Fortress Asia? The Bali Process Proceeds

Last week,the Fourth Bali Regional Ministerial Conference on People Smuggling, Trafficking in Persons, and Related Transnational Crime brought together representatives from thirty-two Asian and Middle Eastern countries as well as the United Nations High Commissioner for Refugees and the International Organization for Migration. The Bali Process is led by Australia and Indonesia and funded by Australia, the United States, New Zealand and Japan. At the meeting, the Ministers agreed to create an inclusive non-binding regional cooperation framework to "reduce irregular movement through the region."
Created in response to the "large numbers of illegal boat arrivals run by people smuggling operations in the Asia-Pacific region," the Bali Process takes a national security approach to issues of people smuggling. Of the group's nine aims, the first six relate to deterrence of "illegal movements" and people smuggling. The last three are more humanitarian in nature, suggesting protection of trafficking victims over others, increasing opportunities for legal migration, and encouraging the adoption of best practices in "asylum management." This emphasis gives rise to particular concern in Asia, many of whose nations have not signed on to the UN Refugee Convention.
The "illegal boat arrivals" described above number in the thousands in Indonesia, and include asylum seekers and migrants seeking to get to Australia. People smugglers have worked with impunity in Indonesia, as officials often took bribes to overlook their immigration violations. Undoubtedly, this situation was a central reason for the creation of the Bali Process.
It seems that yesterday the Process had an impact; Indonesia's legislature passed a broad new immigration bill that will go into force within 30 days. Though I've not seen the law itself, news articles indicate that it takes a criminalization approach to people smuggling. The new law defines the crime broadly, including anyone who enters the country with undocumented migrants, whether freely or under duress. The punishments for conviction of people-smuggling are harsh; a minimum of 5 and maximum of 15 years in prison and fines of up to nearly $175,000. To address the problem of corruption, the law provides that immigration officials who deliberately neglect standard operating procedures to assist in people smuggling can be criminally prosecuted. These officials may also be imprisoned for failing to flag fake identity documents or visa sponsorships. The law also apparently includes quite restrictive provisions relating to refugees, including limitations on movement and a 10-year maximum stay in Indonesia before deportation.
Though the harms perpetrated in the course of human smuggling are many and great, Indonesia's solution seems misguided. Criminalization of people smuggling should go hand-in-hand with expansion of safe and legal migration routes and strong protections for those subject to smuggling. And if Indonesia's new law is any indication of the approach its other members intend to take, the Bali Process presents significant cause for concern.

Write On! East Asia conference

(Write On! is an occasional item about notable calls for papers)

Papers are beings sought for Dialects and Dialectics: East Asian Dialogues in Law and Society, a 2d annual East Asian Law and Society Conference conference to be held September 30 and October 1, 2011, at Yonsei University in Seoul, Korea. Organizers are the Collaborative Research Network on East Asian Law and Society and the Korean Society for the Sociology of Law. They write:

'Rule of law' is now accepted as the universal language of governance, but it is undeniable that various dialects are spoken in different regions of the world. While efforts are made at the national level to promote a standard form of 'rule-of-law speech,; sub-national dialects persist within each jurisdiction. This is particularly true in Asia, despite increasing pressures toward the global convergence of national legal systems. Genuine convergence, however, can only come about through dialectical relationships among the different legal dialects. A true dialectical relationship, in turn, will be possible only when meaningful dialogues take place among speakers of those different dialects. The organizers hope to explore these plural interactions through a diverse array of panels and paper presentations.

Proposals for papers and panels on this theme -- or on "any topic in connection with law and society in Asia" should be submitted no later than March 15, 2011, via e-mail to eastasialsa2@gmail.com.
Details on submission requirements here.

Go On! Asian pluralism @ UNC

(Go On! is an occasional item on symposia and other events of interest)

Thanks to our reader who alerted us to an upcoming all-day symposium entitled "Pluralism in Asia: Exploring Dynamics of Reflection, Reinforcement and Resistance," to be held on January 14, 2011, at the Kenan Center, University of North Carolina at Chapel Hill.

Delighted to read that the keynote speaker will be my colleague Madhavi Sunder (right), Professor of Law at the University of California, Davis, School of Law (Martin Luther King, Jr. Hall).

Also confirmed are number of panelists, from universities in Hong Kong, Taiwan, and Korea, as well as the United States. Topics they'll discuss include immigration, family law, civil rights, and religion.

