Useful treaties and conventions to use for World Order essays

This blog post is written with a HSC Legal Studies audience in mind, and more specifically those who do ‘World Order’ as an option in Legal Studies in NSW.

There are many treaties and conventions that you can choose from in a world order essays.  However, there are certain treaties and conventions are particularly useful, because of their explicit links with many useful talking points.  I would recommend that you familiarise with them.

1. Genocide Convention 1951 (The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG))
   • Adopted by the UN General Assembly on 9 December 1948 as General Assembly Resolution 260. This demonstrates how international law and convention can work.  Genocide Convention was NOT a UNSC resolution.  it was a UNGA resolution, hence not directly binding.  Yet because it established a persuasive legal norm, it became a binding international law, even on those who did not sign.  (The very definition of jus cogens is that it is law whether you agree or not.  See Professor Shirley V Scott, International Law in World Politics, p.5)
   • It defined genocide, and that the prohibition of genocide reinforced as a jus cogen.
   • It prescribes this as a crime against international community that must be punishable by “a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal“.  (Article 6)  This is the basis of subsequent Ad Hoc tribunals as well as the ICC in 1998.
   • Under Article 8 of the convention, signatories may “may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide“.  This provides the rationale for a possible chapter 7 intervention in the face of credible evidence of genocide.  In fact, it arguably imposes a responsibility to protect in the face of such evidence.
   • The convention also underlines the potentially persuasive roles of lobbying and NGOs in encouraging cooperation and compliance, or in particular the role of a one-man NGO in the person of Raphael Lembkin, a Polish-Jewish lawyer and professor of international law in Rutgers University NY, who kept campaigning for a formal convention against genocide throughout the inter-war years (1919-1939).  His persistence and refusal to give up meant that the world came face to face with the fateful atrocities of the Holocaust, Lembkin’s campaign finally found a receptive audience among world leaders.  Thus, the story of Genocide Convention illustrates that
     • It is sometimes hard to evaluate the impact of NGO lobbying.  Certainly, during the inter-war years, it appeared Lembkhin’s lobbying fell on deaf ears.  (See Dr Sarah Ellen Merry, NYU)
     • But long term persistence can sometimes pay off, especially when historical and political opportunities arise.  This is the story of Lemkhin.  
2. Ottawa Treaty 1997 (also known as ‘Mine Ban Treaty‘, or the ‘Treaty on the Prohibition of Land Mines‘)
   • Signatory states agreed to stop using anti-personnel land mines within ten years.
   • This treaty is excellent for illustrating the issue of compliance, because 38 nations have not signed it, and these being some of the powerful military powers in the world (e.g. USA, Russia, China etc.)
   • Because of this, the treaty has been recognised as jus cogens.  It simply has not yet established the prohibition of land mines as legal norm in international law yet.  Needless to say, it also demonstrates how the interests of major sovereign powers can frustrates and limits the effectiveness of legal instrument.
   • The treaty is also great, again, for illustrating the powerful persuasive role of long-term campaigns and lobbying by NGOs in encouraging compliance, cooperation and promoting law reform in response to increasing global awareness of the humanitarian danger of anti-personnel land mines.  This included:
     • Mine Action Canada, which lobbied the Canadian government to lead the diplomatic effort
     • Celebrities like the late Diana, Princess of Wales
     • International Campaign to Ban Landmines
3. Rome Statute 1998
   • The fact some major sovereign nations have not signed or ratified the Rome Statute obviously undermines the strength of the treaty.
   • Some of the non-signatories are P5 powers.  This is an even bigger problem:
     • ICC Prosecutor may initiate investigations and issue arrest warrants against individuals in member-states.
     • However, if the suspects are citizens of non-signatory nation-states (e.g. Sudan), then ICC could only initiate investigations and issue arrest warrants against such suspects if the UNSC refers such suspects to the ICC.
     • Obviously, this gives the P5 powers enormous influence, and it ensures that soldiers and officials from non signatory states like China, US and Russia would never face ICC justice.  This leads to accusations of unfairness, and that ICC is captive to the interests of powerful sovereign powers.
     • Refer to China being unwilling initially to refer President Omar Bashir to the ICC, due to its strong economic ties with Sudan.
     • Refer to China deciding to allow UNSC to refer Bashir to the ICC after heavy diplomatic pressures, as well as mounting unavoidable evidence of atrocities committed by Sudan against the people of Darfur.  
       • Make the point that in diplomacy, credibility is often seen as important asset.  This explained China’s changing stance.
   • Its lack of direct arrest mechanism means that it relies on the cooperation and compliance of member-states to assist.  This can lead to problems.
     •  Refer to the incident of Zuma and Bashir.  
4. Nuclear Non-Proliferation Treaty 1968
   • The treaty establishes non-proliferation as a legal norm.
   • It establishes the IAEA (International Atomic Energy Agency) as a verification agency.  This clarity underlines its effectiveness.
   • It relies on the UNSC for enforcement.  This does give P5 enormous powers again.  However, keep in mind that P5 are legally allowed to possess nuclear weapons under NPT.  So, it was in their interests to support the NPT legal regime.
     • This demonstrates that treaty regimes can be quite effective if they are aligned with the political interests of powerful member states.
   • However, the enforcement abilities of NPT can be ineffective if
     • Violating states are willing to pay the diplomatic and economic costs of violations (e.g. sanctions against North Korea has not stopped North Korean nuclear weapons programs.
5. Fourth Geneva Conventions 1949
   • This is an excellent treaty to demonstrate compliance.
   • This is with particular reference to the role of ICRC in demanding access to Prisoners of War as well as monitoring violations of international criminal law in conflict situations.
   • This is because ICRC is a neutral NGO.  This gives it credibility.
   • Refer to the Guantanomo Bay case.

