by richard hustad - uio.no · the idea of the nation-state, wherein this one-to-one relationship...

By Richard Hustad

© 2010 All Rights Reserved

Engligh for Lawyers Topics in International Law & Human Rights

P a g e | 2

Contact With any questions regarding this material, or any related issues, you are welcomed and encouraged to contact the instructor:

Richard Hustad, Research Fellow at the Norwegian Centre for Human Rights Office: Cort Adelersgate 30, 3

rd Floor, Room 344

Office Phone: 22 84 20 58 Personal Mobile: 924 38 215 E-mail: [email protected] Website: http://www.humanrights.uio.no/om/ansatte/vitenskapelig/rtmiller.xml Anonymous E-mail Message System:

This Module of Course The Topics in International Law & Human Rights module of the course English for Lawyers is designed to expand knowledge of English terminology in international law. The particular focus is on human rights issues, especially as they relate to the primary English-language jurisdictions that are studied elsewhere in this course (USA and UK). The learning objectives of this module are:

Knowledge – legal terminology within a selection of ’hot topics’ in IL & HR

Language – oral and written expression of legal topics

Confidence – opportunity to publicly present a legal issue The teaching methodology for this module is as follows:

Reading – assignment each week (ca. five pages)

Terminology – lecture/seminar introducing topic and terms (and discussion)

Group Discussion – discuss exercises in small groups

Oral Presentation – present points of law in ’formal’ setting

Written Review – reinforce terminology and practice written expression (optional) The emphasis of this module is on the terminology and use of language rather than the substance of human rights law. This module is not meant to repeat the content of international legal courses taken elsewhere at UiO, nor is it meant as a means of learning the entirety of any human rights topic. Additional elective courses in human rights are offered by the Norwegian Centre for Human Rights and can be found at the following website:

http://www.uio.no/studier/emner/jus/humanrights/in-english.xml

Attendance is taken each week and contributes to eligibility to take the exam and receive course credit. Usually an examination question is based on this module (either on the written or oral exam).

Contents of this Textbook

1. The Subjects of International Law: “State” 2. The Obligations of States: “Peace” 3. The Power of States: “Sovereignty” 4. The Freedom of Expression: “Expression” 5. The Right to Non-discrimination: “Discrimination” 6.

mailto:[email protected]

http://www.humanrights.uio.no/om/ansatte/vitenskapelig/rtmiller.xml

http://www.uio.no/studier/emner/jus/humanrights/in-english.xml


P a g e | 3

TERMINOLOGY LIST

In this chapter, the following terms will be discussed and defined:

State

Nation

Country

Territory

Government

Permanent Population

Defined Territory

Capacity to Enter into Foreign Relations

Recognition


P a g e | 4

READING ASSIGNMENT

"NATIONS" OR "STATES"

AN ATTEMPT AT DEFINITION By Peter Ravn Rasmussen (20 July 2001)

http://www.globalpolicy.org/nations/nation/2001/0720definition.htm (12 January 2008)

Introduction

What is a nation? The concept seems an ill-defined one. Indeed, to the layman's mind, the concept

certainly implies a number of attributes that, to a more stringent definition, were better applied to that

other, slightly less nebulous (but still far from exact) term, the state. These two terms are clearly

related, yet they must with equal clarity be seen to be separate.

To be sure, the two are often used interchangeably, in an indiscriminate fashion (such as the "United

Nations", which is actually an association of states, not of nations). In laymen's minds, the difference

between the two concepts is vague - to such an extent that the slightly old-fashioned term nation-state

is sometimes used.

And in the very concept of nation-state, in fact, we have the root cause of the definitional blurriness

between the component terms. The proliferation of nationalist movements in the 19th century (the

epitome of which may be said to be the Iron Chancellor, Bismarck, and his exhortations to the German

people to "think with their blood") led to a general feeling that states must of necessity be established

on the basis of national identity, of complete correspondence between the territory of the state and the

dwelling-places of a single nation - this despite the fact that there were plenty of successful examples

to the contrary (Switzerland, for one). The idea of the nation-state, wherein this one-to-one

relationship was formalised, became so much a part of the common understanding of these concepts

that it almost replaced the component terms, and caused them to meld into one.

Thus, when we attempt to identify the meanings of the terms, and to understand them as what they are

- two entirely separate, if mutually interacting, concepts - we are handicapped by more than a century

of sloppy thinking, that has blurred the distinction that it is so vital to define.

Because the world of late modernity (or, if you prefer, postmodernity/postindustrialism) is a world

where the concept of "nation" has revived and taken on a new validity as a motivator of human events,

we must make the effort to understand it. By no means is nationalism an entirely negative trait in

human nature - as a source of motivation, it can produce some of the noblest and most selfless

behaviour. Yet, in the 20th century, we have also seen, with absolutely horrifying clarity, that it can as

easily motivate to the most despicable of acts.

In the following, I shall attempt to describe and define the terms nation and state, and to elaborate on

their significance in today's political landscape.

Defining the idea of nation

Humans are tribal animals, with a tendency to arrange themselves in small groups around dominant

males and females - much like a group of monkeys in the trees. The fundamental element of human

http://www.globalpolicy.org/nations/nation/2001/0720definition.htm


P a g e | 5

organisation is a local and tribal group, which, in more advanced societies, forms the basis for a more

elaborate structure of civilised society on top of the tribal base.

The idea of a nation (from the Latin word nation which derives from natus "(of) birth") implies a

common blood relationship. In fact, this relationship is rarely actual - more often, it derives from a

postulated common ancestor. This common ancestor may be an actual historical figure, but most of the

time, he or she is a mythical being.

Tribalism aside, the bonds that bind a group of people into a nation are more complex than mere blood

relationships (real or imagined). This relationship really only holds true at the lowest levels of society

(and even then, local hierarchies related by blood have become rare in the modern world). As civilised

society grows ever more complex, it is often the case that nationality is a function of more complex

factors - a shared heritage or blood relationship being only one of them.

Language is a factor, definitely - yet there are nations that exist quite happily with multiple languages

(of course, for every success story, there is a counterexample of national disintegration along linguistic

lines). Nevertheless, nations with a single dominant language often use this language to define who

they are. This is particularly the case in those situations where the language is very difficult for

outsiders to learn (e.g. Danish, Finnish, Japanese).

Culture, and the artifacts of culture, play a part in defining a nation - ask the Greeks about the

importance of the Elgin marbles, or a Dane about the Golden Horns. Often, cultural artifacts that have

changed hands between national groups become sources of deepfelt national outrage (such as the Elgin

marbles, or the Isted Lion), icons of lasting disaffection between the nations involved.

