The price for Kosovo’s independence from Serbia

There are a large number of areas in a large number of countries where there is a dominant ethnic minority (vis-a-vis the majority nationality in the main part of the country). In Estonia for example North East Estonia, where there are 95% ethnic Russians living in the city of Narva. The same applied for Kosovo and Serbia to a certain degree and the same applies to South Ossetia and Abkhasia in Georgia, Transdnistria in Moldova. This also applies to Scotland and Wales in the UK, parts of the Netherlands, the Basque country in Spain, etc etc.

The current doctrine of international law does not allow for independence for these regions. This principle was breached in the case of Kosovo, and this has also fueled Russian resolve to attack Georgia and try to take South Ossetia and Abkhasia. It is clear that the agressor in Georgia’s case is Russia which has embarked on a development route, which can be described as a neo-Fascism with neo-Soviet crust. However, things should not have been made so easy for them by allowing Kosovo to become independent.

In the EU the role of the Member States is diminishing, there are common values, common principles regarding rule of law, democracy, human rights, etc, which are respected in all of these states. Thus is does not matter much where you live or which nationality you are. The same situation must be strived for in other countries with conflict situations as well. The international law and principles should be strong enough to guarantee a minimal level of protection for all human beings, regardless of where they live.

If we were to accept the example of Kosovo and agree now also to the “right” of South Ossetians to become independent (and merge with Russia), there will be no end for conflicts, both internal and full wars. The world has become a much more dangerous place and it is the job for the community of democratic countries to act decisively to guarantee the peace. Otherwise who knows which country will be next…

Legal study on homophobia in Estonia

Now that my active participation with TEN and EYP is over, I have been focusing my activities on human rights issues. Namely, I am working to establish in the long-term an Estonian Human Rights Centre, the first step has been to create the Human Rights Centre at International University Audentes. 

One of the projects I have undertaken is to give expert advice on human rights as one of the legal experts for the EU’s Fundamental Rights Agency. One of the first tasks for our team was to complete a Study on Homophobia and Discrimination on Grounds of Sexual Orientation – Estonia (download PDF) which was one of the basis for FRA’s comparative report “Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States Part I – Legal Analysis” (full report in PDF, press release).

In the fall, the Human Rights Centre will publish its own report on Human Rights in Estonia in 2007.

“I have said it thrice: What I tell you three times is true.”

The above quote from Lewis Carroll’s Alice in Wonderland was evoked by a judge in the first decision since the US Supreme Court ruled that Guantanamo Bay prisoners should have recourse to civil courts. The court said:

First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents.  We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true.  See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice:  What I tell you three times is true.”).  In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions.  To the contrary, as noted in Part III, many of those assertions are made in identical language, suggesting that later documents may merely be citing earlier ones, and hence that all may ultimately derive from a single source.  And as we have also noted, Parhat has made a credible argument that — at least for some of the assertions — the common source is the Chinese government, which may be less than objective with respect to the Uighurs.  Other assertions in the documents may ultimately rely on interview reports (not provided to the Tribunal) of Uighur detainees, who may have had no first-hand knowledge and whose speculations may have been transformed into certainties in the course of being repeated by report writers. 

Hopefully this is a step further in the direction of closing down the Guanatnamo Bay facility, or at least stop its illegal status of no-law zone. This is the 21st century and democratic countries should no better than to tolerate this abuse of basic principles of the rule of law.

Rule of law makes a comeback in the US?

The Boumediene v. Bush decision of the US Supreme Court is an interesting read for anyone interested in Constitutional law, common law in general, the principle of checks and balances etc. Regarding the history of habeas corpus:

Even so, from an early date it was understood that the King, too, was subject to the law. As the writers said of Magna Carta, “it means this, that the king is and shall be below the law.”

The most important paragraph:

Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. 

The smackdown:

The Government’s formal sovereignty-based test raises troubling separation-of-powers concerns as well. The political history of Guantanamo illustrates the deficiencies of this approach. /—/  And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. 

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.  Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.”  Murphy v. Ramsey, 114 U. S. 15, 44 (1885).  Abstaining from questions involving formal sovereignty and territorial governance is one thing.  To hold the political branches have the power to switch the Constitution on or off at will is quite another.

Bush is not happy:

It was a deeply divided court and I strongly agree with those who dissented. We’ll study this opinion to determine whether or not additional legislation may be appropriate.

Kenneth Roth from the Human Rights Watch praises the judgment:

The Supreme Court decision has stripped Guantanamo of its reason for being: a law-free zone where prisoners can’t challenge their detention. The ruling is not only a landmark victory for justice, it’s a big step toward establishing a smarter, more effective counterterrorism policy.

Barack Obama also issued a statement:

Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.