- Justiciability of All Human Rights: Scottish Independence as Redress for British Human Rights Abuses
- Universal Subordination to the Rule of Law as a Precondition for the Conceptual Possbility of International Law and the Case for Democratizing the United Nations
- Looking Beyond R2P for an Answer to Inaction in the Security Council
- Criminalizing Land-Grabbing: Arguing for ICC Involvement in the Cambodian Land Concession Crisis
- Human Sex Trafficking: An International Problem with an International Solution Requiring National Implementation
- International Law: Honoring the Letter and Spirit of International Treaties
Vol. 25, Issue 3 (Dec. 2013)
Vol. 25, Issue 2 (Aug. 2013)
Vol. 25, Issue 1 (April 2013)
Vol. 24, Issue 2 (Aug. 2012)
Vol. 24, Issue 1 (April 2012)
Vol. 23, Issue 3 (Dec. 2011)
Vol. 23, Issue 2 (Aug. 2011)
Vol. 23, Issue 1 (April 2011)
Vol. 27.3 (December 2015)
Author: Ann M. Piccard
Citation: 27 Fla. J. Int’l L. 333
On September 18, 2014, an overwhelming number of Scottish residents turned out to vote on one simple question: Should Scotland be an independent country? The deceptively simple yes or no question on the ballot could not begin to reflect the complex underlying issues. If the Independence Referendum had been approved—meaning a “yes” vote, the goal of Independence proponents and of the Scottish National Party (SNP)—every facet of life for the Nation and its citizens could have been affected. The presence of nuclear weapons; membership in the European Union; the very nature and name of the currency used in every transaction every day, no matter how large or small; the availability of jobs, pensions, and health and child care; and always—at the true heart of things— ownership of the North Sea oil rights: everything was on the line and reflected in that yes/no ballot question. The debate leading up to the referendum focused incessantly on politics and economics, but rarely on human rights or on the context of the long, ugly history of England’s domination of Scotland and the centuries of disregard for the human rights of the Scots, which was, and will continue to be, the underlying motive for any talk of Scottish Independence. England has been actively seeking to consume and perhaps obliterate Scotland for hundreds of years, beginning (perhaps) with its systematic genocide of the most indigenous Scots, the Highlanders known as the Picts. Atrocities that took place hundreds of years ago do not make the news today, despite the fact that their consequences are ongoing, current, and never-ending. “Those who cannot remember the past are condemned to repeat it.” The purpose of this Article, therefore, is to draw attention and remembrance to the consequences of England’s hundreds of years of human rights violations, particularly violations of civil, political, social, economic, and cultural rights, in Scotland, and to propose that these human rights violations ought to be addressed rather than suppressed regardless of the outcome of the 2014 referendum.
Author: Jarvos J. Lagman
Citation: 27 Fla. J. Int’l L. 357
The right to individual self-determination is a fundamental human right recognized under international law and codified under Article 21 of the Universal Declaration of Human Rights, which was adopted by the General Assembly of the United Nations in 1948. However, the principle of the sovereign equality of nations gives rise to the presumption of the supremacy of national governments to enforce law within their own political domains and gives such national governments the sole right to determine, in their unmitigated discretion, the structure of their own national political affairs. The conflict in these countervailing policies is problematic, especially in the context of achieving world peace, because, given that international law forms the basis of agreement as to the resolution of disputes between countries, political leaders in countries whose political legitimacy is derived from non-legal, non-democratic sources of political authority are individually vested with sovereign authority without institutional accountability, meaning that such political leaders are not subordinate to the rule of law and are immune from judicial process. At minimum, the conceptual possibility of international law requires the subordination of all people, including political leaders, to the rule of law because “[i]n a rule-of-law state, no one is excluded from the jurisdiction of law, [t]here are no officials who are above the law, and no citizens outside the law.” In the absence of universal subordination to the rule of law, international law is rendered illusory since political leaders who are individually vested with sovereign authority, and who, as a result, are not subordinate to the rule of law, cannot be legally and irrevocably bound by the laws of contract, most notably with regard to compulsory adherence to treaties and other international agreements.