The proponents of nationalist ideology often lay forth the postulate that their nation is an immutable

and "original" one - that the basic tenets and attributes of their nation are fixed, and have been a part of

the national makeup since before recorded history. For instance, German nationalists hark back to the

defeat of the Roman legions in Teutoburger Forest by the Germanic tribal leader Arminius

("Hermann").

Yet, evidence is incontrovertible that no nations are immutable entities. Paradoxically, if there is a

constant of human society, it is change, and this ensures that a nation of today is different from the

nation of the same name that existed a generation ago. Nations are evolving and changing all the time.

Summing up, some of the attributes of nationhood are:

A common postulated interrelationship - a "blood" bond between members. This blood

relationship may be actual, but more often, it derives from myth.

A shared cultural heritage. This heritage, and particularly the cultural artifacts (and sometimes

also, institutional structures) that it has created, represents the "patrimony" of the nation, and

is often invested with considerable sentimental value, to the extent that attacks on it are

responded to with violent emotion.

Linguistic coherence, in the form of one or more languages identified with the national

identity. The more unique or difficult these languages are, the stronger the emotional

attachment to them, as something that must be defended. In the world of mass

telecommunications and the omnipresence of English as a lingua franca, bitter struggles are

taking place all over the world to protect the national languages (most notably, in Iceland and

France).

A sense of identification by members with the nation. The idea of national affiliation is a

deep-rooted one in the human psyche, and members of a nation suffer a very visceral response

to any threat against it, real or perceived.


P a g e | 6

Looking at the list above, the astute reader will see that it is by no means an exhaustive one - nor are

all the attributes required for nationhood. In particular, one thing is missing that is inextricably

intertwined with the nationalist ideology: territory.

Territory (I maintain) is not a necessary adjunct to nationality, yet in the past few centuries, and

particularly since the 1860s, it has become deeply embedded in the ideological basis of many

nationalist causes. The idea of the "homeland", that quasi-mythical domain which is the inalienable

birthright of the nation, and the venue of much of its history, is really a concept as old as the Old

Testament (if not older). Not until Bismarck, however, did the land claims of a nation become so

important as they are today.

This brings us to that most problematical of concepts, the nation-state. The nationalist movements of

the 19th century and after have created (or at least, evolved) this concept, by tying the nation to the

land. The perceived-to-be-inseparable tie between "Blut und Boden" (Blood and Soil) has caused

numerous bitter wars, where more than one nation laid claim to the same territory - and both regarded

their "rights" to the land with almost religious devotion.

The nation-state, then, embodies the nationalist idea that there should be a complete correspondence

between nations and the states that govern them. The Czechs should have a Czech homeland, with a

sovereign Czech state governing it, and so on.

This might be a laudable principle if it were not contrary to facts - the facts being that there are at least

8000 nationalities (actual or potential) on the face of the Earth, and that their postulated "homelands"

overlap with distressing frequency. Accordingly, the nationalist ideal of a world of nation-states is

unworkable, and potentially the basis for cruelty, persecution, genocide and ethnic cleansing.

Moreover, the nationalist ideal of the state as the embodiment of a single nation is irrelevant to the

nature of the state, as I shall endeavour to show in the following chapter.

The state - an institution without sentiment

Originally, the word state derives from an Italian term, lo stato, coined by Machiavelli to describe the

whole of the social hierarchy that governs and rules a country. Over the centuries, the term has come

to take on a more sophisticated meaning - yet, in many ways, it is as vague a term as nation.

A state, then, may be defined as an institutional structure charged with exercising authority within a

definable jurisdictional purview (which is often territorial in nature).

Often, political theorists have relied on the definition offered by Max Weber: "....ein auf das Mittel der

legitimen (das heisst: als legitim angesehenen) Gewaltsamkeit gestütztes Herrschaftsverhältnis von

Menschen über Menschen" [ "a relation of men dominating men, a relation supported by means of

legitimate (i.e. considered to be legitimate) violence" - Max Weber: Politik als Beruf, 1919 ] The state

is thus the supreme legitimate authority (whatever "legitimate" may be taken to mean, in the particular

context) entrusted with the exercise of violent force over a group of people. Conspicuously absent

from this definition is the concept of territorial authority, yet the legitimacy and jurisdictional

authority of states is tied so intiamtely to this attribute that it cannot be ignored.

Summing up, the following attributes are then the characteristics of a state:

Monopoly on exercise of force.

Legitimacy, as perceived by the governed.

Institutional structures established to handle governmental tasks, including, but not limited to,

the exercise of force.


P a g e | 7

Control over a territory - absolute or partial.

It is possible that a state may exist and function quite well without embodying all of these attributes -

yet it is certain that the more powerful and established states can put checkmarks next to every item on

the list.

Since 1945 (and arguably, since 1920), the world's states have been engaged in active cooperation in

international organisations, effectively with a view to reducing the destabilising effects of nationalist

extremism. The re-emergence of local nationalisms, seen in recent decades, have caused violent

conflicts.

Whither the state, then in the world of re-nascent nationalism? The nationalist ideology would prefer

that every nationality have a state of its own - are we then to see the world splitting up into thousands

of territorial states? The answer, most likely, is no. Yet, the ties between citizens and their states seem

to have lessened somewhat. A personal loyalty to tribal/national/subcultural groups has certainly

called into question some of the authority of the modern state (as evidenced, indirectly, in the West by

mass political movements advocating civil disobedience, and elsewhere, by tribal insurrections). The

destabilising effect of the breakdown of Cold War deadlock may yet produce a world far more

fragmented into states than the present one.

Closing remarks

Over the course of the latter half of the 20th century, the world has experienced a hitherto-

unprecedented growth in economic wealth, and an expansion of mass communication. In the industrial

age, this would have tended to stabilise the national entities - since it would have created a placid and

culturally homogenised situation. However, the effect in the post-industrialist world seems to have

been the opposite.

This curious contradiction may be caused by the fact that, with more than enough wealth at hand, and

with the tools of a new technology giving completely new means for interaction between minorities,

the way has been paved for a resurgence of nationalist thinking.

The wealthy West has inculcated ideals of human rights in its members, and now those ideals have

reached maturity in the form of nations' rights. All over the Western world (and slowly, in the rest of

the world), minority groups are creating a Risorgimento of their own. In North America, the Native

American tribal groups are reclaiming their sovereignties, slowly but with increasing confidence. In

Europe, minority groups long-forgotten and thought to be wholly assimilated are stating their case for

autonomy and/or independence. And, where the situation is not yet mature for peaceful grants of the

rights, the nations are taking their cause to the "court of appeals" that is the battlefield - as witness the

horrors of the former Yugoslavia.