 

Media updates – marriage equality debate in Australia

 

There have a few media articles that I would draw your attention to. They really highlight the roles of NGO lobby groups as well as media in pushing and shaping public attitudes towards the issue of marriage equality, as well as changing or consolidating the stance of key MPs involved in the legislative process.

The first media article has to do with the Catholic Church in Australia lobbying several CEOs of major Australian firms to stop supporting marriage equality. (‘Church told gay CEOs at Qantas, SBS to stop supporting marriage equality’, Sydney Morning Herald, 15 April 2016). Interestingly, two of these CEOs are themselves gay. These firms included Qantas, Telstra and a major law firm called Maurice Blackburn. These CEOs have previously stated their support for marriage equality, with Telstra’s CEO stating that this is about “equality” for him.

Thus far, it appears the counter-lobbying by the Catholic Church might have worked, with Telstra deciding to step back from its public support for marriage equality, prompting threats of boycotts by some LGBTI activists. However, other telecommunication firms like Vodafone have stated their support for marriage equality.

Why is corporate support for this issue significant? First of all, major corporations are major employers.  Therefore, their corporate policies, including employment and employee management policies help shape social norms. This includes integration of anti- homophobia and anti-discrimination policies. In this sense, they are ANOTHER example of a non-government organisation playing a role in shaping public perceptions and by extension, law reforms.

This news, incidentally, can be read in comparison with news from North Carolina and Mississippi about major firms (e.g. Microsoft, Google, Apple, K-Mart) expressing opposition to new state laws that discriminate against lesbians, gays and transgender persons, with major firms stating that they would reconsider whether to invest in North Carolina and Mississippi. (‘Anti-Gay Laws Bring Backlash in Mississippi and North Carolina’, New York Times, 5 April 2016)

Secondly, for major public corporations to step into the political turf war that is marriage equality debate throws further light on this issue. It also underlines the role of media in facilitating public awareness and discussions on this issue.

Second media article is about Federal Treasurer Scott Morrison sharing a stage with a prominent anti-gay rights activist, Eric Metaxas, in an upcoming Australian Christian Lobby conference. (‘Scott Morrison to share Australian Christian Lobby stage with anti-gay extremists‘, Sydney Morning Herald, 16 April 2016).  Metaxas has made several controversial statements about the marriage equality lobby, including comparing them to the rise of Nazism in Germany.  This article underlines one of the key roles that lobby groups have played in this issue, namely to connect with key MPs who are involved in the legislative process.  The same, incidentally, can also be said for Australian Marriage Equality and their lobbying of key MPs like Senator Wong (ALP) and the PM Malcolm Turnbull (Lib), both of whom attended the 2016 Gay and Lesbian Mardi Gras as supporters.

‘Amnesty slams ‘shocking’ Indigenous conditions’ (ABC News, 10 October 2011)

‘Amnesty slams ‘shocking’ Indigenous conditions’ (ABC News, 10 October 2011)

Key Excerpt:

(Amnesty International) Secretary-general Salil Shetty on Saturday toured remote towns in the Northern Territory, including Utopian communities north-east of Alice Springs.

He described the plight of locals as “devastating”, saying people there are living in inhumane conditions that are almost third-world.

“I’ve been to many places in bad shape in Africa, Asia and Latin America, but what makes it stark here is when you remind yourself you’re actually in one of the richest countries in the world,” he said.

“I can’t believe I’m actually in one the richest countries in the world and you have people, Aboriginal communities here who are living in conditions which are really almost inhumane,” he said.

A two-bedroom house he saw had 15 people living in it; others had no toilets or showers. Some had been without electricity and water for months.

Mr Shetty says the Federal Government is contravening its human rights obligations.

He says the community has been stripped of funds that provide basic services, including running water, electricity, and hygiene services.

