NATURAL DISASTERS, HUMAN RIGHTS AND INTERNATIONAL LEGAL OBLIGATIONS FOR HUMANITARIAN ASSISTANCE

Forecasters warned even before Typhoon Haiyan struck the Philippines that it might be the strongest storm in recorded history. It was 3.5 times more ferocious than Hurricane Katrina — and large enough to stretch from California to New York. The super typhoon made landfall in the eastern Philippines on November 8, 2013. With almost 10 million people affected, it is estimated that over 10,000 people have been killed, and nearly 700,000 displaced persons are taking refuge in some 1, 316 evacuation centers in 9 regions. Approximately, another 260,000 displaced persons are living outside these centers.

On December 26, 2004, an earthquake measuring 9.0 on the Richter scale triggered a powerful tsunami across the Indian Ocean. The tsunami struck northern Sumatra; the west coasts of Thailand, Myanmar, and Sri Lanka; the east coast of India; the Maldives; and northern Africa. The tsunami resulted in the deaths of approximately 240,000 people and displacement of more than one million people.

On October 8, 2005, another earthquake, measuring 7.6 on the Richter scale, struck Northern Pakistan, triggering landslides and hundreds of continuous aftershocks. The earthquake killed approximately 86,000 people, including more than 17,000 children; injured over 100,000 people; and caused destruction to infrastructure and housing, leaving an estimated 500,000 families homeless.

In 2005, Hurricane Katrina killed 1,833 people and caused property damage estimated at $81 billion. Although Hurricane Katrina’s physical impact was confined within U.S. borders, its aftermath attracted global concern because the United States needed and accepted disaster assistance from the international community of States.

Natural disasters resulting from natural phenomena, such as earthquakes, volcanoes, tsunamis, hurricanes, and famines, are a worldwide concern. They have affected nearly two hundred million people per year over the past two decades causing billions of dollars in property damage worldwide. Natural disasters know no geographical boundaries, no country, no region and no politics. They appear to be increasing in number and intensity, and people all over the world have endured their devastating consequences, such as loss of life and livelihoods, damaged infrastructure, and economic costs.

Natural disasters have demonstrated the vital role of the international community in facilitating humanitarian assistance to affected States. However, since there are no international legal obligations on States regarding disaster relief, it could potentially follow that individual Nation-States do not have any legal responsibilities concerning humanitarian assistance for natural disasters.

The lack of international legal obligations pertaining to disaster response is troubling, particularly when international aid agencies are overstretched in responding to crises. In a situation report released on Monday, November 11, the UN Office for the Coordination of Humanitarian Affairs (OCHA) said that the capacity and resources of some agencies are “overstretched” as they are currently responding to two other humanitarian crises in the Philippines: the Central Visayas earthquake and the siege in Zamboanga City.

These past natural disasters have demonstrated the concern among all States for the responsibility to warn about the potential disaster, to react to the devastation, and to rebuild destroyed communities. Given the lack of international legal instruments setting forth the obligations of States regarding natural disasters some would argue that these “obligations” are rooted in customary international law.

In order for something to be considered customary international law, there must be general agreement among States to be bound to the responsibility to act in time of crises. While the international community has generally demonstrated an interest to be bound to the responsibility to provide humanitarian aid, this interest may not rise to the level of a legal duty since state practice of the responsibility to protect victims of natural disasters is likely insufficient and not widespread enough under customary international law standards. Thus, justifying the responsibility to provide assistance under customary international law may be difficult to argue.

Grounding the Nation States’ obligations in this regard on human rights might be more appropriate. Acknowledging the applicability of human rights norms to natural disaster victims would expand the scope of international human rights and reinforce the regime of international human rights law. Recognizing and codifying the relationship between human rights and the difficulties faced by disaster victims would impose on all States a legal responsibility to act in crisis arising from natural disasters.

However, implementing an international human rights instrument for natural disaster victims requires some sort of legal framework detailing its implications. It would also require that such legal framework defines and clarifies the States’ obligations. In effect, the human right in question would be related to the right to shelter, food, life, and health care as they arise in a time of crisis due to natural devastation.