Nations, far from being immutable and unchanging entities, are constantly evolving and changing -

they are "imagined communities", and they are constantly re-imagining themselves. New nations are

eternally coming into being and declining. In our time, we have seen numerous "subcultures", really

artifacts of modern communications technology, come into being - and every one of these had the

potential to evolve into an actual nation.

Two thousand years ago, no one would have imagined that the followers of an obscure religious leader

in Judaea could ever evolve into a nation with a state governing most of the territory around the city of

Rome, and dominating the intellectual life of the rest of Europe - and when the Papal States were at

their highest, no one could have imagined its decline into a small enclave within Rome.

Once again: the constant that governs humanity is change.


P a g e | 8

SUMMARY OF THE LAW

UNITED NATIONS CHARTER (1945)

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in

accordance with the following Principles.

(1) The Organization is based on the principle of the sovereign equality of all its Members.

(2) All Members, in order to ensure to all of them the rights and benefits resulting from

membership, shall fulfill in good faith the obligations assumed by them in accordance with the

present Charter.

(3) All Members shall settle their international disputes by peaceful means in such a manner that

international peace and security, and justice, are not endangered.

(4) All Members shall refrain in their international relations from the threat or use of force against

the territorial integrity or political independence of any state, or in any other manner

inconsistent with the Purposes of the United Nations.

(5) All Members shall give the United Nations every assistance in any action it takes in

accordance with the present Charter, and shall refrain from giving assistance to any state

against which the United Nations is taking preventive or enforcement action.

(6) The Organization shall ensure that states which are not Members of the United Nations act in

accordance with these Principles so far as may be necessary for the maintenance of

international peace and security.

(7) Nothing contained in the present Charter shall authorize the United Nations to intervene in

matters which are essentially within the domestic jurisdiction of any state or shall require the

Members to submit such matters to settlement under the present Charter; but this principle

shall not prejudice the application of enforcement measures under Chapter Vll.


P a g e | 9

THE MONTEVIDEO CONVENTION (1933)

Who, after having exhibited their Full Powers, which were found to be in good and due order, have

agreed upon the following:

ARTICLE 1: The state as a person of international law should possess the following qualifications: a

) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations

with the other states.

ARTICLE 2: The federal state shall constitute a sole person in the eyes of international law.

ARTICLE 3: The political existence of the state is independent of recognition by the other states.

Even before recognition the state has the right to defend its integrity and independence, to provide for

its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its

interests, administer its services, and to define the jurisdiction and competence of its courts. The

exercise of these rights has no other limitation than the exercise of the rights of other states according

to international law.

ARTICLE 4: States are juridically equal, enjoy the same rights, and have equal capacity in their

exercise. The rights of each one do not depend upon the power which it possesses to assure its

exercise, but upon the simple fact of its existence as a person under international law.

ARTICLE 5: The fundamental rights of states are not susceptible of being affected in any manner

whatsoever.

ARTICLE 6: The recognition of a state merely signifies that the state which recognizes it accepts the

personality of the other with all the rights and duties determined by international law. Recognition is

unconditional and irrevocable.

ARTICLE 7: The recognition of a state may be express or tacit. The latter results from any act which

implies the intention of recognizing the new state.

ARTICLE 8: No state has the right to intervene in the internal or external affairs of another.

ARTICLE 9: The jurisdiction of states within the limits of national territory applies to all the

inhabitants. Nationals and foreigners are under the same protection of the law and the national

authorities and the foreigners may not claim rights other or more extensive than those of the nationals.

ARTICLE 10: The primary interest of states is the conservation of peace. Differences of any nature

which arise between them should be settled by recognized pacific methods.

ARTICLE 11: The contracting states definitely establish as the rule of their conduct the precise

obligation not to recognize territorial acquisitions or special advantages which have been obtained by

force whether this consists in the employment of arms, in threatening diplomatic representations, or in

any other effective coercive measure. The territory of a state is inviolable and may not be the object of

military occupation nor of other measures of force imposed by another state directly or indirectly or

for any motive whatever even temporarily.


P a g e | 10

PRACTICAL EXERCISES

PRACTIAL EXERCISE A

Near the coast of the United Kingdom is the contested Principality of Sealand. Based on the following

information, consider whether Sealand is a state in international law, a country, or a nation.

During World War II, the United Kingdom established a

number of ‗sea forts‘ near its coast in order to defend against a

feared German invasion. The sea forts were constructed in

shallow waters by the UK and manned during the course of the

war by UK military personnel. One of these sea forts was built

in the estuary region of the Thames River and named HM Fort

Roughs (generally referred to as Roughs Tower). It was

established seven nautical miles from the UK coastline, well

beyond the then three-nautical-mile limit of territorial

sovereignty.

Fort Roughs was constructed elsewhere, being comprised of a

floating pont oon base with a superstructure of two hollow

towers joined by a deck upon which other structures could be

added. The fort has a total habitable area of 550 square meters.

It was towed from its place of construction to a position above

the Rough Sands sandbar, where its base was intentionally

flooded to allow it to sink to its final resting place on the

sandbar.

During the war, Fort Roughs was occupied by 150-300 Royal

Navy personnel. It was continued to be manned by military

personnel until 1956. During this time, all ohter similar sea

forts were destroyed, but Fort Roughs was not. After the UK

military no longer manned it, there was no British activity at

Fort Roughs, including neither maintenance nor landing.


P a g e | 11

Occupation of Fort Roughs by Roy Bates and the establishment of Sealand

On 2 September 1967, the fort was occupied by Major Paddy Roy Bates, a British citizen. In order to

occupy the fort, Bates forcibly ejected another group who had previously taken up residence. Bates

was a ‗pirate‘ radio broadcaster, an individual who broadcast a radio station without a license to use

the airwaves and without government oversight of the content of radio broadcasts. Bates made the fort

his base for broadcasting his ‗pirate‘ radio station, Radio Essex, which was his primary source of

income.

Soon after seizing control of the fort, Bates proclaimed the island to be an independent state called the

Principality of Sealand. He bestowed upon himself the title of Prince and upon his wife the title of

Princess. Bates, his wife, and their son began permanently living in Sealand in 1967.

The Royal Navy Incident

In 1968, the British Royal Navy vessels entered

what Bates claimed to be his territorial waters.

Bates later claimed that the Royal Navy vessels

had approached Sealand in an attempt to expell

him and take control of the ‗island.‘ The Royal

Navy claimed the vessels were servicing a

navigation buoy in the vicinity near the fort. In

response to what he considered a breach of his

sovereign rights, Bates ordered the Britsh naval

vessels out of his territory. When they did not

comply, Bates claimed the right of self-defense

and fired warning shots at the vessels from the

artillery gun mounted on Sealand (it may have

actually been Michael Bates, the son of Paddy Roy

Bates, who actually fired the gun). The British

vessels immediately withdrew from the area.

