (as persons or domestic animals) in a relatively painless way for reasons of mercy" [1]. In case of euthanasia, the death of the patient is caused by a third party. Self-assisted suicide on the other hand is not caused by a third party, but by the patient him or herself after he or she has been provided with the lethal means to commit suicide.

Euthanasia is a highly debated subject. In most countries it is a punishable offence. Euthanasia can be volunary or non-voluntary. In case of voluntary euthanasia a patient asks a physician to practice euthanasia in order to end his or her life to stop the unbearable suffering. When a patient cannot decide for him or herself, or cannot make his or her wishes known to other people (such as is the case when a person is in coma, or a young child, senile, mentally disturbed, severely brain damaged or severely mentally retarded), euthanasia performed on such a person is considered non-voluntary [2]. Euthanasia is considered involuntary when a patient is against the practice of euthanasia on his or her behalf. [3]

Euthanasia is considered passive when common treatments necessary for the continuance of life are witheld from the patient. In case of active euthanasia, lethal substances or means are used by a physician to end the life of a patient. [4]

In most countries the practice of euthanasia is illegal. Only in Washington (USA), Oregon (USA), Monatana (USA), The Netherlands, Belgium and Luxemburg, there are laws which permit the practice of euthanasia and assisted suicide under certain circumstances and when specific guidelines are followed. [5]

The Netherlands is the first country to legalise the practice of euthanasia. Since 2002 the Dutch Criminal Code of The Netherlands includes grounds for immunity from criminal liability. However, there are strict boundaries. The law on euthanasia is incorporated in Article 293 and inArticle 294 of the Ducth Penal Code. Article 294 describes the sanctions for the violation of the criminal law as specified in article 293.

In article 293 reference is made to Article 2 of the Termination of Life on Request and Assisted Suicide Act (Euthanasia Act) In article 2 the due care conditions are given for a performance of euthanasia or assisted suicide permitted by Dutch law [6]:

- The patient suffers unbearably and there is no prospect of improvement.
- The patient's request for euthanasia is voluntary and persists over time. When the patient's request for euthanasia has been made under the influence of others, a psychological illness or drugs, the request can however not be granted.
- The patient has to be fully aware of his or her condition, prospects and options.
- At least one or more independent doctors need to be consulted to consider the possibility of euthanasia. The physician needs to give a written opinion in which he confirms the above mentioned due care conditions.
- The euthanasia performed by the doctor or the assisted suicide by the patient itself needs to be carried out with due medical care and attention. The doctor needs to be present when assisted suicide is performed.
- The patient must be at least 12 years old. Patients between 12 and 16 years old need the consent of their parents when they request euthanasia on their behalf.

Dutch physicians who terminate a life at the request of a patient are not punishable when they act in accordance with the Dutch Criminal Code and the procedures of the euthanasia review committee. [7] A physician who practiced euthanasia has to report the death by non-natural causes to the regional euthanasia review committee. [8].

According to section 2 of Article 293 of the Dutch Penal Code, it is not punishable for a physician to end a life at the explicit request of a patient when he follows the procedure provided by the law and he complies with the due care criteria for euthanasia. Patient and doctor must discuss any alternative treatment. The patient has to suffer unbearably without a prospect of improvement. As long as there are alternative treatments available, there is prospect of improvement. [9] Article 294 of the Ducth Penal Code describes the sanctions for the violation of the criminal law as specified in article 293.

The Dutch Ministry of Security and Justice does not allow people from other countries to come to The Netherlands in order to seek termination of life or assisted suicide because the Dutch legislation permits these actions under certain cicumstances. [10]

In February 2010, a group of Dutch academics and politicians which calls itself 'Out of Free Will' launched a petition in support of assisted suicide or euthanasia for Dutch citizens over 70 who feel tired of life. This petition supports modification of the Euthanasia Act in order to legalise euthanasia and assisted suicide when an elderly person above 70 years of age is tired of life even if the due care criteria of the absence of the prospect of improvement and unbearable suffering are not be met. Such a modification of the Euthanasia act would imply that persons above 70 years of age should have the right to professional medical help to have their lives terminated when they feel tired of life. [11] So far the Dutch Euthanasia Act has not been modified yet.