Natural disasters affect the international community regardless of the geographical location where the disaster takes place. Although the international community relies on the individual State’s willingness to help, as well as on UN agencies and other NGO’s to react in time of crises, some argue that the aftermath of recent catastrophic natural disasters demonstrate the need for an international treaty clarifying the responsibilities of all States regarding natural disasters.

The important questions to consider are as follows:

Does the international community of States have a responsibility to provide humanitarian assistance to disaster-affected States?

Should the United Nations be involved in creating legal obligations for States regarding humanitarian aid?

Should these legal obligations be grounded in international human rights law?

Catalonia and The Right of Self-Determination

International Human Rights Law is concerned, above all with the equality and dignity of every human being. It, therefore, sets limits to the collective rights of both majorities and minorities, neither of which can be used to overrule the freedom and equal dignity of the individual.

Asbjórn Eide

On September 27th, 2012, the Catalan Parliament approved the holding of a referendum on Catalonia’s independence from Spain. Regional President Artur Mas has demanded that a referendum on independence be held in 2014; but thus far he has been unable to get the central government’s approval for such a vote. Some have suggested that Catalonia demands its independence under the international law right of self-determination.

The principle of self-determination is prominently embodied in Article I of the Charter of the United Nations. The right to self-determination is the right of a people to determine its own destiny allowing them to choose its own political status, and to determine its own form of economic, cultural and social development. The right to self-determination is also recognized in other international instruments, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

The right to self-determination is indisputably a norm of jus cogens, which are the highest rules of international law and must be strictly obeyed at all times. Additionally, both the International Court of Justice and the Inter-American Commission on Human Rights of the Organization of American States have ruled on cases in a way that supports the view that the principle of self-determination has the legal status of erga omnes. Ergas omnes obligations of a State are owed to the international community as a whole and, thus, may be seen as broader even than jus cogens.

Under present international law, the following four factors are relevant to answering the question of whether a “people” may achieve independence. These factors are: 1) location, 2) the will to exist, 3) denial of “internal” self-determination, and 4) brutal oppression. The fourth concept, brutal oppression, establishes secession as the remedial aspect of self-determination.

Location

The language “all peoples have the right of self-determination” has no territorial limitation, however, most scholars agree that “a people” must exist within a confined and established territory. The ICJ has found that groups found in East Timor, Western Sahara, and Palestine had a right to self-determination as peoples. The concept of location is not exact, yet its importance rests in localizing the will of all peoples concerned.

Will to Exist

“A people” comes into existence when a group asserts its will to exist and becomes aware of its identity based on given political considerations. If the majority of a group remains genuinely passive in safeguarding its identity, the group is not a bearer of the right to self-determination. Under international customary law, leaders of groups claiming self-determination on behalf of the group must actually represent the entire group and not merely factions or parties within the collective.

Denial of Self-Determination

Political rights, in particular the right to participate in elections—to vote and to stand for election—on the basis of universal and equal suffrage; to take part in the Government as well as in the conduct of public affairs at any level; and to have equal access to public service are essential to determine if the group within the larger region is deprived of fundamental rights. For minorities to participate effectively in public affairs, they must have an ability to express their opinions on decisions affecting them. This includes the right to participate substantively in decisions on the regional and national levels. To ensure such participation, states should reserve seats for minorities in decision-making bodies. Political representation without considering minority aspirations in the decision-making processes undermines the concept of self-determination.

Brutal Oppression

Brutal state oppression of its domestic groups confined within state borders results in a clear deprivation of the right to self-determination, and in questioning state’s borders. In the external aspect of self-determination, all peoples have the right to “determine freely their political status and their place in the international community based upon the principle of equal rights.” Minorities must undergo a parallel form of brutal oppression to exemplify characteristics of “a people” with a remedial right to self-determination. Without the total denial of “internal” self-determination, courts will stop short of examining whether a group constitutes “a people.”

Remedial Aspect of Self-Determination — Secession

Secession is the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane. Any claim of right to secede will be interpreted very strictly because if the right to secede were universal, the resulting fragmentation could undermine peace and security, and create several thousand independent states (some say as many as 5,000). However, remedial secession may exist for “peoples” under specific circumstances.