UK Court Case

As a result of the Royal Navy incident, criminal charges were levied against Bates in the British court

at Chelmsford, Essex. Bates appeared in court and asserted the defense that the British legal system

lacked jurisdiction in the case since the incident took place outside of British territory. Bates asserted

that the proper jurisdiction was that of Sealand.

In a judgment on 25 November 1968, the court in Essex dismissed the case, ruling that it did not have

subject matter jurisdiction on an act that was committed outside the territorial sovereignty of the

United Kingdom.

Organization of Government & Expansion of Citizenry

On 25 September 1975, the absolute sovereign of Sealand, Roy Bates, proclaimed the Constitution of

the Principality. The constitution enshrined the principle of sovereignty and independence of Sealand

and granted certain inalienable rights to its citizens. The Constitution continued to recognize Bates as

the head of state and government as Prince of Sealand. Also established was a national flag, a national

anthem, currency in the form of silver coins, postage stamps, and passports. Sales of the coins and

stamps became one of the primary exports of Sealand and earning the ‗island‘ the majority of its GNP.


P a g e | 12

Passports were granted to those who had close ties to Sealand or who had served the Principality and

who had sworn allegiance to Sealand and the principles of its Constitution (dual citizenship continued

to be recognized). As a result of the new governmental structures and the easing of immigration

restrictions, a number of individuals became citizens of Sealand (a total of 300 people are citizens, as

of 1999). A number of them lived on the ‗island‘ at some point in time for varying lengths of time,

although all but the Bates family continued to have other residences elsewhere.

‘Civil War’

In August 1978, while Bates was outside of the Principality, the then-duly-appointed Prime Minister

of Sealand, Professor Alexander G. Achenbach, staged a forcible takeover of Sealand (a ‗coup de

etat‘). He did so with the assistance of paid mercenaries from Germany and The Netherlands.

Achenbach declared Bates deposed as Prince of Sealand and that he had established a ‗caretaker

government‘ until permanent political order could be established. Achenbach ordered Bates‘ son,

Michael, detained and he was held prisoner for several days before being released to Bates in The

Netherlands.

Bates then enlisted armed assistance to quash the ‗rebels.‘ In a helicopter assault on Sealand, he retook

control without any casualties. Bates then imprisoned Achenbach and his ‗armed rebels.‘ The

governments of The Netherlands and Germany petitioned the British government for the release of its

citizens, but the United Kingdom disavowed all responsibility in the affair because, as the Essex court

judgment had declared, activities on the ‗island‘ were outside of British jurisdiction. All except

Achenbach, however, were soon released and repatriated to their countries of citizenship. Bates

declared that Sealand was required to release the ‗prisoners of war‘ because the Geneva Conventions

required as much with the cessation of hostilities.

Achenbach, however, was charged with treason against Sealand and ordered topay reparations for the

costs of the ‗war‘ in the amount of US$35,000. Since Achenbach held a German passport in addition

to a Sealand passport, Germany sent a diplomat from its London embassy to Sealand to negotiate the

release of Achenbach. After several weeks of negotiations, Bates relented and released Achenbach to

the custody of the German diplomat. Subsequently, Bates claimed that his contact with German

diplomatic officials was de facto recognition by Germany of the independence of Sealand.


P a g e | 13

He then held the invaders captive, claiming them as prisoners of war. Most participants in the

invasion were repatriated at the cessation of the "war," but Achenbach, a German lawyer who held a

Sealand passport, was charged with treason against Sealand, and was held unless he paid DM 75,000

(more than US$ 35,000)., citing the 1968 court decision. Germany then sent a diplomat from its

London embassy to Roughs Tower to negotiate for Achenbach's release. Roy Bates relented after

Achenbach returned to Germany and established a ‗government in exile,‘ selling for profit

approximately 150,000 ‗counterfeit‘ Sealand passports.

Extension of Territorial Waters

In 1987, the developing law of the sea caused most states to extend their territorial boundaries from

the previous three miles from the coastline to 12 nautical miles from the coastline. At approximately

seven nautical miles off the coast, Sealand is within the 12-mile limit. However, on 30 September

1987, Bates made an ‗official‘ declaration similar to that of many other states extending the territorial

waters of Sealand to 12 nautical miles. The following day, on 1 October, the United Kingdom did the

same. The normal procedure for dividing waters that have overlapping claims within the 12-mile limit

is to place the boundary at the midpoint between the competing claims. The United Kingdom has

never affirmed nor denied any equal division of the territorial waters with Sealand.

The Golden Eye Incident

In 1990, the Royal Maritime Auxiliary vessel Golden Eye entered the 12-mile limit of territorial

waters surrounding Sealand. In a claimed act of self defense of its territorial sovereign, Bates once

again fired warning shots from the artillery cannon. Despite an official complaint being filed by the

crew of the Golden Eye, there were no consequences from this incident, neither in British courts nor

from British political officers.

Another UK Court Ruling

Even after the 1987 extension of territorial boundaries, Bates continued to withhold payments to the

British National Insurance scheme during the time he resides on Sealand (Bates remains a ‗dual

citizen‘ of the UK). Ordinary, one must pay into the scheme at all times that one resides within the

territory of the UK, but are exempt from paying whenever living in a foreign territory. As a result, the

British Department of Health brought an administrative case on the matter to determine if Bates was

considered within the United Kingdom when he was on Sealand.

An administrative ruling by the Social Security Solicitor‘s Branch held that Bates was not required to

pay into the scheme when on Sealand. However, the ruling did not specifically address whether

Sealand was outside the territory of the UK.

Use of Sealand Passports in Hong Kong

In 1999, when mainland China regained possession of Hong Kong from the United Kingdom, it has

been reported that individuals used forged Sealand passports to exit Hong Kong in order to seek

residence or asylum in other states. It was later discovered that the Achenbach had sold thousands of

the passports in Hong Kong for US$1000 each for anyone who wished to use it to ‗escape‘ from

China.

New Leadership

In 1999, Bates turned over all sovereign authority bestowed upon him by the Sealand Constitution to

his son, Michael, whom he appointed by Royal Decree as Prince Regent and Sovereign Pro Tempore.


P a g e | 14

New International Commerce

In 2000, Sealand attained a new source of international commerce with the establishment of the

Internet company HavenCo Limited within its ‗territory.‘ HavenCo leases a majority of the space on

the ‗island‘ within which it has computer servers that offer 100% secure data storage outside any other

jurisdiction. The HavenCo agreement continued until 2006, during which time there was normally one

to three HavenCo employees resident at all times.

