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.

Beyond Libya's Borders

With the news media focused on the estimated 180,000 migrants who have fled Libya in the past 10 days, it's a good moment to think about the impact of the crisis on migrants beyond Libya's borders.
To start, the unrest has cut off a World Food Programme supply chain used to feed tens of thousands of Darfurian refugees and displaced persons in Chad. Food supplies that had for many years been discharged at Benghazi port in Libya have been re-routed to Port Sudan, at great expense and with questionable outcomes, as aid convoys now must traverse Darfur to reach their intended recipients. The consequences for these refugees are sure to be dire.
The instability in Egypt may also obstruct efforts to protect migrants in that country against human rights abuses. Haaretz reports that the number of African migrants entering Israel through Egypt has dropped precipitously in the wake of the crisis. The concern here, given credible and frequent reports of abuse of African migrants by smugglers in the Sinai, is that many Africans are being held for ransom in the desert. Though the Egyptian government's efforts to crack down on organized crime in the Sinai were insufficient at the best of times, the current political situation has likely resulted in even less attention being paid to the situation of these migrants.
On the development side of the ledger, the loss of migrant worker jobs throughout North Africa will have global repercussions. The widely reported repatriation of many foreign workers in Libya will result in the loss of millions of dollars of remittances. Not only current but also future jobs are at stake; the Philippines and Indonesia have suspended the sending of their national workers to Bahrain, Egypt, Libya, and Yemen. Though this decision is to be applauded, it will come at great cost to families in need of remittance funds.
While there's much to celebrate in North Africa, and much assistance needed for migrants escaping the unrest in Libya, the impact of the crisis on migrants and their families will be felt far beyond Libya's borders.

On February 4

On this day in ...
... 1973, teams of inspectors known as the International Commission of Control and Supervision began monitoring a truce in the U.S.-Vietnam War, pursuant to an agreement reached a few days earlier at peace talks in Paris. The commission included delegates from Hungary, Poland, Canada and Indonesia. Sporadic fighting would continue, ending "with the fall of Saigon in April 1975 and the reunification of the country under communist rule."

(Prior February 4 post is here, here, and here.)

On August 31

On this day in ...
... 1981, Johanna Sunarti Nasution (right) received the Ramon Magsaysay Award for Public Service, an award that, as we've posted, is known colloquially as the Asian Nobel Prize. Nasution was honored for her social welfare work. Born in Surabaya, Indonesia, in 1923, to a Javanese father and Dutch mother, she eventually married a general, but "pursued her work independent of her husband's military career," organizing the Indonesian National Council on Social Welfare, which today includes many nongovernmental organizations, coordinating councils, and social work schools, and works in divers communities within Indonesia.

(Prior August 31 posts are here, here, and here.)