Peace Palace Library Keywords

Relevant Links

Footnotes

[1] As quoted from The Merriam-Webster Dictionary.
[2] As quoted from What is non-voluntary euthanasia? , ProCon.org
[3] As quoted from Euthanasia Wikipedia
[4] Ibid.
[5] See Euthanasia and Assisted Suicide: Frequently Asked Questions, International Task Force on Euthanasia and Assisted Suicide
[6] As quoted from Article 2 of the Termination of Life on Request and Assisted Suicide Act (Euthanasia Act),Wetten.nl. For an English version, see for example, Termination of Life on Request and Assisted Suicide (Review Procedures) Act, Right to Die (NVVE)
[7]See Euthanasia, Rijksoverheid
[8] Ibid.
[9] See, for example, FAQ – Euthanasia in the Netherlands, Radio Netherlands Worldwide
[10] See Page nine of the brochure of the Dutch Ministry of Welfare and Sport about the Euthanasia Act of 2002.
[11] See Ruim 40.000 mensen steunen hulp zelfdoding , NRC Handelsblad

Tuesday, October 26, 2010

International and European criminal measures on intellectual property rights

On October 2, 2010, the 11th and final round of the negotiations for the Anti-Counterfeiting Trade Agreement (ACTA) was concluded successfully in Tokyo, Japan. The Government of Japan hosted the negotiations. Participants in the negotiations included Australia, Canada, the European Union (EU) - represented by the European Commission and the EU Presidency (Belgium) and the EU Member States- , Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States of America.

ACTA aims to establish a comprehensive international framework which will assist Parties to the agreement in their efforts to effectively combat the infringement of intellectual property rights, in particular the proliferation of counterfeiting and piracy. The draft of the agreement includes state-of-the-art provisions on the enforcement of intellectual property rights. This includes provisions on civil, criminal, and border enforcement measures, robust cooperation mechanisms among ACTA Parties to assist in their enforcement efforts, and establishment of best practices for effective intellectual property rights enforcement.

EU criminal measures and competence
The Presidency of the Council, representing the Member States, negotiated the criminal measures. It is uncertain whether the Presidency is competent to do so. According to art. 3.1 of the Treaty on the functioning of the European Union (TFEU), the European Union has exclusive competence in the area of common commercial policy. In this case, ACTA negotiations should possibly have been conducted by the European Commission. The Presidency of the Council may not be competent to initial criminal measures in trade agreements.

Until September 2005 it was commonly understood that the Treaty establishing the European Community conferred no power to define criminal offences or prescribe criminal sanctions. The extent of the European Union’s legislative competence in relation to criminal law and procedure was generally considered to be limited to title VI (provisions on Police and Judicial Cooperation in criminal matters, commonly referred to as the third pillar) of the treaty on European Union.

The Treaty of Lisbon entered into force on 1 December 2009. The EU is competent to make criminal law. Criminal measures on intellectual property rights have to be based on art 83.2 TFEU: “If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.” Furthermore, the criminal measures have to comply with the Treaties, and measures have to be “essential” and comply with the principle of proportionality (see also the controversy competence cases of the European court of justice, case C-176/03 and case C-440/05, European Commission vs European Council).

The ACTA agreement's appropriateness should match the EU principle of proportionality. As a consequence of that EU principle, the qualification characteristics of the elements of a crime must be defined as clearly and narrowly as possible. The Max Planck Institute concluded in its statement on the proposal of the Criminal Measures IP Directive by the European Commission (COM/2005/276/FINAL), that harmonisation of criminal law in the field of intellectual property, must remain confined to cases of clear piracy and counterfeiting:

“14. Restricting the application of the directive to infringements carried out “on a commercial scale” fails to provide for an appropriate and sufficiently precise definition of the elements of a crime, all the more as it would practically only exclude acts undertaken in good faith by consumers. An example of a more precise definition of what constitutes counterfeiting and piracy can be found in Council Regulation (EC) No 1383/2003.
15. Indeed, when proper account is taken of the proportionality principle, harmonisation of criminal penalties can only be justified in relation to acts fulfilling the following elements cumulatively:
- Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).
- Commercial activity with an intention to earn a profit.
- Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.”


