Lèse-majesté in 2016: Erdoğan’s New Ottoman Empire and the European Press

Shane Bagwell

On April 15, 2016, German Chancellor Angela Merkel authorized the prosecution of comedian Jan Böhmermann under Article 103 of the German Criminal Code, a lèse-majesté law prohibiting “defamation of organs and representatives of foreign states.”[1] The Article is so rarely used and outdated that many jurists were unaware of its very existence until recently. The case now heads to the German judiciary for potential prosecution, though the outcome is hardly certain to any of the parties involved. The Chancellor’s announcement represents the broader situation in Europe, which is facing a refugee crisis, culture clash resulting from thousands of migrants entering the EU, and dwindling influence outside of its borders.

Lèse-majesté is an ancient concept dating back to the Romans, who made it a criminal offense to injure the sovereign power of the Roman people. The concept has shifted in its use over the years, and now includes certain crimes against the government as well. The current German law dates back to 1871, when  Kaiser Wilhelm II expanded the definition to include non-royal heads of state in an effort to secure the country’s ability to conduct diplomatic relations more effectively.

Turkey has been an associate member of the European Union since 1963, has been waiting for membership since 1987. However, numerous concerns about issues ranging from human rights to free speech have blocked their accession in one way or another. Since the outbreak of the Syrian Civil War though, Turkish influence over Europe has increased dramatically. A recent agreement between the EU and Turkey provides for more asylum seekers to remain in Turkey in exchange for EU cash assistance and other concessions (including renewed talks of Turkish accession).

As Europe has grown ever more reliant of Turkey and President Erdoğan for support during the refugee crisis, the Turkish government’s sway over Brussels (and Berlin) has grown drastically. Although Germany was previously one of the leading and most vocal critics of Turkish accession to the EU, Chancellor Merkel’s government has aggressively sought a warming of relations, some would say to the detriment of her own country’s power and prestige. And, with recent German municipal elections strongly favoring a fresh tide of right-wing, anti-immigrant sentiments, she has reason to worry. Not only does the crisis have the power to potentially bring down her government, it could well lead to a collapse of the Union itself. As countries within the Schengen area have closed their borders to prevent the flow of asylum seekers, the cracks within Europe are beginning to show.

Within the last several months, Turkey has arrested scores of journalists and academics critical of the regime. Two journalists from the Turkist newspaper Cumhuriyet were tried for espionage after publishing a video that allegedly showed Turkey’s intelligence agency funneling weapons into Syria.[2] In March, two cartoonists were sentenced to 11 months and 20 days in prison for insulting Erdoğan on the cover of Penguen magazine, on which a cartoon figure of Erdogan is welcomed to the presidential palace by a public servant. Erdoğan tells him, “But this is so dry. We could have at least slaughtered a journalist.”[3] (A prime example of the President’s penchant for irony) The crackdown on journalists and academics syncs up with the Turkish government’s crackdown on Kurds in the southeast of the country, which has been subject to a media blackout, and has been harshly criticized by the free press group Reporters without Borders, whose Turkey page provides a truly damming assessment of free speech within Turkey. [4]

Unable to resist the temptation of lampooning Turkey’s President over his increasingly dictatorial approach to governance, German comedian Jan Böhmermann released a video entitled “Erdowie, Erdowo, Erdoğan.”[5] The video shows footage of Erdogan’s most absurd public moments, intercut with crackdowns on protesters. “Equal rights for women: beaten up equally,” the song goes, as police beat women with batons.[6] Shortly after the video was aired on German television, the German ambassador in Ankara was summoned before the Turkish government to answer for the affront.[7] Within days, Böhmermann was at it again, this time specifically to test the limits of the free speech laws in Germany. The German ambassador was summoned once again, but this time rather than a verbal lashing, it was to receive a formal complaint that was required for prosecution under Article 103. Chancellor Merkel was faced with a tough decision: support the free speech rights of the Germans (indeed all of Europe), but risk the deal that had been hard worked between the EU and Turkey, or bow to Turkish pressure and cede German prestige and power to assure the agreement’s future. Unfortunately, Chancellor Merkel failed to remember that petulant and brutish tyrants such as Erdoğan will only be emboldened by concessions, a lesson which the rest of the world learned dealing with Germany in the 1930’s.

Erdoğan’s response to Böhmermann has been to say, “I’m not some sort of tyrannical leader that is hostile to a free press, and to show it, I’m going to request that a foreign government prosecute a comedian for making fun of me.” The inability to recognize the irony of the situation only stands to bolster the argument that Erdoğan might need a lesson in what a “sense of humor is.” Free speech advocates around the world have lined up behind Böhmermann, not because his crass and offensive poem itself was valuable to the public discourse, but because art sometimes requires a shock to the senses in order to stimulate the discussion which this affair has.[8] The authorization for prosecution by Chancellor Merkel represents Germany’s bowing to the power of the new Ottoman Empire, and an abandonment of the core values which Europe seeks to protect. Perhaps the greatest joke here is that concerns such as these have been the largest impediment to Turkey’s accession to the Union. Now we wait to see who has the last laugh.