Secession over territorial integrity might be legally permitted under very narrow circumstances such as when a state (1) persistently refuses to grant participatory rights to a religious or racial group, (2) grossly and systematically tramples upon their fundamental rights, (3) denies the possibility of reaching a peaceful settlement within the framework of the state structure, and (4) commits gross fundamental human rights breaches.

Even if it is an option, the right to secession may be unwarranted if the state stops the discrimination and institutes legal remedies. In absence of concrete evidence showing human rights violations, and denial of participation in government rising to the point of calling into question the state’s territorial integrity, alternate modes of self-determination compatible with territorial integrity should be exercised. They may include enhanced local self-government in a demographic area, or union with confirmation of territorial unity.

The Case of Catalonia

To assert a successful claim of self-determination through secession, Catalonia would have to show that it had been the victim of severe current oppression.

The Catalans already have self-determination within the Spanish State. Spain is a democratic country in which Catalans have full and equal rights as Spanish citizens. Catalonia joined the Kingdom of Castile as a partner in Spain over five centuries ago through legitimate means. Although since then Spain has increasingly imposed itself on the administration of Catalonia, and Catalan language and culture have been banned for periods, Catalonia today enjoys autonomy within Spain, under a Constitution that was written by seven respected legal scholars, two of whom were Catalans. Catalan nationalists regularly win elections within Catalonia to govern Catalonia and to represent Catalonia in Madrid.

The current Catalan self-government is founded on the Spanish Constitution of 1978. This Constitution recognizes 17 autonomous regions. Autonomous Catalonia has a constitution of its own and is represented and governed, to a considerable extent, by the Generalitat de Catalunya, the regional “Government of Catalonia,” composed of a Parliament, a President and an Executive Council.

The powers of the Generalitat are exclusive, concurrent and shared. When it comes to exclusive responsibility – for example, culture, development of Catalan Civil Law and tourism – the regional government has both executive and legislative powers. The concurrent powers are those areas of competence in which both the state and the region have jurisdiction. As a rule, the central government establishes the basis for legislation and the Generalitat assumes the further legislative development and execution. Regarding the shared powers, the region can assume the execution of state legislation. The areas of the Generalitat responsibility embrace a wide sector of social life. The most important issues are: regional economic policy; regional planning, building and housing policy; energy and environment; culture and media; education, universities and research; public health and social services; tourism, leisure and sport; police and public order.

Although many Catalans may not be satisfied with the level of autonomy granted to Catalonia under the current constitutional regime, they are able to, and do indeed, affect change through constitutional and democratic means. The United Nations Charter sanctifies existing states except under extreme scenarios; if Catalonia cannot meet these legal standards, Catalan nationalists must find another means to achieve their goal of self-determination independent of the Spanish State.

In 2010, the Spanish Constitutional Court reached a decision regarding Catalonia’s autonomy charter, the Catalan Statute of Autonomy. The verdict came after four years of debate over the limits of Spain’s decentralized method of rule. The Catalan statute dates back to 1979, and a commission of the Catalan Parliament convened to reform it in February 2004. In their decision, the Court rejected 14 of 223 articles in a decision that otherwise approved the statute. In particular, the Court refused to acknowledge Catalonia’s self-recognition as a nation in the legal sense, emphasizing the “indissoluble unity of the Spanish nation.” Spain’s decision allowed Catalans to claim Catalonia as their nation in a historical sense, as the constitution still labeled Catalonia a “nationality,” but denied the attempt to create a legally recognizable nation.

Since the 2010 decision, a powerful nationalist movement has surfaced seeking to confer Catalonia legal nationality. Some argue that Catalonia’s governmental leaders might be utilizing the claim to self-determination as a political tool to distract from their bad management of resources in the region. Others claim that Spain is taking advantage of Catalonia’s resources, which constitute about 1/5 of the Spanish economy and failing to provide appropriate economic support to the region. Regardless of the position one takes on the issue of Catalonia’s independence under international law principles Catalonia does not appear to have a valid claim for self-determination as international law establishes express limitations on the exercise of minority rights and autonomy, amongst which the loyalty to the central government.