Since the broad definition of commercial scale in ACTA with “Commercial activity with an intention to earn a profit”, one can only conclude ACTA’s criminal measures fail to meet the EU principle of proportionality. According to an analysis of the FFII (Foundation for a Free Information Infrastructure) the Anti-Counterfeiting Trade Agreement is not in line with present EU laws.
An opinion of the European Court of Justice as to whether ACTA is compatible with the EU Treaties and laws should be obtained.

Publications in the Peace Palace Catalogue:
About ACTA
About European criminal law and EU competence
About European union, intellectual property and counterfeit

Monday, October 18, 2010

Religion and Constitutional Rights

Lately constitutional rights law cases are very much at the centre of public attention in the Netherlands. The cases have a common denominator: religion. The on-going case of Geert Wilders concerning his views on the issues of immigration, Islam and Islamic extremism and freedom of speech in an effort to defend Dutch culture and national identity; the dropping of the case against Dutch cartoonist Gregorius Nekschot (pseudonym), persecuted for several years for his anti-Islamic cartoons criticizing Islam’s perceived unwillingness to adopt the Dutch value of tolerance; and last but not least, the case against the ‘Staatkundig Gereformeerde Partij’ known by the Dutch acronym ‘SGP’, for not allowing women to stand for election.

The SGP is one of the oldest parties in the Netherlands. It was founded in 1918 by fundamentalist conservative Calvinists. Since entering parliament in 1922, the SGP has always been represented in parliament with two to three seats, because of its very loyal group of voters.
Not only does it reject the obvious subjects such as abortion, euthanasia, gay marriage and television, it also rejects women in politics. According to the SGP, the bible is very clear on these subjects. Men and women serve different roles in society and one of the consequences of this role is that women should not participate in politics.

Basing itself on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) the ‘Hoge Raad’ [Supreme Court] stated in a ruling* of 9 April 2010, that freedom of religion permits individuals the right to believe what they wish, and it also allows people the right to express their beliefs publicly. It does not, however, provide people with a free pass to violate national and international law. While members of the SGP are entitled to believe and practice their beliefs freely (even if those beliefs are anti-feminist), the party itself should not be allowed to practice those beliefs in a way that contradicts the law.

In a statement, the SGP criticized the ruling as “incomprehensible” and said it would have no immediate effect: “The SGP knows that it is dependent on God in all circumstances and will go on no less strongly carrying out its mission,” it said, “that is, bringing Biblical values into the governance and organization of the Netherlands.”

In its latest June election candidate list there were still only male candidates represented.


On Thursday 14 October 2010 the SGP announced that it would appeal the Supreme Court judgment before the European Court of Human Rights (ECtHR) in Strasbourg as the Supreme Court’s decision is at odds with with the ECtHR’s jurisprudence of the freedom of religion and the freedom of political association.

The CEDAW defines discrimination against women as "...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." With this in mind, the direct applicability awarded to the CEDAW in the Supreme Court decision can have far reaching consequences for other religions that discriminate against women in the Netherlands.


* Press Release [in Dutch only] ; Decision : LJN BK4549 [in Dutch only] and BK4547 [in Dutch only]

Friday, October 8, 2010

Shabtai Rosenne, London 1917- Jerusalem 2010

Professor Shabtai Rosenne, international jurist and diplomat, has died.


The Peace Palace has many memories of Rosenne. His activities as an international lawyer brought him there many times.
He lectured twice at the Hague Academy of International Law, in 1954 on United Nations Treaty Practice (Vol. 86, 1954 II) and in 2001 (Vol. 291, 2001) he gave an outstanding General Course. He was representative of Israel in the advisory proceedings before the ICJ in the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Case (1951), and adviser in several cases (Elettronica Sicula S.p.A. (ELSI) (1987), Application of the Genocide Convention Case (1993). From 1994 to 1996 he was a Member of the Permanent Court of Arbitration, seated in the Peace Palace. He also was a member of this Court's Steering Committee.