The Journal of International Law and Commercial Regulation at the University of North Carolina School of Law will publish conference papers.

Details and registration here.

Write On! Asia-Pacific challenges

(Write On! is an occasional item about notable calls for papers.)

The Chinese (Taiwan) Society of International Law is seeking papers for presentation at Contemporary International Law Issues in the Asia Pacific: Opportunities and Challenges, the International Law Association Asia-Pacific Regional Conference to be held May 29-June 1, 2011, in Taipei, Taiwan.
Proposals from scholars and professionals alike are encouraged, on any topic relating to international law with a focus on the Asia Pacific. Examples listed in the call for papers include:
► Use of Force
► Asia-Pacific Security
► Territorial Disputes
► Teaching and Research of International Law
► Law of the Sea and Fisheries Conservation
► International Criminal Law
► International Protection of Human Rights
► World Trade Organization, Asia-Pacific Economic Cooperation, and the Association of Southeast Asian Nations
► Free Trade Agreements and the Cross-Strait Economic Cooperation Framework Agreement
► United Nations and Regional Organizations
► Enforcement of Arbitral Awards and Court Judgments
Proposals of no more than 300 words, including the author's name and full contact information, should be e-mailed no later than December 20, 2010, to ila@nccu.edu.tw. Questions may be directed to Professor Pasha L. Hsieh of Singapore Management University, a co-organizer of the conference, at pashahsieh@smu.edu.sg.

Asia on our mind

"The Asian Century?"
So asked participants at yesterday's same-named conference (prior post) organized by our colleague Anupam Chander and sponsored by the Law Review at my home institution, the University of California, Davis, School of Law (Martin Luther King, Jr. Hall).
The answers were myriad, and themselves provoked questions. Indeed, participants on the panel that I had the privilege to moderate questioned the title's very premise:

'Where is Asia? When is Asia?'

Teemu Ruskola queried. To this Keith Aoki added, in effect,

'What is Asia?'

The last "American Century" and the "British Century" that preceded it were different from this notion of an "Asian Century," Keith said. Those others concerned a nation-state; this concerns a continent.

I wonder.

It is persons in the West who put forward this notional Asian Century. Who treat "Asia" as a single entity rather than a mass of entities, as an it rather than a them. Who, at times, see its rising economic power, its rising population, its politics, as potential threats.

Is it possible that those earlier centuries, named as they were with state-centric particularity, were constructs of their subject namesakes? Possible that the objects of those other centuries aggregated threats much like some of us now do "Asia"?

From the perspective of those object persons, might the 1800s and 1900s have been, simply, back-to-back Western Centuries?

Even when pondering with particularity, did the object persons of the 20th view it not as the American, but perhaps as the Russo-American, Century?

Was the British Century a construct of Britain? Might objects of that 19th Century -- persons, say, colonized in Portugal-controlled Africa -- have seen it instead as the European Century? Or perhaps as the Colonial Century, as a time defined less by geographic map and more by method of governance?

Perhaps this 21st Century aggregation says less about "Asia" than it does about our mindset -- about how some in the West seem already resigned to an object status.

That resignation may prove premature.

The final panelist, Tom Ginsburg, reminded that other such prognostications have fallen flat; for instance, past predictions that Japan, Egypt, even Sri Lanka or Burma, would win dominance. Tom's own prediction: Asia will not aggregate into a supranational entity. Some of the many countries in that part of the world indeed may attain power. But they will wield it, Tom ventured, in ways that reinforce the old, the 17th Century, model of independent, noninterference-prizing nation-states.

In store in the 2000s may be not so much an Asian Century as -- to borrow Tom's coinage -- an Eastphalian Era.

(Cross-posted at California-Davis Faculty blog)

Go On! "The Asian Century?"

(Go On! is an occasional item on symposia and other events of interest) Next Friday, February 26, the University of California, Davis Law Review will host "The Asian Century?," a conference exploring how the rise of Asia might bolster or hamper efforts to expand human capabilities. Experts will consider economic and human rights issues through the lens of their diverse areas of expertise, including multinational corporations, intellectual property, human rights, gay rights, the status of rural persons, national security law, and constitutional law. Cosponsoring the event is the California International Law Center, where I serve as Fellow.
Session topics include "Human Rights Under Stress," "The Concept of Asia in International Law," "Lost in Translation?." The symposium features a keynote address by Chicago Law Professor Martha Nussbaum (left); among those presenting papers will be 2 of IntLawGrrls' guests/alumnae, Afra Afsharipour and Lisa R. Pruitt.
The event is all day and free; details here.