‘Think Again: War’ (Foreign Policy, 7 October 2011)

I will not comment on this link too much at this point.  I have a things waiting for me to attend to.  But this article is really useful for students who want to develop a critical approach to their legal studies essays in the ‘World Order’ section of the HSC examination.

‘Think Again: War’ (Foreign Policy, 7 October 2011)

The author of the article is Joshua Goldstein.  He is an professor emeritus of international relations at American University and author of Winning the War on War: The Decline of Armed Conflict Worldwide.  In the article, he goes through six commonly held assumptions about global conflicts, and critically re-evaluates.  Students are encouraged to go through the flow of argument, and use them to challenge what you might have learnt in textbooks and from teachers.  Alternatively, you may set out to argue some of the relevant points by Goldstein.

But remember, develop a critical approach to legal studies essays is the key to exam performance.

Cyber-sexual harassment – a shocking story

This post is actually somewhat personal, but it actually happened to a friend of mine in Singapore.  It is a shocking story about how a man hijacked a woman’s identity, abused it, and how the Singaporean legal system appears to be utterly impotent in protecting its own citizen.

“Cyber Harassment and Women’s Rights”

[Excerpt]

My life has not quite been the same since 2nd Nov 2010. A person whom I helped in real life decided to destroy my life by posting my personal details bearing my name, age, ethnic group, work and mobile phone numbers, workplace and home address in an online ad as a teacher in Singapore advertising for sexual services.

This person (for the sake of convenience, I shall call him the impersonator) also stole pictures of me from a friend’s Facebook photo album and posted it along with my personal particulars these online ads which were placed in local classified online ad websites as well as on international pornographic sites. He also created a fake Facebook profile on me bearing my name.

He impersonated me online and chatted with men and had them to call and visit my school where I teach and my residence to “indulge in rape fantasies in my school toilets.” He also incited men “catch me by surprise at my home and school.”

What has been rather shocking is the attitude of the Singaporean law enforcement authorities to her complaints.

From my experience with cyber harassment, it is very frustrating when ever I articulated my fears to the authorities about me (or my female pupils) being sexually attacked as these fears were dismissed as “just talk by cowards hiding behind the cloak of the internet” , or when they dismissed the perpetrator as “ a juvenile delinquent or mischief-maker”. I was made to feel that I was making a mountain out of a molehill despite receiving numerous rape threats bordering on the hundreds and visitation by men at my home for “sexual services’ who wanted to “catch me by surprise” by either “hid[ing] in my school toilet to rape me and my female students as instructed by [me]” or “wait[ing] at my flat’s void deck to rape me.”

So the cavalier attitude adopted by the law enforcement agencies in regards to my case of cyber harassment only demonstrated to me this: Cyber harassment is gender discrimination as women in my country need to tolerate these cyber “pranks”. Despite the identity of the perpetrator known to the authorities and the fact that he admitted to creating the ad and impersonating me, he is still out there and free to send even more men to my home and workplace to “indulge in [my] rape fantasies.”

I get the impression that the authorities will only take action when I do eventually get raped by one of these men sent by the perpetrator or when one of my female pupils gets raped. Even then, the perpetrator might walk free as the rape might be committed by the “minions of sexually frustrated men or perverts” whom he incited to visit me.

The law enforcement officer in charge of cybercrime have also advised her that “law in Singapore has not evolved to deal with cases like this.”  This turns out to be a rather strange statement, because as my friend found out, there are actually quite a few laws in Singapore that appear to deal with cyber-sexual harassment, such as the Indian Penal Code and the Computer Misuse Act.  Infringement of the latter legislation in Singapore carries a maximum of two years imprisonment.

Perhaps it is closer to the truth to suggest that law enforcement authorities in Singapore have not quite caught up with the law.  Not an unusual situation in many developing countries, but one would have expected better from Singapore.  If this has happened in Australia, the media would have pounced on it, and the relevant minster would front out to the camera and face some tough questions.  I am not familiar with the role of the Singaporean media in Singaporean society, but this is where a robust media can play a vital role in a civil society.

Neuroscience, neurolaw?

This is from a popular Canadian talk show, The Agenda with Steve Paikin, screen on TVO (TV Ontario).  Normally I would focus on media reports from Australia and the US, but the topic of this discussion is very relevant to the whole question of mens rea and the use of ‘insanity’ as a defence against criminal charge, especially in the light of advances in neuroscience.

I will comment further about this, because this might not be easy to comprehend for senior Legal Studies students.  I will also post a paragraph illustrating how to integrate this kind of media report discussion into a crime essay.

Sexting case: a potential legal precedent

‘Prosecutor pursues first ‘sexting’ conviction in case involving naked 13-year-old‘ (Sydney Morning Herald, 1 November 2010)

One of the beauty of studying ‘Individual and Technology’ is the regular occurrence of potential legal landmark cases.  This is one of them.