However, the question remains: Should an internationally recognized claim of self-determination be absolutely necessary for a region to secede? Can a region demand to be recognized by the international community as an independent country even if it does not meet the requirements for self-determination as of right? Should Spain’s central government do as England with Scotland, and allow for a referendum on the issue of whether Catalonia should become independent from Spain?

INTERNATIONAL LAW, AMERICAN LAW AND THE LEGALITY OF THE US SPYING PROGRAM

Michael Hayden, the former head of the CIA and National Security Agency, said last week that: “The United States does conduct espionage,” and the Fourth Amendment to the Constitution protecting the privacy of American citizens “is not an international treaty.”  On its face this statement is a correct interpretation of law as the Fourth Amendment as well as other Constitutional protections have been held not to extend beyond the borders of the US.

The allegations that have been leveled against the NSA by whistleblower Edward Snowden, outline a vast program of spying on a scale not previously seen. The amount of data collected by the federal agencies involved, if true, is staggering and conducted in an indiscriminate manner in order to mine as much data as possible. It would be naïve to think that the US is alone in spying on its citizens and others, but it would seem that the voracity and abilities employed by the US are unparalleled. Moreover, the US not only spied on its enemies but also seemed willing to conduct widespread data intercepts of its allies, something that is not sitting well in Europe and elsewhere.

As regards its international obligations, the US is a member of the international community and is thus bound by the treaties it enters into as well as customary international law. Although not a treaty, one of the most widely approved international documents is the UN Universal Declaration of Human Rights, to which the US is a signatory. Article 12 specifically states that:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

The information collected from sources such as the internet, emails, social media networks, internet service providers, search engines, etc., belonged to someone and it should be considered private personal data. The US neither asked for permission nor consent to collect the data.

Additionally, as regards spying on diplomatic missions, the US might be afoul of the Vienna Convention on Diplomatic Relations, which at Article 27, states as follows:

The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions…

Finally, the type of spying conducted by the US is likely violative of customary international law as defined in Article 38 of the Statute of the International Court of Justice.  This is generally determined through two primary factors: the general practice of states and what states have accepted as law. A very strong argument can be made that the protection of personal private data is customary international law as virtually every country on earth has some form of data protection law and is widely applied. In this regard, the US is on very shaky legal footing if its spying is as widespread and unfocused as has been reported. For the international community, to have the US government repeat as a mantra that the US has not violated the Fourth Amendment of the US Constitution because its spying did not target US citizens, is not just insufficient, but borderline offensive. Perhaps US citizens will believe that their government is not spying on them, or perhaps they will demand a better explanation and hold their government accountable for what amount to blatant violations of the right to privacy.

Nuclear Testing, International Law and North Korea

A nuclear test can be defined as a nuclear explosion detonated for either military or peaceful purposes. The history of nuclear testing began on 16 July 1945 at a desert test site in New Mexico, when the United States exploded its first atomic bomb. This initial test was the culmination of years of scientific research under the banner of the so-called the “Manhattan Project”.

A few months later, on 6 August 1945 a US B-29 bomber dropped an atomic bomb on the Japanese city of Hiroshima, instantly killing around 80,000 people. Three days later, a second bomb was dropped on Nagasaki, causing the deaths of 40,000 more. In the months following the attack, roughly 100,000 more people died slow, horrendous deaths as a result of radiation poisoning. The dropping of the bombs remains the only nuclear attack in history.

Efforts to Control Nuclear Power

Around the mid-1950s, in the midst of the arms race of the Cold War, the United States and the Soviet Union started conducting high-yield thermonuclear weapon testing in the atmosphere. In 1959, radioactive deposits were found in wheat and milk in the northern United States. As scientists and the public gradually became aware of the dangers of radioactive fallout, they began to raise their voices against nuclear testing, leading to the Partial Nuclear Test-Ban Treaty (PTBT) signed in 1963. Representatives of the United States, the Soviet Union, and Great Britain signed the PTBT, which prohibited the testing of nuclear weapons in outer space, underwater, or in the atmosphere.