Shane Bagwell is a 3L at the University of Baltimore School of Law, and a graduate of West Chester University with a Bachelor of Arts in Political Science. He currently serves as the President of the Military Law Association. His interests are Middle Eastern politics, international conflicts, and the law of land warfare. He is currently a law clerk for the Office of the State’s Attorney for Baltimore City, Economic Crimes Division.

[1]Strafgesetzbuch (StGB) (Penal Code) § 103

[2]‘I’m not at war with press,’ says Turkish President Recep Tayyip Erdogan, CNN, 31 March 2016, http://www.cnn.com/2016/03/31/middleeast/recep-tayyip-erdogan-amanpour-interview/ (last visited 17 April 2016)

[3]Cartoonists convicted for insulting Turkey’s President, Zeynep Bilginsoy and Ivan Watson, CNN, 26 March 2016, http://www.cnn.com/2015/03/26/world/turkey-cartoonists-conviction/ (last visited 17 April 2016)

[4]Reporers Without Borders, Turkey, https://rsf.org/en/turkey (last visited 17 April 2016)

[5]https://www.youtube.com/watch?v=R2e2yHjc_mc

[6]Erdowie Erdowo Erdogan The Video That Made Turkey Mad Enough to Summon the German Ambassador, Foreign Policy Watch, http://foreignpolicy.com/2016/03/29/watch-erdowie-erdowo-erdogan-the-video-that-made-turkey-mad-enough-to-summon-the-german-ambassador/ (last visited 4/15/2016).

[7]Turkey asks Germany to prosecute comedian over Erdoğan poem, The Guardian, 11 April 2016, http://www.theguardian.com/world/2016/apr/11/turkey-germany-prosecute-comedian-jan-bohmermann-erdogan-poem (last visited 17 April 2016)

[8]Künstler solidarisieren sich mit Böhmermann, Die Zeit, 13 April 2016, http://www.zeit.de/kultur/film/2016-04/jan-boehmermann-satire-solidaritaet-prominente-offener-brief (last accessed 17 April 2016) (auf Deutsch) (in German)

 

No Country for Palestinians: The Deportation Paradox

Alison Aminzadeh

Hisham Shaban Galia traveled ten thousand miles to reach the United States, where he sought asylum.[1] Shaban was escaping the violence that plagued his home in the Gaza Strip, facing violence from both Hamas and Israel.[2] His asylum claim was denied because he failed to meet his evidentiary burden of producing documents to support his claim; he had represented himself pro se.[3] For the past sixteen months, Shaban has been held at an immigration detention facility in Arizona.[4] While Immigration and Customs Enforcement (ICE) has determined that Shaban cannot stay in the country, the fact that his home – Palestine – is no longer considered a state poses a problem: how can the U.S. deport someone to a state that, under the eyes of U.S. law, does not exist?[5]  Shaban has since obtained counsel from the non-profit, the Council on American-Islamic relations.[6] His counsel, Liban Yousef, filed a habeas corpus petition for supervised release; if granted, this would allow Shaban to have the opportunity to work.[7] While the petition is still being reviewed, ICE released a “Decision to Continue Detention.”[8] Shaban fears that he will spend his life in the limbo of the detention center, having already spent over five hundred days there.[9] While his case appears unusual, the war-torn Gaza Strip is likely to produce more asylum seekers with similar backgrounds who will be difficult to deport under U.S. law.

Palestine and Israel territory over the past 70 years

The Universal Declaration of Human Rights states in Article 15 that everyone has the right to a nationality.[10] The history of Palestine is an interesting one: formerly seen as a “home for stateless Jews” in 1947, Palestine now finds itself in the reverse position: Israel has attained statehood, and Palestine has lost its status.[11]

There are four requirements for statehood.[12] First, there must be a population; this means that the alleged state must have people there.[13] Second, a state must have territory, meaning it must be based on some land.[14] Third, the state must have some government; in other words, there has to be some entity making the laws.[15] Finally, a state must have the capacity to enter into international relations.[16] This last requirement acts as a less-objective test and a safeguard for when the international community does not want to recognize a state. By not engaging with that would-be state, the international community can reinforce the idea that the entity is not a state.

There are about fifteen million stateless people worldwide, and the number is growing.[17] Based on the estimates provided by the United Nations High Commissioner for Refugees, Palestinians make up one-third of the stateless people worldwide.[18] Vicent Chetail writes that the Refugee laws for Palestinians are very strict.[19] While Shaban entered the U.S. for the legal purpose of requesting asylum, most Palestinian refugees are only able to enter other countries through illegal means.[20] In the United States, there are about 1,087 asylum seekers reported; however, given their lack of rights and access to resources, the number of asylum seekers in the U.S. is likely significantly greater.[21]

Shaban is not the first – nor will he be the last – Palestinian that the U.S. holds for deportation. When ICE was questioned on how Palestinians have been deported in the past, it asserted that it has coordinated with Israel, Egypt, and Jordan.[22] However, Shaban’s deportation officer gave him the option of being deported to Pakistan, Afghanistan, Malaysia, or Iraq.[23] Shaban has never been to any of these countries, and considered that this might be a threat; even so, he said he would go anywhere as long as he was no longer in detention.[24]