Fire Disaster

On 23 June 2006, a fire broke out on the top platform of Sealand due to an electrical failure. At the

time, there was only one person on the ‗island,‘ a HavenCo employee. He attempted to extinguish the

fire, but was unable to do so. A British Royal Air Force rescue helicopter was required to rescue the

individual and transfer him to Ipswich Hospital in the UK. The fire was finally extinguished by a local

fire tug. All damage was repaired by November 2006.

Offer of Sale of 100% of Real Estate

In 2007, 100% of all real property in Sealand was offered for sale through the Spanish estate company

InmoNaranja. Recognizing that a state (and sovereignty) cannot be sold or purchased, the offer of sale

was simply for ‗custodianship‘ of the ‗state‘ and ownership of all real estate within the Principality.

Therefore, as the only ‗landowners‘ on Sealand, the Bates familywere offering their property for sale

while not offering the sovereignty of the ‗island‘ for sale. The reported asking price was € 750 million.

One high-profile potential buyer was the peer-to-peer web site PirateBay, which had hoped to move its

servers to Sealand to avoid restrictive Internet laws in other jurisdictions. According to its website at

the time, it also wished to use Sealand as a base within which to begin a new form of social

arrangement distinct from territorial boundaries and based, instead, on social cohesion.

Athletic Competitions

Through Sealand‘s history, it has participated in a number of athletic events. In 2003, a football

(soccer) team represented Sealand in the FIFI Wildcup, playing matches against Åland Islands,

Northern Cyprus, and Tibet. Also in 2003, Sealand was represented in as a national entry in a number

of marathon events by a dual Sealand-Canadian citizen. In 2006, it had a country team in the World

Mini-golf Competition. In August 2006, the mini-golf team won the Brighton Invitational Competition

and hosted the Sealand Invitational Tournament. Also in 2006, Sealand was represented in the World

Slot Car Racing Derby, finishing in seventh place.


P a g e | 15

PRACTICAL EXERCISE B

Review the information provided in the following pages about the purported Republic of Somaliland.

SOURCE: www.wikipedia.com (footnotes omitted)

History of Somaliland

Somaliland was part of the Ottoman Empire until its collapse early in the 20th

century.

Ottoman Somaliland spanned most of the Horn of Africa. It was divided into French

Somaliland, which is now the independent state of Djibouti, British Somaliland, which now

claims to be the independent state of Somaliland, and Italian Somaliland, which is the

remainder of present-day Somalia.

The British Somaliland protectorate was initially ruled from British India (though later on by

the Foreign Office and Colonial Office, and was to play the role of increasing the British

Empire's control of the vital Bab-el-Mandeb strait which provided security to the Suez Canal

and safety for the Empire's vital naval routes through the Red Sea and the Gulf of Aden.

Shortly after gaining independence from Great Britain as the State of Somaliland on 26 June

1960, Somaliland merged with Italian Somaliland on July 1, 1960 to form the Somali

Republic. The Prime Minister of the State of Somaliland, Ibrahim Egal, became a minister in

the new Somalia. He became Prime Minister in 1967 but a coup deposed him in 1969. The

coup elevated General Muhammed Siad Barre to power. Siad Barre instituted a Marxist

regime, and became a close ally of the Soviet Union.

Although initially enthusiastic about forming a union with Italian Somaliland, the euphoria

quickly changed to disenchantment as many in the north-west of Somalia felt increasingly

marginalized in government and other sectors of society. While the authoritarian government

of Siad Barre was becoming increasingly unpopular with Somalis, nowhere was the regime

more resented than in the north-west.

Following an unsuccessful attempt by Somalia to capture the Ogaden region of eastern

Ethiopia in 1977, Somalis from the north-west (primarily the Issaq clan) living in the United

http://www.wikipedia.com/


P a g e | 16

Kingdom formed the Somali National Movement in 1981. The SNM was one of a growing

number of groups which aimed to topple Siad Barre.

As the 1980s unfolded, the Siad Barre regime became increasingly unstable, and the SNM

expanded its control in the north-west region. Mogadishu responded by instituting draconian

measures in the north-west to suppress the SNM. When these failed, the government

indiscriminately used raids and bombing campaigns to assert control. Nonetheless, by the end

of the 1980s, the SNM controlled virtually all of the north-west, including the major towns of

Hargeisa and Burao. The Siad Barre regime was on the verge of collapse.

The region, like the rest of Somalia, was marred by political instability and differences in

culture, both due to regional feuds and the markedly different societies created by the British

and Italian colonial authorities.

In 1991, after the collapse of the central government in Somalia, the main part of the territory

asserted its independence as the Republic of Somaliland on May 18, 1991. It regarded itself as

the successor state to the briefly independent State of Somaliland, but did not receive any

international diplomatic recognition.

The economic and military infrastructure left behind by Somalia has been largely destroyed

by war. The people of Somaliland had rebelled against the Siad Barre dictatorship in

Mogadishu, which prompted a massive reaction by the government.

The late Abderahman Ahmed Ali Tuur was the first president of Somaliland. Muhammad

Haji Ibrahim Egal was appointed his successor in 1993 by the Grand Conference of National

Reconciliation in Boorama (Borama), which met for four months and led not only to a gradual

improvement in security, but solidified the fledgling state.[6] Egal was re-appointed in 1997,

and remained in power until his death on May 3, 2002. The vice president, Dahir Riyale


P a g e | 17

Kahin, was sworn in as president shortly afterwards, and in 2003 Kahin became the first

Somaliland president to be elected in a free and fair election.

The 2006 War in Somalia between the Islamic Courts Union and the forces of Ethiopia and

Somalia's transitional government has not directly affected Somaliland.

Politics and Government

Somaliland has formed a hybrid system of governance under the Constitution of Somaliland,

combining traditional and western institutions. In a series of inter-clan conferences,

culminating in the Boorama Conference in 1993, a qabil (clan or community) system of

government was constructed, which consisted of an Executive, with a President, Vice

President, and Council of Ministers, a bicameral Legislature, and an independent judiciary.

