Autor: RJ

the forgotten Genocide: the Herero and Nama

~ RJ ~ Kommentar hinterlassen
there’s a lot of talk on Genocide these days. Notwithstanding the need to criticize the saddening attitude of the Turkish government towards the dark days of the fading Ottoman Empire (and its influence on Turkish communities abroad in this regard, think about the recent demonstrations in Vienna) and the fate of the Armenians, it should not be forgotten that the first genocide of the 20th century was actually perpetrated by colonial Germany in what is now Namibia.
http://en.wikipedia.org/wiki/Herero_and_Namaqua_Genocide

Liberland and international law

~ RJ ~ Kommentar hinterlassen
on 13 April 2015, Czech activist Vit Jedlicka (sorry for omitting the diacritics) declared a new state – „Liberland“, located betwen Croatia and Serbia. According to the website, it covers an array of seven square kilometres which would make it bigger than the Vatican and Monaco. Its motto is to „to live and let live“ and overall it seems to have a profoundly libertarian background, eg since it explicitly states its need for people who „have respect for private ownership which is untouchable“. The Constitution and its laws are not available yet.

From the perspective of international law, it sounds like a nice example to be included in lectures and/or textbooks. The interesting thing is that Liberland – in contrast to other attempts to found new microstates – like Avalon in Switzerland or the Kingdom of Germany – is not trying to secede from a given territory but take advantage from a Crotian/Serbian border dispute which allegedly makes the territoriy in question terra nullius („no man’s land“) and thus up for grabs. Although the big time of conquering hitherto undiscovered lands has passed long ago, there is some unclaimed territory (another example would be Bir Tawil between Sudan and Egypt). If neither Croatia nor Serbia actually claim the territory of Liberland, it could ultimately remain a somewhat forgotten piece of land and provide ground for yet another social experiment in the creation of unrecognized and largely ignored micronations. At the end of the day, all it takes to seize unclaimed territory is some degree of control (depending on its size) and animus occupandi, which both seem to be present in the case of Liberland. The really interesting question arises from the fact that it is not a state trying to acquire territory but an individual/a small group that does not seem to fulfill the criteria to be called a „people“ in the sense of Jellinek’s three elements of statehood; do the same rules apply mutatis mutandis or could it simply be said that an individual/a small group cannot establish sovereignty on terra nullius – a question that has already arisen in connection with the Principality of Sealand and still not finally settled within academic circles until this very day.
Theoretical questions aside, the experiment suffers from the fact that Croatia exercises control over the territory of Liberland and prevents the establishment of a state proper, which makes this case a rather philosophical one. All those who expected a libertarian paradise for tax evasion and drug use may end up disappointed.

D’Amato, Anarchy, and the purpose of international law

~ RJ ~ Kommentar hinterlassen

In a recent article in the latest American Journal of International Law, Anthony D’Amato examines the structure of international law and claims that its primary purpose is self-preservation, not the regulation of international relations. His characterization of international law along with reference to Schachter’s good old ‚invisible college of international lawyers‘-metaphor may well stir debate. Tom Farer (in a reply in the same issue of the American Journal) for instance already noted D’Amato’s understanding of anarchy as chaos. One may add Kant’s understanding of Anarchy as ‚Law and Freedom without force‘ (see http://en.wikipedia.org/wiki/Anarchy#Kant_on_anarchy). After all, international lawyers in particular are well aware of defending the anarchic, yet nevertheless legal, character of their field (already Jellinek has characterized international law in this manner).

Here is the relevant passage from D’Amato’s article (footnotes omitted):

the general-systems viewpoint here takes an essentialist position in claiming that the rules and processes of international law can be best explained if we start with the selfprotective nature of all aggregative, interconnected entities known as general systems.

International law is not a stack of rules on a library shelf. It is a professional industry, made up of national officials, diplomats and statespersons, international practitioners and scholars, law professors and students, UN officials, judges of international courts and their clerks, professional arbitrators, judges and clerks of bilateral claims commissions, and advocate-members of NGOs, among others—all of whom were well described by the late Oscar Schachter as an invisible college of international lawyers dedicated to a common intellectual enterprise. Because of the time that these persons have devoted to studying and learning international law, they have invested significant human capital in the system’s continued utility and preservation. To be sure, they will often disagree as to whether an alleged rule belongs to the set of accepted rules of international law (especially if it is their job to come out the way that their employers or their governments demand), but even then they have a personal stake in preserving and maintaining the system of international rules. Governments turn to them for advice as to the international legality of a given policy that the government plans to implement—at the very least in order to help predict the reactions of the legally informed international community. These advisers, both official and unofficial, infuse the international legal system with a dynamic sense of purpose and persistence. Thus, to the tens of thousands of persons making up the invisible college around the world, international rules can sometimes seem incorrect but never irrelevant.