Coral Reefs Dying From Climate Change

Last week, the Wildlife Conservation Society (WCS) reported that coral reefs off the coast of Indonesia are being devastated by unusually warm sea waters. In what is being called "one of the most rapid and destructive coral bleaching events on record" large swaths of coral off the coast of Sumatra have died.Climate change poses a serious threat to coral reefs. Indeed, the Intergovernmental Panel on Climate Change (IPCC) devoted much of the marine ecosystems chapter of its 2007 Report to coral reefs. The International Union for the Conservation of Nature (IUCN) lists many species of coral on its "red list" of threatened species.
Corals reefs are some of the most diverse ecosystems on earth. They occupy only one percent of the world's ocean surface but provide a home for 25 percent of all sea life - including fish that millions of people rely on for food.
Ordinarily coral reefs are brightly colored because coral lives in a symbiotic relationship with algae. Coral bleaching occurs when environmental stresses like excessive heat cause coral to expel the algae with which they normally coexist. When this occurs, the coral reefs turn a dull and lifeless grey. If the bleaching is severe enough, the coral die from a lack of the energy and oxygen that the algae provide.
Not only does the increased water temperature associated with global warming jeopardize coral survival, so does the increased ocean acidification caused by excess atmospheric carbon dioxide being absorbed by the world’s oceans. Reefs protect the coastlines of many countries, especially islands, from storm surges. Thus, coral reef losses put small island states, already threatened by rising sea levels associated with climate change , in further jeopardy.
Aside from their coast-protecting and biodiversity promoting utility, coral reefs are also breathtakingly beautiful. The loss of that beauty compounds the biological and ecological losses. If the current rate of loss continues, we may lose 70% of the world's coral reefs in the near future.
This past May, Indian Ocean water temperatures were significantly warmer than usual (about 7 degrees Fahrenheit above average.) The stress associated with warmer water is killing what had been some of the most biodiverse coral reefs in the world. Indeed, the WCS reports that reefs are up to 80 percent bleached, with more colonies expected to die off in the coming months
The loss of these coral reefs (which incidentally were either unaffected or recovering well from the 2004 Indian Ocean tsunami) is a devastating blow to the region, and the world. Not only is the loss of biodiversity a tragedy in itself, but it comes as a tremendous loss to the regions inhabitants, many of whom are impoverished and dependent on the reef for their food and livelihood.
And, unfortunately, rather than a one-off occurrence, this is a harbinger of things to come. As climate change unfolds, the rate and nature of environmental changes will exceed the ability of coral to adapt. The steady warming and acidification of the world’s oceans will pose a threat to reefs around the world, and to the communities that depend on them.
Dr. Caleb McClennen, WCS-Marine Program Director, described the coral die-off as “another unfortunate reminder that international efforts to curb the causes and effects of climate change must be made if these sensitive ecosystems and the vulnerable human communities around the world that depend on them are to adapt and endure.”

On December 31

On this day in ...
... 1964 (45 years ago today), Indonesian President Sukarno, who in 1945 had led his country to independence from Dutch colonialism (prior post), declared that if Malaysia were to assume a seat on the Security Council, Indonesia would leave the United Nations, just as it had boycotted the Tokyo Olympic Games earlier in the year. According to The New York Times, The source of Sukarno's complaint was the 1963 formation of the Malaysian federation (prior post):

The Indonesian leader charged that Malaysia was formed from the former British territories of Malaya, Singapore, and the Borneo states of Sarawak and Sabah (North Borneo) against the will of the people in order to maintain British influence in Southeast Asia.

Months later Sukarno made good on the threat and withdrew his country from the United Nations; Indonesia did not rejoin until 1966.

(Prior December 31 posts are here and 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.)

A Luta Continua! The struggle for gender justice in East Timor 10 years after the independence ballot

(My thanks to IntLawGrrls for the opportunity to contribution this guest post)