In 2004 Rosenne was awarded The First Hague Prize for International Law. During the ceremony in the Peace Palace Judge Kooijmans read the Report of the Nominating Committee,‘Professor Rosenne has dedicated the greater part of his scholarly life to the study of the Courts’ [i.e., the International Court of Justice and its predecessor, the Permanent Court of International Justice] constitutional framework, their working-methods and their case-law. He is without peer in his chosen field and is universally respected. He is beyond any doubt the most authoritative expert on the Court and in pleadings his views are regularly invoked by the Parties, usually by both of them, since having Rosenne on your side is seen as an indisputable
asset.’

Rosenne’s principal work on the ICJ “The Law and Practice of the International Court”is considered an indispensable guide for students in this field and is permanently available in the Reading Room of the Peace Palace Library.
This Library, specialized in international law, has an extensive collection of 195 publications (books, book chapters and articles) of Rosenne. From his early work “Israel’s Armistice Agreements” (1951) till his last article “The International Criminal Court and International Court of Justice”in 2009. The collection reflects his amazing knowledge of international law.
Professor Rosenne’s Peace Palace Library Registration Card:


Student of International Law!

Monday, September 27, 2010

Roma Rights in the European Union.

Lately many European Union (EU) Member States experience high tensions with their Roma population. On July 28th 2010, French President Nicolas Sarkozy launched a new anti-crime initiative targeting the ‘itinerant population’ with a particular emphasis on the Roma community.[1]
This decision caused much controversy within the Institutions of the European Union. On August 19th, the French government decided to begin to expel Roma , mainly from Romania and Bulgaria, as they were living illegally in the country. Foreign born Roma are often seen begging on the streets of French cities and many French people consider them a nuisance. The Roma issue gained importance for the European Union (EU) due to the accession of new Eastern European countries with large Roma populations. When Romania and Bulgaria joined the EU in 2007, it was determined that their citizens will enjoy full freedom of movement within the EU as of January 2014. The French government therefore, stated that the measures are in line with EU rules. [2]

The Roma make up the largest ethnic minority in the EU. They trace their origins to medieval India and settled in Europe as early as the 13th century. Historically, the Roma have been oppressed, enslaved, persecuted, expelled and subjected to ethnic cleansing during the Kosovo conflict in 1999.[3]

To a large extent, the European Human Rights platform is ill suited to effectively address the profound social, political and cultural challenges the Roma face. From the late 1990’s to 2008, Roma applicants to the European Court of Human Rights (ECHR) argued that they were victims of racial discrimination with respect to one or more substantive Convention rights.
Year after year, case after case, the European Court of Human Rights consistently declined to find violations of article 14 of the European Convention of Human Rights. [4]
As time progressed, the body of evidence documenting discrimination against the Roma accumulated in both applicants before the Court and in monitoring reports by the Council of Europe and the NGO community. It was not until 2008, that the Court ruled an incident of police brutality against a Roma victim racially motivated and breached article 14 of the ECHR in Stoica versus Romania.[5] Unfortunately, this decision did not lead to much improvement regarding the position of Roma in Europe. In July 2008, the Italian government began to fingerprint Roma adults as well as children as a government attempt to fight street crime. The Italian government stated that only Roma lacking valid identification papers would be fingerprinted and claimed the measure was designed to help Roma children who are often seen begging on the streets. [6] The European Parliament responded by adopting a resolution urging Italian authorities ‘ to refrain from collecting fingerprints from Roma, including minors as this would clearly constitute an act of direct discrimination based on race and ethnic origin. [7] Upon reviewing this policy, the European Commission, found that there was no evidence of intentional discrimination or of seeking data based on ethnic origin. Subsequently, the European Commission reversed the admonition by the European Parliament and approved the measure of the Italian government. [8]

Apart from this obvious lack of transparency, there also seems to exist a disparity in standards that are being applied to new member states and the old European Union establishment.
The European Council has required that new prospective members ratify certain non- discrimination protocols such as the European Council Framework Convention on national minorities as a precondition to granting EU membership.[9] However, not all of the old EU members have ratified the instrument. Noteworthy is that France is not a signatory to this Convention.