On December 26

On this day in ...

... 2004 (5 years ago today), an 8.9 earthquake under the Indian Ocean near the northern coast of Indonesia touhed off "[m]assive sea surges" -- an Asian tsunami that left more than 200,000 persons dead in 13 countries, more than half of them in Indonesia alone. (credit for photo of tsunami striking Thai coast) Billions of dollars in aid were contributed; however, the BBC later reported, "rebuilding in many of the stricken areas is slow and thousands of people remain homeless."

(Prior December 26 posts are here and here.)

Guest Blogger: Jennifer Lind

It's IntLawGrrls' great pleasure to welcome Dr. Jennifer Lind (left) as today's guest blogger.
Jennifer's an Assistant Professor in the Department of Government at Dartmouth College in Hanover, New Hampshire, where she teaches International Politics, East Asian Security: Theory and Practice, and The Politics of Memory. The courses correspond to her research interests, which include East Asian international security, Japanese security policy, U.S. foreign and military policy, and historical memory in international relations.
Among her publications is Sorry States: Apologies in International Politics (2008), which she discusses in her guest post below.
Jennifer's worked as a consultant for RAND and for the Office of the Secretary of the U.S. Department of Defense, and also has lived and worked in Japan. She received a Ph.D. in Political Science from the Massachusetts Institute of Technology, a Master’s in Pacific International Affairs from the University of California, San Diego, and a B.A. from the University of California, Berkeley.
Heartfelt welcome!

On the detention of trafficking victims

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post.)

In countries around the world it is common practice for victims of trafficking who have been ‘rescued’ or who have escaped from situations of exploitation to be placed and detained in public or private shelters. The term ‘detention’, as used in this context, refers to a very specific situation in which the individual concerned is unable to leave the facility if and when she or he chooses to. In some cases, shelter detention is a short-term measure that may be prompted by concerns about victim well-being or safety. In the most egregious situations, victims can be effectively imprisoned in such shelters for months, even years.
Our Study, Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, considers the international legal aspects of victim detention in shelters and weighs up the common justifications for such detention from a legal, policy and practical perspective. It is based on both desk research of shelter practices in a number of countries and more direct exposure to shelters through field-based research undertaken principally in South East Asia.
This Study is divided into two parts.

First Part
This part analyzes the international legal framework, and concludes that routine detention of victims or suspected victims of trafficking in public or private shelters violates a number of fundamental principles of international law and is, therefore, to be considered prima facie unlawful.
Failure of the State to act to prevent unlawful victim detention by public or private agencies invokes the international legal responsibility of that State. Victims may be eligible for remedies, including compensation, for this unlawful detention. In certain situations, the State may be able to successfully defend victim detention in shelters on a case-by-case basis with reference to, for example, criminal justice imperatives, public order requirements or victim safety considerations. The internationally accepted principles of necessity, legality, and proportionality should be used to evaluate the validity of any such claim. Application of these principles would most likely only support a claim of lawful detention in relation to a situation where detention is administered as a last resort and in response to credible and specific threats to a victim’s safety.

Second Part
This part considers the practical and strategic implications of the various policy arguments that are advanced in favour of victim detention. It asks:
► Can victims consent to their own detention?
► Is it indeed true that detention provides the only – or even the best chance of delivering much needed support and protection to victims of trafficking?
► Is it reasonable to cite the overwhelming reliance on victim testimony in human trafficking cases as grounds for ensuring these witnesses be prevented from disappearing?
► Should the situation be different for victims who lack legal migration status?
These questions are framed and responded to with particular reference to documented shelter practices in two countries of South East Asia: Cambodia and Thailand.

Conclusion
With only minor caveats, the Study concludes that in addition to their weak legal value, the arguments advanced in favour of victim detention are largely devoid of practical or strategic value.