In addition to the practical conundrum that follows the attempt to deport a stateless person, there are also considerable legal concerns surrounding the international rights of people like Shaban. Article 31 of the UN Refugee Convention (1951) clearly states that no signatory shall impose penalties on refugees because of their illegal status, given the dire situations these refugees are fleeing.[25] The U.S., however, did not sign the Convention, but did sign the 1967 Protocol.[26] The Protocol appeared to retain the substantive portions of the 1951 Convention, and only removed the temporal and geographic restrictions, which focused mainly on events occurring in Europe.[27] Still, Chetail explained that the international community’s application of this Convention is problematic, as deportation should be used as a last resort and not a deterrent.[28] Shaban’s lawyer also alleges that the detention is unconstitutional, as it violates his client’s right to due process.[29] While statelessness is not a crime – in contrast, it is a mark of vulnerability – Shaban has remained in detention after being deemed inadmissible to the United States.[30]

Campaign to support the release of Hisham and Mounis Hammouda, also in detention

U.S. domestic law is not silent on the issue, either. The facts of Shaban’s case, as well as the cases of those like him, run directly contrary to the spirit of Zadvydas v. Davis.[31] The U.S. Supreme Court heard the facts pertaining to Kestutis Zadvydas’s detention. Zadvydas was born to Lithuanian parents in a German camp for displaced persons.[32] Neither Germany nor Lithuania would accept him upon deportation.[33] He was ordered to be deported due to his criminal record.[34] The removal period for aliens held in custody was ninety days.[35] After the ninety days passed, Zadvydas filed a writ of habeas corpus.[36] Justice Breyer, writing for the majority, expressed concerns over the constitutionality of a statute that would allow indefinite detention, writing that it is inconsistent with the Due Process Clause.[37] If one is to rely on stare decisis, it is evident that U.S. law does not permit holding Palestinians like Shaban indefinitely. Furthermore, during oral arguments, Justice Scalia had asserted that the burden of finding a country to be deported to lies with the petitioner.[38] Even if this is the standard for petitioners to meet, Shaban has already met it by wishing to be deported to his state of Palestine.[39] The conundrum lies in the refusal of the U.S. to recognize Palestine as a state, and its refusal to employ any alternative that would release Palestinian asylum seekers from indefinite detention.

To send a letter to Phoenix ICE Field Director Thomas Giles; ICE Director Sarah Saldaña, ICE Public Advocate Andrew Lorenzen-Strait, visit this website.

Alison Aminzadeh is a third year law student at the University of Baltimore. She is currently a Rule 16 attorney working on the Human Trafficking Project as a part of the Civil Advocacy Clinic. She is also a Senior Staff Editor for the Journal of International Law, and the former President of the Students Supporting the Women’s Law Center. 

[1] John Washington, The US wants to deport this Palestinian – but first it would have to recognize Palestine, The Nation (Mar. 28, 2016), available at http://www.thenation.com/article/can-you-be-deported-if-you-are-stateless/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id., citing Universal Declaration of Human Rights , art. 15, Dec. 10, 1948.

[11] Washington, supra note 1.

[12] Motevideo Convention on the Rights and Duties of States, art. I (Dec. 26, 1933).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Washington, supra note 1.

[18] Id.

[19] Chetail is a professor of International Law at the Graduate Institute of International and Development Studies in Geneva. Id.

[20] Id.

[21]  Id., citing United Nations High Commissioner, Citizens of Nowhere: Solutions for the Stateless in the U.S., Refugees and Open Society Justice Initiative (Dec. 2012), available at http://www.rcusa.org/uploads/pdfs/UNHCR_OSJI_STATELESSNESS_REPORT.pdf.

[22] Washington, supra note 1.

[23] Id.

[24] Id.

[25] Id.

[26] Convention Relating to the Status of Refugees, 606 U.N.T.S. 267 (1951, 1967); States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, UN High Commissioner on for Refugees (last accessed Apr. 10, 2016), available at http://www.unhcr.org/3b73b0d63.html.

[27] Haya Madanat, 1951 Refugee Convention and the 1967 Protocol, Hopes for Women in Education (Nov. 15, 2012), available at https://blog.hopesforwomen.org/2012/11/15/1951-refugee-convention-and-the-1967-protocol-by-haya-madanat/; Convention Relating to the Status of Refugees, supra note 26.

[28] Washington, supra note 1.

[29] Id.

[30] Id.

[31] Id., citing Zadvydas v. Davis, 533 U.S. 678 (2001).

[32] Zadvydas v. Davis, 553 U.S. at 682.

[33] Zadvydas v. Davis, 553 U.S. at 682.

[34] Zadvydas v. Davis, 553 U.S. at 682.

[35] Zadvydas v. Davis, 553 U.S. at 682.

[36] Zadvydas v. Davis, 553 U.S. at 682; 28 USCS § 2241.

[37] Zadvydas v. Davis, 553 U.S. at 690; Washington, supra note 1.

[38] Washington, supra note 1.

[39] Id.