The traditional Somali council of elders (guurti) was incorporated into the governance

structure and formed the upper house, responsible for selecting a President as well as

managing internal conflicts. Government became in essence a "power-sharing coalition of

Somaliland's main clans", with seats in the Upper and Lower houses proportionally allocated

to clans according to a predetermined formula, although not all clans are satisfied with this

formula of government. In 2002, after several extensions of this interim government,

Somaliland finally made the transition to multi-party democracy, with district council

elections contested by six parties.[7]

Foreign Relations

Somaliland has a border dispute with Puntland. As of July 1, 2007, part of the disputed

territory declared themselves the state of Maakhir. Somaliland has political contacts with the

United Kingdom,[8][9] Ethiopia,[9] Belgium,[9] Ghana,[9] South Africa,[9] Sweden[9] and

Djibouti.[10] On January 17, 2007, the European Union sent a delegation for foreign affairs to

discuss future cooperation.[11] The African Union has also sent a foreign minister to discuss

the future of international acknowledgment, and on January 29 and January 30, 2007, the

ministers said that they would discuss acknowledgement with other member states [12] In

June 2007, the Prime Minister of Ethiopia, Meles Zenawi held a conference with President

Kahin during which he was referred to in an official communique by the Ethiopian Foreign

Ministry as the President of Somaliland, the first time that Somaliland has been officially

acknowledged as a sovereign state by another government. While this is not claimed as a


P a g e | 18

move to official recognition by Ethiopia, it is seen as a possible step towards a unilateral

declaration by Ethiopia in the event of the African Union failing to move its recognition of

Somaliland forward.[9]

A delegation led by the President of Somaliland was present at the Commonwealth Heads of

Government Meeting 2007 in Kampala, Uganda.

November 27, 2007, Annemie Neyts-Uyttebroeck of the ELDR, one of three main parties in

EU, mailed a letter to Javier Solana (the High Representative for the Common Foreign and

Security Policy (CFSP) and the Secretary-General of both the Council of the European Union

(EU)) and to Dahir Rayale Kahin the president of Somaliland, in which there is required an

acknowledgment of Somaliland by EU.[13] In December 2007 the Bush administration

discussed whether to back the shaky transitional government in Somalia or to acknowledge

and support the less volatile Somaliland secessionists.[14] Politics plays a big part in the new

independent Somaliland region with the highly respected university Amoud with the

universities first donator Bashir Mohamud Yusuf.

Border Disputes

The Republic of Somaliland continues to claim the entire area of the former British

Somaliland. Somaliland is currently in control of the western half of the former British

Somaliland, with northeastern Maakhir having declared a separate, unrecognized autonomous

state within Somalia on July 1, 2007[15], and with the disputed southeastern Sool state under

the control of neighboring Puntland since 2003.[16] A separatist movement exists also in the

westernmost Awdal province.[17]

Tensions escalated into a violent clash between Puntland and Somaliland in October 2007,

when Somaliland forces captured Las Anod, the capital of the disputed region of Sool.[18]

Military Forces

The Somaliland Defence Forces took control of the

town of Las Qorey in eastern Sanaag on 10 July

2008, along with positions five kilometres east of

the town. The Somaliland Defence Forces

completed their operations on 9 July 2008 after the

Maakhir and Puntland militia in the area left their

positions. [19]

Some military facilities were bought during Egal's

administration to assist the military's usual duties

and the necessary movements.


P a g e | 19

GROUP EXERCISES

Group Exercise A

Consider that case of the Principality of Sealand, as detailed in the group exercise section, above.

Consider that the United Kingdom sought to settle the matter in the International Court of Justice and

Sealand agreed. As a matter of procedure, the ICJ agreed to hear the case and allow representatives of

‗Sealand‘ to present their case without their appearance before the Court having any ramifications in

international law.

Team #1:

As a representative of Sealand, argue that Sealand is a sovereign state.

Team #2: As a representative of the United Kingdom, argue that Sealand is part of the

United Kingdom and subject to its jurisdiction.

Group Exercise B

Consider that case of Somaliland, as detailed in the group exercise section, above. Consider that the

issue of the Republic of Somaliland‘s statehood has come before the International Court of Justice for

an advisory opinion requested by the United Nations Development Programme. Somaliland has hired

counsel to represent its views and the ICJ judges need an opposing legal opinion on the issue.

Team #3:

As a representative of Republic of Somaliland, argue that Somaliland is a

sovereign state.

Team #4: As hired counsel to the ICJ, argue that Somaliland is not a sovereign state, but

an internal portion of the state of Somalia.


P a g e | 20

WRITTEN REVIEW

1. Write short definitions for each of the following terms:

Country:

Nation:

State:

Territory:

Permanent Population:

Defined Territory:

Government:

Capacity (to enter into relations with other states):

2. Match each of the terms on the left (from the Montevideo Convention) with the term on the

right (from the United Nations Charter) which has the most similar meaning.

Montevideo Convention

United Nations Charter

No Right to Intervene Member States

Juridically Equal Territorial Integrity

Pacific Methods Sovereign Equality

Person of International Law Political Independence

Political Existence Independent of Recognition Peaceful Means

3. In your opinion, who is the state? Explain in the space provided.


P a g e | 21

TERMINOLOGY LIST


International dispute:

Self defense:

Imminent harm:

Significant harm:

Necessary defense:

Proportionate defense:

Domestic conflict:

Internal affair:

Rights of peoples:

Rights of human beings:

Take steps:

Maximum extent:

Available resources:

Minimum core obligations:

Negative or procedural peace:

Positive or substantive peace:


P a g e | 22

READING ASSIGNMENT

THE NATURE OF PEACE AND ITS IMPLICATIONS FOR

PEACE EDUCATION

By Leo R. Sandy and Ray Perkins, Jr.

http://oz.plymouth.edu/~lsandy/peacedef.html (17 January 2008)

―Our scientific power has outrun our spiritual power. We have guided missiles and misguided men.‖

-Martin Luther King, Jr.

―The abolition of war requires the development of effective non-violent alternatives to military

struggle‖ -Gene Sharp

―But war will only end after a great labour has been performed in altering men‘s moral ideals,

directing them to the good of all mankind and not only of the separate nations into which men happen

to have been born.‖ -Bertrand Russell

―Peace is not merely the absence of war but the presence of justice, of law, of order--in short, of

government.‖ -Albert Einstein

Peace: avoiding the way of negation

―Peace‖ is a word that is uttered almost as frequently as ―truth,‖ ―beauty,‖ and ―love.‖ It may be just

as elusive to define as these other virtues. Common synonyms for ―peace‖ include ‖amity,‖

―friendship,‖ ―harmony,‖ ―concord,‖ ―tranquility,‖ ―repose,‖ ―quiescence,‖ ―truce,‖ ―pacification,‖

and ―neutrality.‖ Likewise, the peacemaker is the pacifier, mediator, intermediary, and intercessor.

While some of these descriptions are appropriate, they are still quite limited in describing both the

nature of peace and the role of the peacemaker. Any attempt to articulate the nature of peace and

peacemaking, therefore, must address those conditions which are favorable to their emergence.

Freedom, human rights, and justice are among such prerequisites. Also included are proactive

strategies such as conflict resolution, nonviolent action, community building, and democratization of

authority.