Write On! Asian intlaw society

(Write On! is an occasional item about notable calls for papers.) The Asian Society of International Law is seeking papers for presentation at its 2d Biennial General Conference in Tokyo, to be held August 1 and 2, 2009, at the University of Tokyo (below right). The symposium subject is International Law in a Multi-polar and Multi-civilizational World -- Asian Perspectives, Challenges and Contributions. Organizers elaborate:

The world of the 21st century is likely to become more multi-polar and multi-civilizational than it was in the 20th century. China and India are expected to become superpowers, rivaling the US. Such a multi-polarization of power will mean that there is a greater mix of cultures and religions in the international society. How will the international legal order transform itself amidst such a shift of power and values in the global community? ... Asia needs to make its own proposals regarding the manner in which international law can support the world of the 21st century and realize the common interests of humankind. Asia must share fair and equitable responsibility for the international legal order, its ideas and systems.

Proposals for papers, panels, or participants, from young professionals or established scholars, academics or practitioners, are welcome. Deadlines range from December 31, 2008, to February 28, 2009, depending on the type of proposal. Details may be found here.

Protect, respect and remedy

Protect. Respect. Remedy.
Such is the framework proposed by John Ruggie, the United Nations' Special Representative on human rights, transnational corporations, and other business enterprises (and Harvard professor). After the Human Rights Commission rejected the Norms on Transnational Corporations that had been adopted by the Sub-commission on Human Rights in 2003, it asked then-Secretary-General Kofi Annan to appoint a Special Representative to identify and clarify standards of corporate responsibility. In addition to examining the effects of stabilization clauses on human rights as Christiana Ochoa has posted, Ruggie has now released a report developing the framework based on 3 basic principles:
► States have a duty to protect against human rights abuses by third parties;
► Corporations have a duty to respect human rights; and
► Victims of violations need more effective access to remedies.
A first step toward implementing the "protect, respect, and remedy" framework will be to address "governance gaps:" transnational corporations (TNCs) have developed more quickly than the legal framework governing them has, and some states are unable to enforce domestic laws against such corporations. The worst allegations of corporate implication in human rights abuses stem from operations in poorer countries either in post-conflict transition or where conflict is ongoing; as well as in countries where the rule of law is weak and corruption prevalent. Beyond that, the report suggests that human rights treaty bodies need to make recommendations to states with regard to their duty to protect their citizens from corporate conduct that violates human rights and that the Organization for Economic Development and Co-operation and Development should update its Guidelines for Multinational Enterprises (2000), which now lag behind many voluntary corporate codes of conduct. But it quite wisely advises against drawing up a laundry list of rights to which corporate liability extends, as corporations' activities effect most internationally recognized human rights.

On September 8, ...

... 2007 (today), by U.N. General Assembly resolution, the world marks International Literacy Day. An estimated 4 billion children, men, and women can read and write, and the U.N.'s Millennium Development Goal #2 is to make that achievement universal. Curl up with a good book -- maybe 1 from IntLawGrrls' Read On! series -- and enjoy.
... 1954, in Manila, diplomats from Australia, Britain, France, New Zealand, Pakistan, the Philippines, Thailand, and the United States concluded both a Pacific Charter and a Southeast Asia Collective Defense Treaty designed to "maintain peace and security" by means of a Southeast Asia Treaty Organization, known as SEATO, which would remain in existence until 1967.

Kudos to Lan Cao

A favored feature at ImmigrationProf blog, "Immigrant of the Day," provides glimpses of individuals who've come to and enriched life in the United States. A recent worthy honoree is Lan Cao (right). International law professor at Marshall-Wythe School of Law at the College of William and Mary in Williamsburg, Virginia, she came to the United States as a teenager, having grown up in wartorn Vietnam. Cao's the author of a host of law review articles in her specialization, economic globalization, ethnicity, and Asia; co-author with Himilce Novas of Everything You Need to Know About Asian American History (rev. ed. 2004); and author of a semi-autobiographical novel, Monkey Bridge (1997).

Am honored to have Professor Cao as a colleague on the Executive Council of the American Society of International Law.

Heartfelt congratulations!

Selective Justice?