According to a report by Álvaro Gil-Robles, the former Commissioner for Human Rights of the Council of Europe, there is a lack of political will in many places to address Roma problems. Furthermore, the report states that national authorities, particularly those in elected positions are often unwilling to implement measures under national programs for Roma inclusion because such programs are unpopular with their constituents. [10]

During the Roma Summit in 2008, José Manuel Barroso, President of the European Commission, pointed out that the Roma problem cannot be solved by the European Union alone. He emphasized that political will as well as Roma involvement is essential to improve relations between the EU Member States and their Roma citizens. [11]
If the European Commission decides to take France to Court on the expulsion of Roma groups, it would most likely start a procedure claiming a breach of article 58 of the Lisbon Treaty which determines that Member States can only expel an individual when he or she poses a serious threat to society, not an entire community as part of an preventive anti-crime measure. [12]
As the Roma rights movement looks to the future, it is clear that legal instruments by themselves will not suffice in resolving the Roma problem. The challenge lies in finding arguments that can compel reforms outside of European courtrooms in parliaments, local governments and other centers of political power capable of translating judicial decisions into changes on the ground.[13]



Footnotes

Other sources:
Further reading
Paris: Harmattan 2009
Aldershot: Ashgate 2007
Roms, une question europeenne by F. Sarter
Database Cairn Available in House Only
Les Roms migrants en région parisienne : les dispositifs d'une marginalisation by Alexandra Nacu in Revue europeenne des migrations internationales
Database Cairn Available in House Only

Friday, September 17, 2010

Norway and Russian Federation sign maritime delimitation agreement

In Murmansk on Wednesday 15th September 2010 Norway and the Russian Federation signed a treaty concerning the maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean. The disputed territory covered 175,000 square km (67,600 sq miles), an area mainly in the Barents Sea between proven petroleum reserves on the Russian and Norwegian sides.

The treaty marks the end of a long process that started in 1970. The breakthrough in the negotiations was made public during President Medvedev’s visit to Norway on 27 April this year, when the Norwegian and Russian foreign ministers signed a joint statement announcing that the two countries’ negotiating delegations had reached preliminary agreement on delimitation.

At a news conference President Dmitri A. Medvedev of Russia said: “I believe this will open the way for many joint projects, especially in the area of energy” . The Norwegian prime minister, Jens Stoltenberg, said it showed good will in the face of rising international anxiety over who controls the Arctic seabed, which by some estimates contains a quarter of the world’s undiscovered fossil fuels.

In the treaty two Annexes are included.
Annex I sets rules about fisheries matters. According to article 4 Annex I the Norwegian-Russian Joint Fisheries Commission shall continue to consider improved monitoring and control measures with respect to jointly managed fish stocks.

Annex II deals with the Unitisation Agreement on commercial exploitation of transboundary hydrocarbon deposits in the Barents Sea and the Arctic Ocean. Article 1 under 11 obligates each Party to ensure inspection of hydrocarbon installations located on its continental shelf and hydrocarbon activities carried out thereon. In case of a disagreement about the Unitisation Agreement in article 1 Annex "Each Party shall appoint one arbitrator, and the two arbitrators so appointed shall elect a third arbitrator, who shall be the Chairperson. The Chairperson shall not be a national of or habitually reside in Norway or the Russian Federation. If either Party fails to appoint an arbitrator within three months of a request to do so, either Party may request that the President of the International Court of Justice make the appointment. The same procedure shall apply if, within one month of the appointment of the second arbitrator, the third arbitrator has not been elected." (article 3 under 2 Annex II).

+++++++++++++++++++++++++++++++++++++++++

Books and articles in Peace Palace catalogue


About Maritime boundaries Barents Sea


About Fisheries in the Barents Sea


About Maritime boundaries Arctic Ocean




Relevant documents:


Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean (Annex I and II)

Joint Statement on maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean


Relevant press articles:

New York Times : Russia and Norway Reach Accord on Barents Sea;

ITAR-TASS News Agency : Russia, Norway sign maritime areas delimitation treaty

Reuters : Russia and Norway sign border deal for Arctic energy