Such political leaders retain the sovereign power to violate international law without legal recourse; both within their own political domains, through sovereign immunity, and outside of their political domains,through the sovereign equality of nations principle. Thus, for international law to be uniformly effective, the essential conflict between the sovereign equality of nations principle, as represented by the vesting of sovereign authority in the persona of individual non-democratically elected political leaders, and the fundamental right to individual self-determination, as expressed through the equal right to take part in democratic elections and the hegemonic recognition of the universal primacy of the rule of law, must be resolved in a manner that harmonizes political systems to adopt democracy and the universal subordination to the rule of law in the ordering of their political affairs, but does so without violating the sovereign equality of nations principle.
The basis of the case for democratizing the United Nations is that transnational elections would operate as an instrument for democratic cultural diffusion through which political systems throughout the world would be harmonized, in the long-run, to adopt democracy and the rule of law as the basis of the authority of government. Because transnational elections to allocate power within the United Nations would not directly change the composition of domestic national governments, the introduction of democratic norms and political practices into nondemocratic countries through the democratization of the United Nations would enable the worldwide diffusion of democratic culture in a manner that would not overtly threaten the sovereign power of existing political leaders nor violate the sovereign equality of nations principle (assuming that achievements in diplomacy would ultimately enable transnational elections to materialize with the unanimous consent of the global community).
This Article is intended to provide a policy framework for encouraging the harmonization of all political systems in the world to adopt the rule of law and democratic principles as the basis for the authority of government. Harmonization in this manner is imperative for two primary reasons: (1) universal subordination to the rule of law is a precondition for the conceptual possibility of international law; and (2) the right to self-determination is a fundamental human right whose suppression is in direct violation of well-established international norms, specifically the Universal Declaration of Human Rights. Through the staging of transnational democratic elections in non-democratic countries, the democratization of the United Nations would catalyze the harmonization of political systems to adopt the rule of law and democratic principles as the basis for the authority of government by utilizing the mechanics of cultural diffusion to install democratic institutional infrastructure in non-democratic countries and expose such non-democratic societies to the rituals of democratic political culture. In the long-run and without directly displacing existing political hegemonies in violation of the sovereign equality of nations principle, cultural diffusion through the democratization of the United Nations would facilitate the harmonization of political systems in a controlled and peaceful manner, as compared to achieving harmonization through coercive mechanisms, such as the use of extra-national military force. Once harmonization is achieved, the conceptual framework for the conduct of international law would be strengthened and the right to self-determination, as based in international law and unencumbered by potential conflict with the arbitrary fiats of individual political leaders who are not subordinate to the rule of law, could be applied in a manner that institutionalizes the formal equality of political opportunity on a global scale and democratizes global policy outcomes.
Author: Chelsea Koester
Citation: 27 Fla. J. Int’l L. 399
Security Council to respond to humanitarian crises is one that has received no shortage of attention. The world has watched as the Security Council has failed to take action to address situations in Kosovo and Rwanda, and more recently in Syria and Ukraine. These failures to act have left the international community scrambling to find alternative ways to respond in the face of international crises.
This note identifies the veto power as the root of the ineffectiveness of the Security Council and examines ways in which this power is used to thwart international action both within and beyond the Security Council. It will then examine a fairly recent response to this inaction, the development of the Responsibility to Protect doctrine, which argues that states have a responsibility to take action in the face of international crises, and evaluate how well poised this doctrine is to respond to this problem.
As an alternate to the Responsibility to Protect doctrine, this note assesses two potential checks on the veto power that are already established in international law. First, the obligatory abstention housed within the U.N. Charter, which limits the ability of a Security Council member to exercise its veto power when it is a party to the dispute being addressed by the Security Council. Second, the Uniting for Peace Resolution, which provides the only possibility of an override of a Security Council veto through General Assembly action. While none of these three instruments provide perfect solution to the longtime problem of the power wielded by the five veto-holding states, I argue that the two options already established within international law, the obligatory abstention and the Uniting for Peace Resolution, are worthy—and even superior—alternatives with which to address this issue and should not be overlooked. At a minimum, they present a useful tool for serving to legitimize actions taken pursuant to the Responsibility to Protect doctrine.