Legitimizing China’s Claim in the South China Sea

John Rizos

Conflict in the South China Sea is an alarming threat to international peace. The current situation between the US and China navies is reminiscent of a newspaper’s reaction to the Gulf of Tonkin Resolution during the Vietnam War. The US is planning to exercise its “freedom to navigation” through a third voyage in the South China Sea[1]. The voyage is said to be an assurance that China is not colonizing any disputed islands and not restricting trade or rights described in international law.

The Pentagon has been tracking Chinese military activity closely[2]. Officials have stated that China has increased spending on and usage of military modernization and has expanded its presence in the South China Sea[3]. US officials and military personnel have stated that such activity, especially in disputed areas, is destabilizing and poses a threat to trade routes in the region. This threat could damage America’s, and its allies’, trade route and competitiveness[4]. To emphasize the importance of the trade route in this region, $5Tr worth of shipping passes through the South China Sea each year[5]. Increased suspicious activity includes the construction of airfields on a man-made island on the Mischief Reef[6], attacks on Filipino fishermen[7], the deployment of anti-ship missiles in the area[8], and the attempted reclaims of Scarborough Shoal near the Philippines[9].

Although the Chinese government has condemned America’s intervention as indicative of a “Cold War” mentality and against modern trends for peace and cooperation, the US government has reassured that it will continue to send vessels to conduct freedom of navigation exercises[10]. It has made clear that it will not usurp to Chinese demands to stop such voyages. The US claims that China’s suspicious activity is against international law as preparations to colonize or annex disputed territories[11]. Maritime law allows for states to include seas up to 12 miles from their coast within their internal boundaries[12]. China claims that the US voyages will violate the 12-mile rule and will directly interfere with Chinese sovereignty[13]. US officials have stated that the navy will go wherever international law allows and any attempt of China to implement an Air Defense Identification Zone (ADIZ) would be ignored[14].

An ADIZ would allow for complete control of the sky over disputed territories, which would require aircrafts to alert the government of their entry/exit. Failure to alert may result in military action. China has implemented an ADIZ over the disputed Japanese Senkaku Islands, but has never exercised it against US aircrafts that constantly ignore it [15]. The US is treaty bound to protect Japan and the Philippines. It will begin operating from five different bases in the Philippines[16]. The bases are strategic in regards to the widespread claims, which include small islands in dispute amongst China, Taiwan, Brunei, Malaysia, Vietnam, and the Philippines. The base locations are significant since they are located in the eastern South China Sea and face all the sovereign states and disputed islands of the region.

According to China, the U.S. violations of state sovereignty are direct challenges to the state’s national interests [17]. China claims control in many of the disputed islands based on “ancient activity.”[18] The US has responded to disputed claims by stating that the voyages are not meant to establish support on any sovereignty’s claim but rather to conduct operations that no unlawful restrictions on international law rights and freedoms exist[19]. Further, the China’s naval spear,[20] Hainan Province, is geo-strategically important. It is located in the South China Sea and it faces the region eastwardly and southwardly. China asserts that it should have authority over these islands and would manage and supervise these territories from the Hainan Base. It would include nearby islands within its 12 mile boundary and close off routes as internal waters. The Hainan base is stocked with nuclear submarines, through which China can and will defend itself [21].

It is understandable for China to view the U.S. voyages as challenges to their assertion of sovereignty. Article 17 of the UN Convention on the Law of the Sea, however, allows foreign ships to navigate “innocently” through another sovereign’s territorial sea. Article 19 of the Convention establishes the criteria of “innocent passage.” Under the criteria, a foreign ship is prohibited from using weapons or any threat of force, collecting state information, spreading propaganda, launching military devices or vehicles, loading or unloading commodities, fishing, polluting, conducting research, interfering with communications, and exercising any other activity that does not have a direct bearing on passage. Because China is arguing that these islands constitute a part of its territory, the waters could be considered part of its territorial sea. Further, China clearly does not buy the fact that the U.S. would not be collecting state information, conducting research, or interfering with its communications.

It is important to note that Article 17 is only applicable to waters within the borders of a sovereign, which would include the 12 mile extension rule of territorial seas from a sovereign’s border. The South China Sea, however is not (currently) part of China’s waters, rather it is open for international navigation. Even if China attempted to create an archipelagos by creating artificial islands or annexing disputed territories in the South China Sea, innocent passage for international navigation would still be allowed under Article 53 of the Convention[24]. China should watch out regarding its reliance on UNCLOS to save them in this fight, however, since Article 60 explicitly states that, “artificial islands…may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.”[25]

However, absent the artificial islands, China might have a case in claiming many of these territories based on a landmark international arbitration case. The 1928 “Las Palmas Case” in the Permanent Court of Arbitration held that in a disputed territory, an inchoate title could not prevail over continuous and peaceful display of authority by another state. Further, it is not necessary that display of sovereignty should go back to a very far distant period. In that case, the Netherlands’ display of authority prevailed in claiming Dutch possessions in the Philippines over the US’ claim on title of discovery[26]. Thus, it might be persuasive for China in showing that the mixture of its “ancient activity” and its continuous intervention in affairs over a territory might suffice as creating the disputed territories proper Chinese claims (in fact, it somewhat mirrors adverse possession on a global scale).