The peace process additionally must acknowledge and contend with its alternative -- war-- because of

the high value status of violence. For example, while war has brought out the worst kind of behavior in

humans, it has also brought out some of the best. Aside from relieving boredom and monotony, war

has been shown to spawn self-sacrifice, loyalty, honor, heroism, and courage. It is well known that

suicide rates decline during war. Also, war has helped to bring about significant social changes such

as racial and sexual integration, freedom, democracy and a sense of national pride. Because of its

apparent utilitarian value and its ability to enervate, violence has been solidly embedded in the

national psyche of many countries. As a result, its elimination will be no easy feat. Nevertheless,

Reardon (1988) insists that ―peace is the absence of violence in all its forms --physical, social,

psychological, and structural (p. 16). But this, as a definition, is unduly negative in that it fails to

provide any affirmative picture of peace or its ingredients (Copi and Cohen, p. 195). Perhaps that

picture must come, as O‘Kane (1992) suggests, from a close examination of the ―nature of causes,

reasons, goals of war in order that we might ... find ways of reaching human goals without resorting to

force. That process should help us ―uncover‖ the possible conditions of Peace.‖

In its most myopic and limited definition, peace is the mere absence of war. O‘Kane (1992) sees this

definition as a ―vacuous, passive, simplistic, and unresponsive escape mechanism too often resorted to

http://oz.plymouth.edu/~lsandy/peacedef.html


P a g e | 23

in the past -- without success.‖ This definition also commits a serious oversight: it ignores the residual

feelings of mistrust and suspicion that the winners and losers of a war harbor toward each other.

The subsequent suppression of mutual hostile feelings is not taken into account by those who define

peace so simply. Their stance is that as long as people are not actively engaged in overt, mutual,

violent, physical and destructive activity, then peace exists. This, of course, is just another way of

defining cold war. In other words, this simplistic definition is too broad because it allows us to

attribute the term ―peace‖ to states of affairs that are not truly peaceful (Copi and Cohen, p. 194).

Unfortunately, this definition of peace appears to be the prevailing one in the world. It is the kind of

peace maintained by a ―peace through strength‖ posture that has led to the arms race, stockpiles of

nuclear weapons, and the ultimate threat of mutually assured destruction. This version of peace was

defended by the ―peacekeeper‖--a name that actually adorns some U.S. nuclear weapons deployed

since 1986.1 Also, versions of this name appear on entrances to some military bases. Keeping ―peace‖

in this manner evokes the theme in Peggy Lee‘s old song, ―Is That All There is?‖ What this really

comes down to is the idea of massive and indiscriminate killing for peace, which represents a morally

dubious notion if not a fault of logic. The point here is that a ―peace‖ which depends upon the threat

and intention to kill vast numbers of human beings is hardly a stable or justifiable peace worthy of the

name. Those in charge of waging war know that killing is a questionable activity. Otherwise, they

would not use such euphemisms as ―collateral damage‖ and ―smart bombs‖ to obfuscate it.

Some different types of peace

One way of clearing up the confusion over terms is to define types of peace and war. Thus, there can

be hot war, cold war, cold peace, and hot peace. In hot war, commonly called war, there is a condition

of mutual hostility and active physical engagement through such forms as artillery, missiles, bombs,

small arms fire, mortars, flamethrowers, land and sea mines, hand-to-hand combat, and the like. The

aim is the destruction of the enemy or his surrender by intimidation. The object is to have a winner and

loser. Nationalism reaches its zenith here.

In cold war, there is mutual hostility without actual engagement. Intimidation is the sole means of

preventing hot war. This condition is characterized by propaganda, war preparations, and arms races--

always at the expense of human needs. During a cold war, nationalism prevails, and the object is to

have a stalemate where neither side will initiate aggression--nuclear or conventional--because of the

overwhelming destructive capability of the retaliatory response.

In cold peace, there is almost a neutral view of a previous enemy. There is little mutual hostility but

there is also a lack of mutually beneficial interactions aimed at developing trust, interdependence, and

collaboration. There may be a longing for an enemy because nothing has replaced it as an object of

national concern. In this situation, isolationism and nationalism occur simultaneously. There is no

clear objective because there is no well-defined enemy. Perhaps the current U.S. military

preoccupation with Iraq‘s Saddam Hussein and the debilitating decade of sanctions against the Iraqi

people are helping to relieve this enemy deficit. The notion that ―there are still dangerous people in the

world‖ is often used to advance the cause of military preparedness and at least some momentum

toward a restoration of cold war thinking and behavior. The term ―peace dividend‖ that expressed post

cold war optimism is hardly verbalized anymore. Now we are (again) advancing ballistic missile

defense--a variation of the Reagan Administration‘ s Star Wars debacle, and an instigator of nuclear

proliferation.

By contrast, hot peace involves active collaborative efforts designed to ―build bridges‖ between and

among past and present adversaries. This involves searching for common ground and the development

of new non-human enemies--threats to the health and well-being of humankind and the planet.2 These

new enemies could include human rights abuses, air and water pollution, dwindling energy resources,

the destruction of the ozone layer, famine, poverty, and ignorance. Hot peace promotes-- and, indeed,

is defined by--global interdependence, human rights, democratization, an effective United Nations,


P a g e | 24

and a diminution of national sovereignty. The object is the proliferation of cooperative relations and

mutually beneficial outcomes. Hot peace thinking imagines peace and the abolition of war.

Another way of thinking about peace is to have it defined in negative and positive terms. Peace as the

mere absence of war is what Woolman (1985) refers to as ―negative peace.‖ This definition is based

on Johan Galtung‘s ideas of peace. For Galtung, negative peace is defined as a state requiring a set of

social structures that provide security and protection from acts of direct physical violence committed

by individuals, groups or nations. The emphasis is ...on control of violence. The main strategy is

dissociation, whereby conflicting parties are separated...In general, policies based on the idea of

negative peace do not deal with the causes of violence, only its manifestations. Therefore, these

policies are thought to be insufficient to assure lasting conditions of peace. Indeed, by suppressing the

release of tensions resulting from social conflict, negative peace efforts may actually lead to future

violence of greater magnitude. (Woolman, 1985, p.8)

The recent wars in the former Yugoslavia are testimony to this. The massive military machine

previously provided by the U.S.S.R. put a lid on ethnic hostilities yet did nothing to resolve them thus

allowing them to fester and erupt later.