One of the bravest but least known acts during the East Timorese resistance to Indonesian occupation occurred in November 1998, when over 20 Timorese women told their stories of surviving sexual violence to crowds of hundreds at a public meeting in Dili. The stories were collated into a 1999 book called Buibere, which means ‘woman’ in Mumbai, the second most common Timorese language after Tetum. It was written only in English, published in Australia, and intended as an advocacy document for the international community. The persecution, as described first-hand in these collected testimonies, was intense, and included rape, torture and other inhumane acts.
Today marks the tenth anniversary of the popular consultation held in Indonesian-occupied East Timor on 30 August 1999. On 4 September 1999, it was announced that 78.5% of the population had voted against East Timor remaining as part of Indonesia, despite intimidation and full knowledge of the likely reprisal. Independence was granted to the territory after 25 years of brutal invasion. The announcement of the ballot result on 4 September 1999 resulted in immediate acts of violence, a scorched earth policy, looting, massive evacuations, and forced deportation of the population. In the months surrounding the 1999 vote, pro-Jakarta militias killed an estimated 1,400 people, burned towns to the ground, destroyed 80% of the territory's infrastructure, and forced or led more than a quarter of a million villagers into Indonesian-ruled West Timor.
In November 2001, in an independent East Timor controlled by a UN mission, the local women’s rights nongovernmental organization, FOKUPERS, released a second version of Buibere, in Tetum, at a public event, with many of the women who contributed stories to the book present. The second edition is intended to formally respect and honour both the contribution of East Timorese women to independence and the high price they paid during the Indonesian occupation.
Some of the problems that continue to face the women of East Timor were graphically outlined by advocate Sister Maria de Lourdes Martins Cruz at the launch:
‘A luta continua!’ she said, and described how the women of East Timor were still second-class citizens in their own land. ‘A luta continua!’ and she described how girls still don’t receive the same educational or employment opportunities as men. ‘A luta continua!’ and she told of domestic violence still rampant, women still serving as slaves in their own homes, women bought and sold like commodities under the tradition of bride price, and men leaders still unwilling to accept East Timorese women as equals. Ovation after ovation shook the hall.
Given the serious nature of the crimes outlined in Buibere, Sister Lourdes’ speech is striking in that in the eyes of those survivors present that day, independence did not necessarily mark the end of violence against women, but rather just a new manifestation of violence and subordination. (credit for 1998 photo by Jude Conway of demonstration in Dili challenging violence against women; the sign says "STOP Murder!")

I contend that Sister Maria was correct in stating that the problems facing Timorese women in the independence period are linked to the problems women faced during the occupation. Recognition and redress under the law for gender-based violence in war is linked to recognition and redress for domestic violence and socio-economic rights in the ‘peace’.
The danger for East Timorese women now is what I term the ‘changing the curtains’ phenomena — that fundamental changes in the sovereignty of the State in the form of independence may mean that the basic conditions of women’s lives, or their potential to claim their legal rights, does not change in any meaningful sense, as described in the call to arms by Sister Lourdes. Despite some important efforts to include women and their experiences in the justice mechanisms established in East Timor since 1999, Timorese women such as Sister Maria may indeed have cause to be disenchanted.
This then raises the crucial question — transitional justice rests on the assumption that there has been a transition from a state of conflict to a state of peace, however uneasy. If women are still experiencing serious levels of domestic violence and economic deprivation, commensurate with their experience of violence during the proclaimed conflict, have they entered a state of transition at all? If we ask the question — transition to what? — then the next logical question is therefore — justice for whom?

(See further: CAVR Final Report Chega!, and Independent women. The story of women’s activism in East Timor, by Irena Cristalis and Catherine Scott.)

On December 23

On this day in ...

... 1948 (60 years ago today), 7 former leaders of Japan were executed for war crimes by hanging at Sugamo prison (left) in Tokyo. The previous month the group, which included Generals Hideki Tojo and Kenji Doihara, had been convicted following a 2-1/2-year trial before the International Military Tribunal for the Far East. (photo credit)

... 1997, economic news was glum amid reports that Moody's Investors Services Inc., "one of the world's largest credit-rating agencies," had "downgraded the sovereign debt of South Korea, Indonesia and Thailand to 'junk' status." The move "seriously impair[ed] the countries' ability to raise the money needed to work through the region's wrenching downturn." Eventually the International Monetary Fund would step in, and economies seemed to be recovering 2 years later. (photo credit)

Peace Prize goes to peacemaker

What a pleasure to see this year's Nobel Peace Prize awarded to a true peacemaker.
The winner is Martti Ahtisaari (right), the former President of Finland (1994-2000), who for years has done the hard work of diplomacy in the world's trouble spots. To name a few: Northern Ireland, where he served on the commission that secured disarmament there; Indonesia, where he negotiated peace between the government and rebels in the country's Aceh province; and, as posted here, Kosovo, which declared its independence earlier this year. At a Peace Prize press conference yesterday, Ahtisaari noted with approval that on the same day 2 states, Macedonia and Montenegro, had just recognized Kosovo 's statehood. (photo credit)
The Nobel Committee's announcement is in this Reuters video newsclip:

On August 30

On this day in ...
... 1943 (65 years ago today), during World War II, in its version of an Anglo-American "Declaration on German Crimes in Poland," the U.S. Department of State detailed allegations that Polish civilians were being killed, displaced, and sent to work camps in Germany, then stated: "The United States Government reaffirms its resolve to punish the instigators and actual perpetrators of these crimes."
... 1999, "the population of East Timor voted overwhelmingly for independence from Indonesia," which had invaded the country 9 days after it declared its independence from Portugal in 1975. The country, officially known as the Democratic Republic of Timor-Leste, occupies the eastern half of an island within the Indonesian archipelago. (map credit)

On August 17

On this day in ...
... 1945, 2 days after Japan's surrender ended World War II, nationalists led by Sukarno declared independence for Indonesia, a former Dutch colony that Japan had occupied. They gathered at Sukarno's "residence in Jakarta, raised the red and white national flag, and sang the new nation's national anthem, Indonesia Raya (Greater Indonesia). The following day a new constitution was promulgated."
... 1720, "Madame Dacier, of whom Voltaire said, 'No woman has ever rendered greater services to literature,'" died at the Louvre. In 1654 she'd been born Anne Lefèvre, in Saumur, 186 miles southwest of Paris. She moved to that capital city at age 18 and published her translation of work by the ancient poet Callimachus; it was well received, launching her career as a translator of classical Greek literature. Mme Dacier (left) is noted for having "introduced ... to a French audience" the poet 7th century poet Sappho of Lesbos.

Alien Tort action update

As I've written, in Sosa v. Alvarez Machain, the Supreme Court did not entirely rule out bringing suits against transnational corporations (TNCs). Nor did it exactly rule them in: it stated that when creating causes of action for violations of international customary human rights norms, judges must consider the international consequences of their actions. And their example of a questionable case was the one then pending before the District Court in New York against numerous TNCs claimed to have participated in or contributed to apartheid in South Africa through their operations there. Following the State Department's recommendation, that court then dismissed those cases. The 2nd Circuit Court of Appeals then reinstated them, remanding for trial on an "aiding and abetting" theory. With the support of the Justice Department, defendants appealed to the Supreme Court, seeking to put an end to the case. But the Court lacked a quorum of six to take the case--four Justices of the Supreme Court have investments in some of the companies involved, so the 2nd Circuit decision stands and the case will go forward.
Meanwhile back in January, Chief Justice John Roberts denied a request by Exxon Mobil to halt evidence gathering in a case brought against it by Indonesian villagers. Exxon then sought an immediate appeal to the D.C. Circuit because the District Court judge had not dismissed the case in its entirety. When the issue of Exxon's right to an immediate appeal came before the Supreme Court earlier this month, Solicitor General Paul D. Clement urged denial: the District Court had accepted that pursuing claims brought under the Alien Tort Statute against Exxon regarding its use of Indonesian military personnel as security guards would cause foreign policy complications with Indonesia, one of the US's allies in the "war on terror." It therefore dismissed them, and dismissed the case against Exxon's Indonesian partner, a company owned by the Indonesian government. All that remains of Exxon Mobil, et al., v. Doe I are state common law tort for wrongful death, battery, arbitrary arrest and detention, etc. (Thanks to Scotusblog for the head's up on these.)
Will these cases cancel each other out? Will they settle, as did Unocal, thereby depriving all concerned of a judgment on corporate liability for violations of human rights (torture or summary execution as opposed to battery or wrongful death)?