Author: Jessica Embree
Citation: 27 Fla. J. Int’l L. 399
“I saw the rubber bullets and the shields and the sticks. My sons were crying. I never thought this forced eviction would happen. I never believed that they would send in the armed forces to destroy community property. But at the end it happened differently.” These were the words uttered by a Cambodian civilian after 300 police officers dressed in full riot gear, armed with guns and other weapons, escorted 500 demolition workers into Phnom Penh, Cambodia and forcefully evicted 400 families from their homes on January 24, 2009. This forced eviction, as well as many other evictions in Cambodia that have occurred since July 2002, was the result of a massive land concession deal3, also known as landgrabbing.
Land-grabbing has been academically defined as “large-scale, crossborder land deals or transactions” between a State concessioner and a concessionaire regarding the lease or concession of land for various purposes. It is important to note that while a land concession deal may grant exclusive rights to the concessionaire, it does not grant full ownership rights—rather, the land remains the property of the State concessioner. While the roots of land-grabbing in Cambodia date back to French colonial times,7 as of 2000, 770,000 Cambodian people, or 6% of Cambodia’s total population, have been forcefully evicted from their homes to clear land that has been conceded by the Cambodian government; this includes 145,000 people forcefully evicted from their homes in the capital city of Phnom Penh. At least 4,000,000 hectares of land have been confiscated and conceded by the Royal Government of Cambodia (Government), equating to about 10,000,000 acres and 22% of Cambodia’s total land area. In the past few years, many land concessions have been contracted to both domestic and foreign private companies for large-scale agriculture, mining, and infrastructure, among other things.
In some instances, Cambodia’s ruling elite teamed up with foreign investors from Thailand, China, and Vietnam to create sugar or rubber plantations, as well as logging operations. In many instances, armed Cambodian police and military officials have been deployed to protect the interests of concessionaires by clearing the land of Cambodian civilians; in an increasing number of incidents, the armed state personnel have fired weapons in their confrontations against protesting civilians who defiantly oppose the taking of their land. Notably, even civilian deaths have been reported as a result of the Government’s excessive use of force. Those who survive after eviction face dismal conditions in resettlement camps that are ripe with disease and food insecurity. In addition to their land and housing rights being violated, evicted and displaced Cambodians also frequently suffer other human rights violations – including the right to education, health, decent work, and participation in public life. Incidentally, many displaced Cambodians, land activists, and human rights defenders have been criminally charged and imprisoned for their peaceful protests and involvement in land concession disputes.
Notwithstanding recent calls for reform, the Government has continued to grant large land concessions at an increasing and appalling rate; many of the concessions are given from land that is inhabited by indigenous communities, including land that is classified as protected areas and forests. Despite the recent international scrutiny and demand for policy change, there has been and continues to be a lack of transparency in the reporting of land concession deals by the Government. In response to the widespread land-grabbing in Cambodia and its adverse effects on human rights, a “group of individual and independent Cambodian victims,” through the help of an international lawyer, have filed a Communication before the International Criminal Court (ICC) in an effort to have the Office of the Prosecutor (OTP) initiate an investigation. Garnering the support of over forty civil society organizations from around the world, the Communication alleges that the “Ruling Elite” has committed a widespread and systematic attack against Cambodian civilians that amounts to the following crimes against humanity: murder, forcible transfer, illegal imprisonment, other inhumane acts, and persecution.
The remainder of this Article will focus exclusively on the allegation of forcible transfer and will argue for ICC involvement in investigating and prosecuting the parties responsible for the land-grabbing crisis in Cambodia. Part II will trace the historical roots and identify the driving forces of land-grabbing. Part III will examine the land ownership rights given by the Cambodian government to individuals and to indigenous communities within Cambodia, the legal framework and procedures surrounding Cambodian land concession deals, and methods of redress for Cambodian land right disputes. Part IV will discuss in part the ICC and how the land concession crisis in Cambodia qualifies as a crime against humanity, but will also argue for ICC involvement in Cambodia.