John Rizos is a 2L at the University of Baltimore School of Law. He has an interest in human rights and international criminal law. In addition to being a CICL Fellow, he is the Secretary for Phi Alpha Delta. He graduated with honors from Towson University with a BA in International Studies (2013). He has interned at the Press Office of the Greek Embassy in Washington, D.C. and the International Civil Advocacy Network (ICAN), a non-profit organization advocating for women’s rights in the Middle East.

[1] http://www.reuters.com/article/us-southchinasea-usa-idUSKCN0WZ018

[2] freebeacon.com/national-security/pentagon-concerned-chinese-anti-ship-missile-firing/

[3] http://economictimes.indiatimes.com/news/defence/chinas-activities-in-south-china-sea-may-pose-threat-to-trade-routes-us/articleshow/51612043.cms

[4] Id.

[5] http://sputniknews.com/asia/20160402/1037392985/us-challenges-china-tests-sovereignty-south-china-sea.html

[6] http://www.reuters.com/article/us-southchinasea-usa-idUSKCN0WZ018

[7] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[8] http://freebeacon.com/national-security/pentagon-concerned-chinese-anti-ship-missile-firing/

[9] http://www.morningnewsusa.com/china-war-south-china-sea-hainan-2368508.html

[10] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[11] Id.

[12] http://sputniknews.com/asia/20160402/1037392985/us-challenges-china-tests-sovereignty-south-china-sea.html

[13] Id.

[14] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[15] Id.

[16] Id.

[17] http://sputniknews.com/asia/20160402/1037392985/us-challenges-china-tests-sovereignty-south-china-sea.html

[18] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[19] http://www.reuters.com/article/us-southchinasea-usa-idUSKCN0WZ018

[20] http://www.morningnewsusa.com/china-war-south-china-sea-hainan-2368508.html

[21] Id.

[22] http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf at 30.

[23] Id. at 31.

[24] Id. at 42.

[25] Id. at 45.

[26] http://legal.un.org/riaa/cases/vol_II/829-871.pdf

Christian Kim

As a rat scampers across the deck, the crashing of the waves violently rocks the floor. Lieutenant Mangidia, grabs onto the rusty side rails and hears one of his men heaving last night’s dinner into the ocean. He carefully steps over the cratered deck and pats the crewmember on his back. As Lieutenant Mangidia glances up, he spots the glistening beam of two brand new Chinese ships, coasting around the Sierra Madre like predatory sharks. The other nine members on the ship acknowledge their presence and collectively drone out a sigh of frustration.

The Sierra Madre, from an outsider’s point of view, seems like nothing more than a rusting World War II remnant. To the Philippines, it is much more. In order to assert their claims on the Second Thomas Shoal, the Sierra Madre was deliberately grounded near that area in 1999.[1] The Sierra Madre houses 10 Philippine Marines, who stay on the ship at all times to protect a nearby island.[2] This island, known as the Pagasa Island, has one of the few aircraft landing strips in the South China Sea.[3] It is also home to several hundred citizens of the Philippines and it is the only island in the South China Sea with a permanent population.[4] Even though the crew members of the Sierra Madre face morale issues and the citizens of Pagasa Island are in constant fear of imminent war, they know that their role is vital. The Pagasa Island and the Sierra Madre are two important, yet fragile, frontlines between the Philippine’s claim on the Second Thomas Shoal against China.

Anyone looking at this map can see that the territory China is claiming does not actually belong to China!

There are many island disputes in the Asian region; however, the South China Sea dispute has increased in tension dramatically in the early parts of 2016. This tension comes from both international and regional disputes. Depending on who you ask, the South China Sea can be referred to as the East Sea (Vietnam) or the West Philippine Sea (Philippines).[5] Countries such as China, Philippines, Vietnam, Malaysia, Indonesia, Taiwan, and Brunei have laid claims to some or the entire part of South China Sea.[6] These countries base their claims on historical maps, landmarks, decaying ships (like the Sierra Madre), proximity, UN Conventions, and more.[7] In 1974, China went to war with Vietnam for control over the Paracel Islands, which led to the deaths of over 70 soldiers.[8] Since then, there hasn’t been any major battles fought over the area. Although the South China Sea is home to hundreds of small islands and coral reefs, it has no indigenous people.[9] So, what could possibly be the cause of all this commotion?

One of the biggest advantages of having a legitimate claim to the South China Sea is that the location is strategically important. Not only does the South China Sea link the Pacific and the Indian Ocean, it is also an important shipping channel.[10] More than half of the world’s annual merchant fleet pass through these waters.[11] Countries such as South Korea, Japan, Taiwan and China receive their energy supplies through ships that cross into the South China Sea.[12] The South China Sea is also important for militaristic purposes in that manner as well.