The Soft Power of Barack Obama

Despite Tuesday's setback in the polls , this IntLawGrrl, like Diane Amann, still favors Obama for President. Apart from the substantive policy reasons laid out here for choosing Obama, there's the tremendous soft power value of Obama at a time when our nation is in dire need of a boost in world opinion. From Berlin to Jakarta, Obama-mania seems an international phenomenon. For our allies in Europe, as noted particularly by the German media, Obama's message of change inspires hope that America can return to her role as protector of rights and democracy; his candidacy promises the opportunity "to mend fences abroad as well as at home." For allies living in "rogue states", as noted by an Iranian blogger, "Obama's ideas on foreign affairs and Iran make reformists happy . . . peace and dialogue is like poison for a group whose political existence relies on violence and war." Those living in states in crisis, like Kenyans, see in Obama's message of change "hope for how we might be able to move forward out of this situation we are in." In addition to Kenyans and other Africans, Muslim nations may view Obama's election as the entree of an empathetic figure into the White House; indeed, Indonesians already view the Bahasa-speaking Obama as "one of their own." It will be a challenge for Obama to live up to his reputation of being all things to all people, and of course, his election alone won't magically erase the many very serious problems faced by the international community today. But I think there's real power in Obama's inherently global identity, in the ability of a man said to be a distant cousin of both Dick Cheney and Raila Odinga to make our world a smaller and safer place. As Zbigniew Brzezinski points out, Obama's experience of living abroad endows him with real sensitivity to other cultures and "superior intuition on foreign policy", as exemplified by his greater willingness to meet leaders of hostile nations and his early resistance to the war in Iraq. As a mixed-race child of immigrants with a funny name who spent half her childhood living overseas, I am compelled by Obama's promise that, "The day I'm inaugurated, America will look at itself differently, and the world will look at America differently." Now there's an audacious cause for hope, and one that might make Joseph Nye smile.

On December 5, ...

... 1922 (85 years ago today), by appointment of President Warren G. Harding, Lucile Atcherson became the 1st woman U.S. diplomat when she was appointed a secretary in what was then called the Diplomatic Service (today, the Foreign Service). Atcherson (right), who'd received the 3d-highest score on the Service exam, served in France, Haiti, and Switzerland; in 1925, she was assigned as 3d Secretary of the Legation in Berne, capital of the last country. The Ohio native resigned the Service upon marrying in 1927.
... 1957 (50 years ago today), less than a week after escaping a grenade attack and announcing the nationalization of Dutch-owned industries, Indonesian leader Sukarno ordered the expulsion of the 46,000 Dutch citizens remaining in the country, which had been a Dutch colony for 350 years.

On September 20, ...

.... 1973, Carol C. Laise became the 1st woman Assistant Secretary in the U.S. State Department. Appointed Assistant Secretary of State for Public Affairs, she held the post until March 27, 1975, then served as the 1st woman Director General of the Foreign Service (1975-1977). Other government posts included the U.S. Civil Service Commission; State Department international relations officer in Indian and South Asian affairs (1948 to 1956); and U.S. Ambassador to Nepal (1966-1973). In 1991, she died at age 73, having survived her husband, diplomat Ellsworth Bunker.
... 1999, a force of 1,190 soldiers, most from Australia or New Zealand, landed at the airport in the capital city of Dili in a U.N. effort "restore law and order" in East Timor, where militias "are thought to have killed thousands" in the couple of weeks since the electorate voted overwhelmingly for independence from Indonesia, which had invaded in 1975 after Portugal ended its 450-year colonization of the tiny state (flag at left), which occupies half an island.

On July 23, ...

... 2001, Megawati Sukarnoputri (right) became the 1st woman President of Indonesia following the impeachment of her predecessor. Her tenure was uneven, and she lost an election bid in fall 2004. She is the daughter of the country's 1st President, Sukarno, who was overthrown in a bloody coup in 1965, 20 years after leading Indonesia to independence from its colonizer, the Netherlands.
... 1982 (25 years ago today), the International Whaling Commission voted to enact a "pause" on commercial whaling beginning in 1985-1986. Despite controversy on which we've posted, the ban remains in place to this day.