Author: Melanie Franco
Citation: 27 Fla. J. Int’l L. 421
At ten years old, Moe was raped by her stepfather and sold to his friends. At the age of 14 she ran away from home, fell into drugs, and dropped out of high school. Moe managed to return home at 17, thanks to the help of a relative in the police department. Moe explained that she had met two women who offered her a place to stay but ended up forcing her to sell sex to middle-aged men who would pay in cash and drugs. Moe was a child prostitute in the United States, which is a form of human trafficking under the federal Trafficking Victims Protection Act and under international law. Human trafficking, a form of slavery, is an international crisis affecting 27 million people worldwide. There are several laws in place to combat human trafficking, both on an international scale and within individual nations. Each effort can fall into one of four conceptual and legal frameworks: law enforcement, human rights, women’s and children’s rights, and labor rights. The law enforcement category focuses on trafficking as a violation of criminal laws, the human rights framework focuses on trafficking as a violation of the individual’s established human rights against slavery and exploitation. Labor rights and women’s and children’s rights are specialized categories within human rights. Each of these perspectives is lacking because they only focus on one aspect of the problem. The law enforcement framework “is excessively prosecutionfocused,” with little focus on prevention and is dependent on the “innocent victim.”11 The human rights frameworks focus on international instruments that provide rights to the individual, but lack the ability to do anything to prevent trafficking or to help the victim whose rights have been violated.12 “Each of the [international] instruments suffers from inadequate enforcement and the limited ability of the applicable monitoring bodies to assess or impose meaningful sanctions or to grant relief.”
If the international human rights perspective takes the right approach to combat human trafficking but is lacking the necessary enforcement, then individual nations need to be the ones to implement international laws domestically. Perhaps then we will see a concerted effort and united front to combat human trafficking across nations worldwide. This applies particularly to the United States in the way it fails to comply with international law and yet holds other countries to its own standard. This problem becomes evident in the context of decriminalizing sex trafficking victims. Sex trafficking often looks like prostitution, making it difficult to decipher between victims and willing participants. When it comes to children under the age of 18, there is consensus on the international and
domestic level that the participants will automatically be treated as victims. But adults over the age of 18 do not have that same luxury.
International law is clear in its intention to combat human trafficking and the United States is right behind it in its efforts. However, the United States is continuously falling short, particularly in this area of criminalizing victims. This is partly because states and their legislation are not aligning with federal legislation. This then causes problems on the international level because U.S. laws are not aligning with U.N. laws. The United States continues to patrol other countries’ efforts to combat human trafficking, even though it is itself in violation of international law. What we need is a unified effort and consensus between the United Nations and individual States to agree on how to approach human trafficking and how to end it.
Part I begins with an introduction to human sex trafficking, defining the problem and shining light on some statistics. Part II identifies and analyzes the elements of sex trafficking. Part III examines the international and domestic legislation in place and the differences in how each treats the criminalization of victims. Part IV analyzes the methods to monitor national efforts against human trafficking. Part V proposes the solution of allowing international law to be implemented and enforced nationally in order to effectively fight human trafficking.
Author: Andres R. Cordova
Citation: 27 Fla. J. Int’l L. 441
Petitioner sought to have the Supreme Court equitably toll the one year period for seeking return of his abducted child under Article Twelve of the Hague Convention of International Child Abduction (Convention). Petitioner filed in district court for the immediate return of his child to the United Kingdom. Article Twelve of the Convention mandates the return of an abducted child when a parent files a petition for the child’s return one year or less from the date of abduction. After the one year period, the courts must order the child’s return unless the child has become settled in its new environment. Petitioner contended that the concealment of his child by Respondent was an extraordinary circumstance that prevented him from filing within a year of the child’s abduction. The district court denied Petitioner’s petition because the one year period in Article Twelve had expired, the common-law doctrine of equitable tolling did not apply to the one year period, and the child had become settled in the United States. Petitioner appealed the district court’s decision to the Second Circuit, which affirmed. Petitioner then appealed to the Supreme Court of the United States, which granted certiorari in order to determine whether Article Twelve’s one year period is subject to equitable tolling. HELD, Article Twelve’s one year deadline is not subject to equitable tolling because equitable tolling is contrary to the intent of the parties to the Convention.