In 1968 the Nuclear Non-Proliferation Treaty (NPT) was adopted. The NPT is a worldwide treaty that bans all members except the United Kingdom, China, France, Russia, and the United States from having nuclear weapons and commits those five states to eventually eliminating their atomic arsenals. The 187 states that subscribe to the NPT include every significant nation state with the exception of India, Israel, Pakistan, and North Korea.

The latest international law development in efforts to ban nuclear testing took place in 1996 with the opening for signature of the Comprehensive Nuclear-Test-Ban Treaty (CTBT). The CTBT established a de-facto international norm on nuclear testing, banning all nuclear explosions in all environments, for military or civilian purposes. To date 159 states have signed and ratified the CTBT, including the three nuclear weapon states, France, the United Kingdom and Russia. Another 24 states have signed but not ratified it, including the United States.

The CTBT treaty shall enter into force 180 days after the 44 states listed in Annex 2 of the treaty have ratified it. These “Annex 2 states” are states that participated in the CTBT’s negotiations between 1994 and 1996 and possessed nuclear power reactors or research reactors at that time. As of March 2013, eight Annex 2 states have not ratified the treaty. China, Egypt, Iran, Israel and the United States have signed but not ratified the treaty; and India, North Korea and Pakistan have not signed it. In 1998 India said it would only sign the treaty if the United States presented a schedule for eliminating its nuclear stockpile, a condition the United States rejected.

Threats to Non-Proliferation

In the last few years, uranium enrichment, plutonium separation, and other possible nuclear weapons-related activities have been discovered in Iraq, North Korea, and Iran. Moreover, it appears that North Korea and Iran both obtained enrichment technology from Pakistan, which suggests dangers to the NPT regime from nonparties that are not bound by the treaty’s prohibition against assisting non-nuclear-weapon states in acquiring nuclear weapons.

At the same time, the United States has not complied with some of its own NPT-created obligations. The United States Senate has consistently rejected ratification of the CTBT, which reflects its tendency to downgrade treaties and regimes and to upgrade unilateral efforts, such as the pre-emptive use of force against Iraq, to enforce compliance with nonproliferation. Furthermore, the US has undertaken efforts to create new types of nuclear weapons that might well require new testing. Thus, while pushing other countries to reject the acquisition of nuclear weapons for their defense, the United States seems to be relying ever more heavily on nuclear weapons for its own defense.

North Korea

In the last few weeks, Security Council resolutions have condemned North Korea’s December rocket launch and have tightened the existing punitive sanctions against that country.  North Korea’s first nuclear test took place in October 2006 and a second test took place in May 2009. North Korea has threatened nuclear strikes on the US, formally declared war on the South, and pledged to reopen a nuclear reactor in defiance of UN Security Council resolutions. The latest warning from North Korea was directed to foreign embassies in Pyongyang stating that it cannot guarantee their safety from the threat of conflict after 10 April, and has advised them to consider pulling their staff out of the capital.

Most experts opine that North Korea does not have the capability to launch a nuclear attack. Officials in Washington have dismissed North Korea’s most serious threat of a nuclear strike against the US, as bluster by its leader, Kim Jong-un. The Pentagon assessment is that North Korea has not yet mastered the technology needed to accurately fire a nuclear-armed missile. However, even if the actual risk of a nuclear attack from North Korea is inexistent, the situation at hand poses certain important questions regarding nuclear proliferation:

-Is the US justified in expecting Pakistan, North Korea and India to abide by the Non Proliferation regime while ignoring Israel and China’s continued nuclear capabilities?

-Given that the United States has conducted 1,030 nuclear tests — more than all other nations combined — and continues refusing to destroy its nuclear stockpile,  is it fair to prohibit testing in other countries? Does this double standard perceived by other nations constitute a threat to the NPT regime?

-Is it fair to permit many of North Korea’s neighbors and the United States to test and possess missiles and develop other advanced military hardware but to prohibit North Korea from doing the same?

-Is the international community effective in preventing nuclear proliferation?