The next big advantage is obvious! The South China Sea is rich in energy reserves, although the amount of energy reserves varies on the expert you ask. One estimate from the US Energy Information Administration is that there is approximately 11 billion barrels of oil and 190 trillion cubic feet of natural gas.[13] Even though the amount of barrel of oils might seem significant, it could only power China’s energy needs at an estimated range of three years.[14] The bigger resource in dispute is the natural gas deposit since it could possibly power China for ten times the previous suggested amount.[15]

The final big advantage of the South China Sea is that 10% of the world’s fishing is conducted in this body of water.[16] Millions of fishermen are employed in this region, but regional disputes have also led to conflict.[17] One of the biggest examples was back in 2012 when the Philippine Navy found a Chinese vessel fishing in the area.[18] The Philippines were trying to stop the illegal fishing when two Chinese surveillance ships blocked the Philippine Navy’s access.[19]

The South China Sea is just one of the few disputes that China is currently dealing with. Other issues such as their claims on Taiwan, Hong Kong, Tibet, Senkaku or Diaoyutai Islands are on China’s agenda. With the international limelight on the South China Sea dispute, a sign of weakness on their claims to the South China Sea might become a slippery slope to the aforementioned claims. The international community has been voicing their concerns over the South China Sea and most of it has been aimed directly at China. At the end of a recent G-7 meeting in Hiroshima, the leaders expressed their concerns and had a “strong opposition to any intimidating, coercive or provocative unilateral actions that could alter the status quo and increase tensions.”[20] Even though China was not explicitly mentioned in this statement, China reacted to it as if addressed to them by stating that the disputed claims in the region were “exaggerated.”[21]

Christian Kim is a 2L at the University of Baltimore School of Law and graduated from the University of Maryland with a Bachelor of Arts in Criminal Justice. He currently serves as the President of the Asian Pacific American Law Student Association as well as the 2L Rep for the Student Bar Association. His interests are East Asian politics, international conflicts, and human rights.  Before Law School, Christian has worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years. He is currently a legal intern at the Hermina Law Group and a law clerk for the Law Office ofHayley Tamburello.

[1] http://www.philstar.com/headlines/2014/04/01/1307550/old-us-ship-home-filipinos-china-standoff

[2] Id.

[3] http://www.rappler.com/nation/93563-feature-pagasa-residents-philippines

[4] Id.

[5] http://english.vietnamnet.vn/fms/special-reports/106862/the-china-philippines-dispute-in-the-east-sea.html

[6] http://www.globalsecurity.org/military/world/war/south-china-sea.htm

[7] http://csis.org/publication/southeast-asia-scott-circle-tumultuous-2016-south-china-sea

[8] http://www.scmp.com/news/asia/article/1409007/vietnam-marks-40th-anniversary-chinas-invasion-paracel-islands

[9] http://aviation-defence-universe.com/south-china-sea-is-it-a-problem-with-no-solution/

[10] http://atimes.com/2016/01/china-and-the-south-china-sea-dispute-the-5-trillion-lie/

[11] Id.

[12] Id.

[13] http://www.abc.net.au/news/2015-08-11/south-china-sea-tensions-deter-oil-exploration/6688988

[14] http://www.ciis.org.cn/english/2015-05/11/content_7894391.htm

[15] Id.

[16] http://www.pbs.org/newshour/updates/5-things-didnt-know-south-china-sea-conflict/

[17] http://www.theguardian.com/world/2012/apr/11/philippines-china-stand-off-south-china-sea

[18] Id.

[19] http://thediplomat.com/2015/11/international-law-is-the-real-threat-to-chinas-south-china-sea-claims/

[20] http://www.bloomberg.com/news/articles/2016-04-11/g-7-raises-east-south-china-sea-disputes-in-hiroshima-statement

[21] http://www.ibtimes.com/g7-foreign-ministers-seek-calm-south-china-sea-2351631

Apple Bobbing, Double-Dipping Corporate Fat-Cats Go Shopping

Esther-Jane Grenness

A corporate fat-cat struts from a court-like room. He totes around not just one, but two cash-laden suitcases. Behind him, one of two arbitrators steps down from the bench. This arbitrator surreptitiously tucks a wad of cash into his pants belt under his official-looking robe. In his other hand, he nonchalantly waves a case file in the air. The other arbitrator leans back in her chair and tents her fingers together; a satisfied smile plays across her lips as she admires her own wad of cash. Her wad is nicely tucked under the file for the case on which she has just ruled. The sound of two gavels striking their respective blocks still rings in the air. Behind the defendant’s bench, a little man stands with a bemused expression. In one hand he holds pennies in his palm.  With the other hand, he has turned inside-out a very empty pocket.

 

Courtesy of Helene Grenness-Atkins (www.heleneatkinsart.com)

How did that corporate fat-cat get two suitcases full of cash? Why are there are two gavels and two case files? And who is that poor little man behind the defendant’s table with empty pockets? This is how investor-State arbitration is viewed by the outside world – with a proverbial corporate fat-cat strutting from a room with suitcases full of cash. The corporate fat-cat represents the foreign investor, and the poor, empty pocketed little man represents the State. The two arbitrators with wads of cash represent corporate bias, and the two case files represent separate investment treaties. Finally, the single court-like room symbolizes that the two cases are based on the same claim, and the sound of the gavels underscores the general finality of arbitral awards.