The greatest threat to the viability of the international-law system is anarchy. With total anarchy, international law would perish and might be replaced, if peace is restored, by something entirely different (such as a world dictatorship). Thus, when any controversy arises among nations and the relevant rules are in dispute, the international legal system’s bias for self-preservation will tilt toward the rule that offers the greater probability of a peaceful resolution of the controversy and will bend away from the rule that prolongs or escalates it. That is not to say that justice is irrelevant to conflict resolution. But justice does not function in the abstract; rather, it is perceived justice that counts. And most of the time the perceived justice is symbiotic with the resolution that augurs future peace. Arguably, a justly perceived decision, both in domestic and international law, promotes stability. After the temper of a losing side cools down, the just decision may gradually be accepted as the right decision.

Anthony D’Amato, ‚Groundwork for International Law‘ (2014) 108(4) The American Journal of International Law 650, 652-3.

zu den griechischen Reparationsforderungen

~ RJ ~ Kommentar hinterlassen
Griechenlands Regierung wird konkret und beziffert die Höhe der griechischen Reparationsforderungen mit 278,7 Milliarden Euro. Die deutsche Bundesregierung hat derartige Forderungen stets zurückgewiesen, insbesondere mit Verweis auf ein entsprechendes Abkommen von 1960.

Das Thema zeugt von einer weitgehenden Vermischung von Politik und Recht, zumal zwischen der derzeitigen Schuldenkrise und den Reparationsforderungen kein unmittelbarer Zusammenhang besteht. Vielmehr gewinnt man den Eindruck einer versuchten Aufrechnung, wonach Griechenland ganz anders dastünde, wenn Deutschland sich seiner Verantwortung stellen würde.

Aus rechtlicher Sicht gibt es zu dem Thema einen guten Beitrag von Jasper Finke auf dem Juwiss-Blog. Conclusio: die griechischen Forderungen sind gar nicht mal so unbegründet, die Durchsetzung ist freilich eine gänzlich andere Angelegenheit. Aber man lese selbst: https://www.juwiss.de/9-2015/

Conor Foley on the limits of forcible and non-forcible humanitarian interventions and human rights

~ RJ ~ Kommentar hinterlassen

Humanitarian interventions are at best a necessary evil since by their very nature they cause harm to the societies they are trying to help. Even at their most benign, relief assistance operations, such as the one following the tsunami, lead to economic and social distortion, weaken local capacity and encourage dependence. Military interventions are even more destabilizing and result in significant costs for both the occupier and occupied. It is noticeable how few places where large-scale humanitarian interventions took place in recent years have succeded in making the transition to stability. Virtually all these countries remain deeply fractured societies with weak national authorities. Some are effectively still governed as international protectorates, to the increasing frustration of their own populations. […]
Many commentators have also noted striking similarities between today’s debates on humanitarian interventions and those that took place towards the end of the nineteenth century during the ’scramble for Africa‘. The missionaries, teachers and doctors who followed the soldiers of European armies presumably believed they were helping to spread the benefits of ‚civilization‘ to ‚backward races‘. Anti-slavery activists enthusiastically supported military action against the largely Arab-controlled slave trade. The British Navy’s decision to interdict slave ships flying foreign flags and liberate their victim was a humanitarian assault on the previously accepted international legal doctrine of respect for state sovereignty. The treaties enabling slave traders to be put on trial by any state that captured them also laid the basis for subsequent laws of universal jurisdiction. John Stuart Mill could be seen as one of the earliest advocates for the establishment of international protectorates, when he argued that‘ ‚Despotism is a legitimate form of government in dealing with barbarians, providing the end be their improvement.‘
Of course, the analogies can be overdone but they require western liberals to think more seriously about the supposed universal values they hope their interventions will promote. […] international human rights and humanitarian law were primarily drafted by western political leaders and the supporters of both movements remain overwhelmingly middle-class, liberal and western in their social backgrounds, yet the main focus of their efforts is in places where quite different conceptions of these notions prevail […]
This suggest the need to develop a rather different discourse on human rights interventionism, one which is more modest in recognizing its limitations, but more ambitious in recognizing what needs to be done. A useful starting point would be to acknowledge that the conception of human rights western liberals have created, refined and prepackaged for export, is not the only one in existence. A broader dialogue is needed for the ways in which respect for human dignity, personal freedom and individual autonomy can be located in discussions of how to address the injustices caused by the imbalances of wealth and power in the world today. Combating extreme equality are two of the most important underlying causes of conflict and humanitarian crises, human rights and humanitarian organizations haven an important role to play in the arguments for economic justice.

Conor Foley, The Thin Blue Line. How Humanitarianism Went to War (Verso 2008/2010), 233-5 (footnotes omitted)