South Asia's extraordinary religious and ethnic/linguistic diversity -- from Hindu and Muslim to Jain and Zoroastrian; from Bengali and Punjabi to Tamil and Sinhalese -- can pose serious challenges to democratic stability in the region. In India, the world's largest democracy, this week saw the completion of a landmark trial of nearly 100 (largely Muslim) perpetrators of 1993's deadly bombings in Mumbai. Dawood Ibrahim, a Muslim ganglord, ordered these bombings in response to communal riots. According to a Commission of Inquiry led by former Indian Supreme Court Justice Srikrishna, the Hindu nationalist group Shiv Sena was responsible for organized attacks during these Mumbai riots that killed almost 600 Muslims -- but the (largely Hindu) perpetrators of these crimes have yet to be indicted. As one victim of the riots asks, "There's no justice for us because we are Muslims?" To the south, the Sri Lankan Human Rights Commission reports 186 complaints of disappearances, largely of Tamils and Muslims, in May and June alone. The administration of Sinhalese President Rajapaksa claims that these numbers are exaggerated in order to discredit his government and that many of those reported disappeared have gone abroad or eloped. But Philip Alston, in his capacity as a UN Special Rapporteur, found that the Sri Lankan government failed effectively to investigate most political killings, in part because they lack sufficient linguistic ability and cultural sensitivity to gather information in Tamil and Muslim communities. This selective justice violates core principles of the international human rights regime, beginning with Article 2 of the ICCPR (to which both India and Sri Lanka have acceded), which prohibits discrimination based on language and religion and requires that states provide an effective remedy for all violations of the treaty. Perhaps more importantly, the provision of justice by religion or ethnicity threatens to unravel the tapestry of multicultural India in ways that we have sadly seen in the two and a half decades of devastating conflict in Sri Lanka.

Asian Enigma

Today's puzzler, inspired by the 1st woman President of India:
On New Year's Day 2007, 1 woman served as President in Asia. Choose the country in which she served:
a) Vietnam
b) Sri Lanka
c) Philippines
d) Bangladesh
e) Malaysia
f) South Korea
g) Japan
Answer below.

Sovereign Democracy?

In a couple of earlier posts (here and here), "Grace O'Malley" [IntLawGrrl Diane Marie Amann] and I discussed the fact that “democracy” has many meanings. Judy Dempsey writes in the Herald Tribune that Russia is now openly advocating a repressive political philosophy it calls “sovereign democracy”: subordinating democratic values to national interests. According to this “philosophy”, the foreign supervision Russia is subject to as a member of the Council of Europe (COE) and the Organization for Security and Cooperation in Europe (OSCE) is nothing more than foreign meddling in Russia’s internal affairs. Thus, Russia is currently blocking reforms at the European Court of Human Rights (ECHR) (at right), the court established in Strasbourg, France to hear human rights claims from individuals living in the 47 COE member states. Judges at the Court are seeking reforms to help deal with the 89,000-case backlog (while 90% of ECHR claims are dismissed as inadmissible, they still must be examined individually). Russia joined the court in 1996 and implemented the European Human Rights Convention in 1998. Since then, over 48,790 complaints have been filed against Russia – more than against any other country. Of those, 10,569 were lodged in 2006 alone, when the ECHR found 96 violations. As COE chair last year, Russia suggested the Council shift priorities away from human rights to education, culture, illegal migration, human trafficking and combating terrorism. Russia is also trying to curb election-monitoring activities undertaken by the Office for Democratic Institutions and Human Rights in Vienna. A division of the OSCE founded in 1976, the Office monitored elections in Georgia, Kyrgyzstan and Ukraine in which Russian-backed regimes were toppled by pro-democracy revolutions (below). Despite its criticisms of these organizations, however, Russia is not renouncing membership. Instead, it created the Collective Security Treaty Organization in 2003, which includes Armenia, Belarus, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan. Political cooperation and collective security are the main purposes; interference in member states' internal affairs is strictly forbidden. Russia is also supporting the Shanghai Cooperation Organization. which was founded in 2001 to fight terrorism and cross-border crime and, again, includes Russia and several Central Asian countries. This organization also directly competes with the Office for Democratic Institutions in observing elections. As Dempsey points out, this is a sad turn-around “for a rich and self-confident country that during the 1990s had fought hard to be accepted into Europe's human rights organizations”. While I cannot help but agree, I also cannot help but note that “Guantánamo”: from the camp itself to the Patriot Act, NSA wiretapping, CIA renditions and secret detention camps, abuse and disappearance of Muslim prisoners within the US, and withdrawing from the Optional Protocol to the Vienna Convention on Consular Relations to avoid scrutiny of our application of the death penalty to foreign citizens are all signs of a return to sovereign democracy here at home.