Such a turn of events can – and did – arise as a result of a fragmented system where there are a multitude of options to pick from when foreign investors wish to sue States. This has led to so many problems that the system is almost at a crisis point. Legitimacy issues and Swiss-cheese-worthy procedural rules abound. These are problems inherent to a fragmented system. With each new treaty, it seems more provisions are added to fix problems in prior treaties. But merely patching the holes in the system with new treaties is not sufficient. There are too many treaties with too many countries involved for a treaty-by-treaty fix.

One of the problems in the current system is known as treaty shopping. This is where a corporation (or individual) picks and chooses among investment treaties to find the one most beneficial to its purposes. A corporation will create subsidiaries or shell corporations in a particular country to gain national status, which is known as mailbox citizenship. Because there are over three thousand investment treaties worldwide, a corporation can easily have access to the benefits from multiple investment treaties for its business in a single country. There are two problems that arise from access to multiple treaties in one country: double-dipping and apple bobbing.

Ronald Lauder, Corporate Fat-Cat

Double-dipping happens when treaty shopping leads to parallel claims where a claimant can have two cases for the same claim under two different treaties. This allows foreign investors to potentially obtain two judgments for the same claim from separate tribunals (i.e. double-dipping in a State’s coffers). This was the result in the infamous Czechoslovakian cases, Lauder v. The Czech Republic and CME Czech Republic B.V. v. The Czech Republic.[1] In this situation, our “real” corporate fat-cat, Ronald Lauder, an American businessman, brought suit in his own right under the U.S.-Czech Republic bilateral investment treaty (BIT). But, like a Cheshire cat stealing cream, Lauder filed an additional suit with virtually the same facts using a Dutch subsidiary of one of his companies.[2] This second suit was brought under the Netherlands-Czech Republic BIT. Lauder won both cases.[3]

Arbitral tribunals utilizing United Nations Commission on International Trade Law (UNCITRAL) procedural rules decided both of these cases. Two separate tribunals using the same dispute settlement rules led to a double payout. Two other sources of rules for such suits against States are the International Centre for the Settlement of Investment Disputes (ICSID) and the Permanent Court of Arbitration (PCA) procedures. The procedural rules under which an arbitral tribunal operates often dictate the outcome.[4] To prevent outcomes such as that in the Czechoslovakian cases, there are safeguards in the EU Commission’s investment court proposal, which is part of the EU-Vietnam BIT,[5] Comprehensive Economic and Trade Agreement (CETA),[6] and the yet-to-be-concluded Transatlantic Trade and Investment Partnership (TTIP).[7] In the TTIP, no case may proceed unless the claimant can show that any pending cases have been dismissed.[8] But these treaties only bind the EU, Vietnam, Canada, and the United States.

Apple bobbing happens when treaty shopping allows a losing foreign investor to sue a State for a second time via a different method (i.e. going for a second bite at the apple). Phillip Morris attempted this strategy in Australia. Australia passed the Tobacco Plain Packaging Act of 2011 in which all tobacco products had to be in brown packaging with public health messages. The packaging could not display company logos. Phillip Morris challenged the prohibition on using its logo in Australia’s domestic courts and lost. Not willing to back down, Phillip Morris created a shell company in Hong Kong and brought another case against Australia on the same claim under the Hong Kong, China-Australia BIT.[9]

Plain Packaging for Cigarettes in Australia

Ultimately, Phillip Morris lost,[10] but this dispute, and others like it, led to a provision nicknamed the tobacco carve-out in the recently concluded Trans-Pacific Partnership (TPP). This provision protects a signatory State’s sovereign right to pass regulations protecting such things as public health.[11] The TTIP and CETA have similar provisions.[12] But this fix only binds the EU, Vietnam, Canada, Australia, Japan, Malaysia, Mexico, Peru, Chile, Brunei, Singapore, New Zealand, and the United States.

Clearly, it’s time to close the store. In both examples of abusive treaty shopping, the fixes were treaty-by-treaty, and they are only binding on a few States. This method is insufficient to address the magnitude of the problem. Much of those old treaties are still on the shelf, ripe for the foreign investor’s picking. With over three thousand investment treaties in existence, it doesn’t take much to fathom the futility of the treaty-by-treaty remedy to a fragmented system. Treaty shopping is just ONE of the problems with the existing system. The case for a single, worldwide investment court is nigh. Sadly, there are no easy ways to implement such a court. With the International Investment Court proposed in the recent EU BITs, we’re a step closer, but some in the industry have been dismissive, calling the investment court proposal “creative” when asked for an opinion.[13] Notwithstanding the critics, I believe we’re turning in the right direction. Unfortunately, whether our destination is on the horizon, over the hill, or on the other side of the mountain is impossible to predict.

Esther-Jane Grenness is an evening student in her third year of studies at the University of Baltimore School of Law. She graduated from the University of Baltimore in 2013 with a Bachelor of Arts in Jurisprudence and obtained her Associate of Arts in General Studies from Howard Community College in 2001. In addition to her studies, Esther has managed projects for almost 10 years in AT&T’s Global Business – Public Sector Solutions group. Esther lives in Columbia, MD, with her teenage daughter. Esther is primarily interested in private international law, specifically related to investment-state dispute settlement.

[1]Andrea K. Bjorklund, “Private Rights and Public International Law: Why Competition Among International Economic Law Tribunals Is Not Working,” 59 Hastings L.J. 241, 258-259.