More later …

Liu Xiaobo, jailed Chinese human rights activist, awarded Nobel Peace Prize

Where is the burden of proof? (‘Calls for law reform after girl sold for sex’)

This is not a pleasant case, but it raises important legal issues worthy of critical reflection.  Read the media report and then ask yourself whether there are certain circumstances where the onus of proof should be on the defendant rather than the prosecutor.

‘Calls for law reform after girl sold for sex’ (ABC News, 29 September 2010)

The case involved the girl whose mother and a man named Gary Devine advertised her in the local paper as being an 18-year-old prostitute.

They have been jailed for 10 years for their crimes.

More than 100 people raped the girl in Hobart last year but the Director of Public Prosecutions has told police he does not have enough admissible evidence to take all of the men to court.

Convicting the two adult guardians is straight forward.  But there are also more than 100 people who could be convicted of statutory rape of this under-aged girl.  Convicting them has proven to be a lot harder.  This is because many of them proclaimed ignorance of the girl’s actual age and the prosecution has found it hard to prove otherwise.  This has lead to calls for legal reform whereby in statutory rape case, the onus would be on the defendants to show that they are ignorant of the victim’s actual age.  Professor Caroline Taylor from Edith Cowan University is one of those who call for reform.

Professor Taylor says in underage sex cases the onus of proof must be identified by the Crown.  This means that in rape cases in which age is an issue, perpetrators can claim ignorance…

“What it means is we have unworkable laws that fail to protect children. We have a legal system that acknowledges that it traumatises children and therefore the loser in every case is children.”

Professor Taylor says the law should be reformed so the onus is on the defendant to prove he or she believed the child was older.

Defamation through algorithm? Google lost libel lawsuit over a search result

This is legal history and future students of law and technology should take note.

‘Defamation by algorithm: Google found guilty of libel through ‘suggest’ search function’ (Sydney Morning Herald, 28 September 2010)

Internet giant Google and its chief executive Eric Schmidt have been convicted of defaming a Frenchman through its “suggest” search function.

The man, who was not identified for legal reasons, sued Google, claiming the words “rapist”, “rape”, “prison” and “satanist” were suggested when his name was typed into the company’s web search portal, a French legal website revealed…

Google argued it was not liable for the defamation, as it used algorithms that reflected the most common terms used in the past with words that were entered, and so did not involve Google making the suggestions itself.

First of all, you should note that the journalist here has confused legal terminologies.  Since this is a civil lawsuit, words like ‘convicted’ should not have been used.  Really, it should be ‘Google has been found liable for defamation’.  A minor point, but perhaps it is helpful that note that even journalists can make simple mistakes more commonly seen among senior legal studies students.

Back to the main point of this blog, which is all about legal history.  A particular Frenchman’s name was unfortunately linked with incriminating words like ‘rape’ and ‘satanists’.  Google claimed that this is the result of their search engine algorithm.  I.e. they never set out to associate his name with those words in the search result.  The French court has ruled in the plaintiff’s favour.  First of all, how did this happen in the first place?

How does Google work?

Google became leader in the search engine market through its patented search engine algorithm.  It is done by clusters of computers checking and ranking search results.  The search engine algorithm does this with no sense of commercial, political or personal bias and the company is not in the business of producing search results that show such biases.  However, there have been exceptions in the past.

In January, Google agreed to take down links to a website that promoted racist views of indigenous Australians.  (Google) took the decision to remove the link from its search engine after an indigenous Australian man took legal action against the company and an official complaint to the Australian Human Rights Commission was filed.

Since the parties to this case reached an out of court settlement, it did not set any legal precedent. In the case of this Frenchman, he actually was found guilty of rape, but he is appealing against the verdict, and in French law that means he is still considered innocent until proven guilty by a court of appeal.  However, this case was already discussed on the online media and chatroom.  Therefore it is no surprise that the plaintiff’s name was associated by Google search engine with words like ‘rapists’.  Despite the fact that the French court found the case in favour of the plaintiff, the damages imposed on Google is not all that substantial.

But a Paris court found this month that the technology company was guilty of the “public slandering of a private individual”.

It ordered Google to pay a symbolic amount of 1 euro ($1.40) in damages and to make sure the offence would not be repeated.

The court also found Google did not show good faith in the matter and ordered it to pay 5000 euros towards the plaintiff’s costs.

5001 euros is of no financial significance to one of the largest companies in the world.  However, it is of legal and operational significance, since this could affect how Google uses its patented technology to produce accurate search results.  Unsurprisingly, Google is appealing this verdict.  The E-commerce world is no doubt watching this case’s development with keen interests.