[2] Id.

[3] http://www.italaw.com/documents/LauderAward.pdf and http://www.italaw.com/sites/default/files/case-documents/ita0180.pdf

[4] Bjorklund, above note 1, 249 – 259 (general discussion of the developments in ICSID tribunals’ interpretation of whether to grant jurisdiction in cases of corporate restructuring to gain access to arbitration for a particular dispute even where the treaty doesn’t explicitly address such an abuse)

[5] EU-Vietnam BIT, Article 24(2), http://trade.ec.europa.eu/doclib/docs/2016/february/tradoc_154224.pdf

[6] CETA, Article 8.24(b), http://trade.ec.europa.eu/doclib/docs/2016/february/tradoc_154224.pdf

[7] TTIP, Section 3, Sub-Section 5, Article 14(1), http://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153807.pdf

[8] Id., Section 3, Sub-Section 5, Article 14(2)

[9] Julien Chase, “The Treaty Shopping Practice: Corporate Structuring and Restructuring to Gain Access to Investment Treaties and Arbitration,” 11 Hastings Bus. L.J. 225, 245-246

[10] http://www.theguardian.com/australia-news/2015/dec/18/australia-wins-international-legal-battle-with-philip-morris-over-plain-packaging

[11] TPP, Article 9.9(d)(ii), https://medium.com/the-trans-pacific-partnership/investment-c76dbd892f3a#.v3c7otd7r

[12] TTIP, Section 2, Article 2(1), and CETA, Section D, Article 8.9(1)

[13] Quip from panel speaker Ko-Yung Tung during the breakout session, Forum Non Concurrence in the Resolution of Investment Treaty Disputes, at the American Society of International Law’s110^th Annual Meeting in Washington, DC, March 31, 2016.

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Turkey’s Breach of the Principle of Non-Refoulement

Yasmine Akkad

Non-refoulement is a fundamental principle in international law that was first laid out in the UN Convention relating to the Status of Refugees in 1954.[i] Article 33(1) of the convention provides that: “no Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”[ii] Recently, Turkey breached this principle of non-refoulement by illegally returning thousands of Syrian refugees to war-torn Syria.[iii]

According to a report conducted by Amnesty International, about 100 Syrians have been sent back to their war-torn country every day since January.[iv] This news comes shortly after Turkey struck a deal with the European Union (aimed at stemming the flow of refugees arriving in Greece), agreeing to accept refugees in return for aid and political concessions.[v] Under the agreement, all “irregular migrants” arriving in Greece from Turkey on 20 March onwards will face being sent back.[vi] The agreement further stipulates that the EU will take in one Syrian (who has made a legitimate request) for each Syrian migrant returned to Turkey.[vii] The process, which is known as “one in, one out,” is meant to discourage illegal migration into Europe.[viii]

Amnesty says this latest report exposes the flaws in the deal between Turkey and the EU.[ix] Critics of the deal say the EU is irresponsibly returning Syrian refugees to an unsafe country, in a desperate effort to seal its borders.[x] In the Amnesty report, John Dalhuisen remarked, “in their desperation to seal their borders, EU leaders have willfully ignored the simplest of facts: Turkey is not a safe country for Syrian refugees and is getting less safe by the day.”[xi]

Turkey’s recent breach of international law is symptomatic of a larger issue. There is no end in sight for Syria’s civil war, and the number of people fleeing Syria will only increase. Since Syria’s civil war began more than five years ago, Turkey has taken in more refugees than any other country worldwide.[xii] Put simply, Turkey is overwhelmed. The country has struggled to accommodate the refugees, who are putting a strain on Turkey’s economy and healthcare system.[xiii] While it is not acceptable for Turkey to return refugees to war-torn Syria, it is also not acceptable for the world to sit idly by as thousands of Syrians flee the ongoing violence and hostility in Syria.

Yasmine Akkad is a third year law student at the University of Baltimore School of Law J.D. Candidate (’16). She holds a Bachelors of Science in Law and American Civilization and a minor in English from Towson University. Her primary interests include international law and international human rights law. In addition to being a CICL Fellow, she competed in the 2014-2015 Jessup International Moot Court Competition, Mid-Atlantic Region, and is an active member of the American Society of International Law.

[i] http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/glossary/refoulement/

[ii] Id.

[iii] http://www.bbc.com/news/world-europe-35941947

[iv] Id.

[v] Id.

[vi] http://www.theguardian.com/world/2016/apr/04/eu-turkey-deal-syrian-refugees-germany-istanbul-hanover

[vii] http://www.bbc.com/news/world-europe-35956836

[viii] http://www.ibtimes.com/syrian-refugees-forced-back-war-zone-turkish-authorities-eu-turkey-agreement-goes-2348127

[ix] Id.

[x] Id.

[xi] Id.

[xii] https://www.mercycorps.org/articles/iraq-jordan-lebanon-syria-turkey/quick-facts-what-you-need-know-about-syria-crisis

[xiii] http://www.ibtimes.com/syrian-refugees-forced-back-war-zone-turkish-authorities-eu-turkey-agreement-goes-2348127