Accentuating the positive

Positive peace, in contrast, is ―a pattern of cooperation and integration between major human

groups....[It] is about people interacting in cooperative ways; it is about social organizations of diverse

peoples who willingly choose to cooperate for the benefit of all humankind; it calls for a system in

which there are no winners and losers--all are winners; it is a state so highly valued that institutions are

built around it to protect and promote it‖ (O‘Kane, 1991-92). It also ―involves the search for positive

conditions which can resolve the underlying causes of conflict that produce violence‖ (Woolman,

1985, p.8). The strategies used for this purpose are called ―associative,‖ and they are characterized by

―a high level of social interaction [which] enables more rapid resolution of conflict by providing

maximum contacts through which solutions may arise‖ (Woolman, 1985, p.8). Woolman also

describes the sort of social reorganization that would provide the best opportunity for real peace.

Essentially, he espouses Galtung‘s idea of smallness and decentralization of power and authority.

Thus, ―small scale social organization offers a better environment for encouragement of local

autonomy, participation, and high levels of inter-group interaction. Big countries, corporations, and

institutions are generally regarded as negative structures because they are prone to depersonalization,

excessive centralization of decision-making, and patterns of center-periphery exploitation.‖ Gene

Sharp (1980) in his Social Power and Political Freedom adroitly elaborates these points. The condition

of smallness does much to reduce feelings of anonymity and powerlessness. It also facilitates the

development of relationships which can restore and preserve community values and spiritual needs

which ―should take precedence over the materialism that is so central to Western culture.‖ (Woolman,

1985, p.12).

Consistent with these approaches, Reardon (1988) places global justice as the central concept of

positive peace and asserts that ―justice, in the sense of the full enjoyment of the entire range of human

rights by all people, is what constitutes positive peace‖ (p.26).

In a similar vain, Trostle‘s (1992) comprehensive definition of peace clearly places it within a

positive context:

―[Peace is] a state of well-being that is characterized by trust, compassion, and justice. In this state, we

can be encouraged to explore as well as celebrate our diversity, and search for the good in each other

without the concern for personal pain and sacrifice. ... It provides us a chance to look at ourselves and

others as part of the human family, part of one world.‖

The role of the individual peacemaker from this perspective would involve people who,


P a g e | 25

―. . . work toward promoting a world in which nonviolent interaction and social equality are the norm.

. . . Individuals of conscience should work to create a ―trickle up‖ theory. . . .by starting at the

grassroots level to encourage corporate leaders, political figures, and government officials to establish

policies promoting peace and justice. This includes not only participating in government by voting,

etc., but also standing against a government that does not operate in the best interest of global

harmony.‖ (Trostle, 1992)

A peacemaking government would require ―a system of non-military national service (to). . . include

the Peace Corps and exchange student or ―exchange citizen‖ programs. . .as well as the duty of largely

developed nations to share technology and surpluses of any kind with those countries in need and less

developed‖ (Trostle, 1992).

Offering another broad positive view of peace is MacLeod (1992) who defines it as,

an awareness that all humans should have the right to a full and satisfying life. For an individual this

means developing his own and his loved ones‘ potential growth, and for reaching out to his neighbors

to help assure that they have the same chance. For communities, this means developing fair

regulations for living together, and encouraging programs that will enhance fellowship among its

many diverse elements. For nations, this means encouraging its citizens to strive for enhancement of a

benign attitude toward all elements of their own society and toward all other nations.

Towards an adequate definition

It is difficult not to see in these ―positive‖ approaches to the definition of ―peace‖ radical implications

for a reorganization of our society and, indeed, our entire world. There is no denying that a positive

conception of peace along the lines suggested by Galtung, Sharp, Reardon, et al. would involve

fundamental changes on the level of the individual psyche and the nation-state as well. At both levels

genuine peace requires the advent of a new self-lessness, a willingness to see our fellow humans as our

bothers and sisters, and--as the traditional religions have always counciled--to love them as we love

ourselves.

But besides this subjective component of each individual‘s altruistic love, there must be justice which

depends on the right sort of social organization. This is Reardon‘s point. It is also implied by Trostle‘s

―state of well-being ... of global harmony ... part of one world.‖ The suggestion here is that, at the

very least, a state of (genuine) peace is something beyond what can be achieved by the traditional

system of sovereign nation-states. The problem, of course, is that this system lacks a system of

workable law, each state being the ultimate arbiter of whether it will wield force in its pursuit of

national interest or not. Without workable world law it‘s hard to see how there can be justice, and so,

peace, in its true sense. The world federalists have expressed this point succinctly but powerfully:

―There can be no world peace without international justice; no international justice without world law;

and no effective world law without institutions to make, interpret and enforce it.‖3 And the world

federalists may be right when they make this requirement of enforceable world law a sine qua non for

the abolition of the age-old institution of war itself. Certainly Albert Einstein thought so when he

declared that ―Peace is not merely the absence of war but the presence of justice, of law, of order--in

short, of government‖ (Einstein, 1968).

In conclusion, we believe that a proper definition of ―peace‖ must include positive characteristics over

and above the mere absence of belligerence. Rather, it must include those positive factors that foster

cooperation among human groups with ostensibly different cultural patterns so that social justice can

be done and human potential can freely develop within democratic political structures. And this--

promoting social justice/freedom by democratic means--will almost certainly require more ―selfless‖

concern at all levels: at the personal level, more brotherly love; and at the international level, less

narrow national self-interest-- a goal which we believe will require a diminution of the current system

of nation states and the gradual emergence of a world community self-governed by world law. In this


P a g e | 26

way, a truly peaceful world will be a world where war has been made impossible--or, at least much

less likely--by a new community where people not only see themselves in their hearts as part of one

human ―family,‖ but where, in (political-legal-moral) reality, they really are part of such a ―family.‖

Lessons for peace education

Finally, what do these insights about the definition of ―peace‖ mean for peace makers, and peace

educators generally, in the 21st Century? We think they mean first that peace makers must stress that

the long range goal of peace education should be the elimination of war as a method of resolving

disputes. Reardon (1988) anticipated this when she said that ―peace education must confront the need

to abolish the institution of war‖ (p.24). To date there has not been a widespread perceived need to do

so. Establishing the need is a challenge that lies ahead. But, secondly and at least equally important,

our reflections about the nature of peace also suggests that the abolition of war will require more than

the mere cessation of hostilities among peoples--not that that would be bad if we could get it. The

problem is, as we saw earlier, that we probably can‘t get it without a radical reconstruction of

interpersonal and international relations along the lines suggested by our earlier examination. And

paramount among these relations are the ideas of social justice and world law. The importance of these

ideas in successfully pursuing the quest of abolishing war is, we think, an equally important

implication for the future of peace education. Of course, the quest for peace and the abolition of war

will be a long one requiring us to dig deeper into the very depths of the human and institutional

psyches which lead ―civilized‖ peoples to resort to force and, hopefully, to find and build the elusive

―peace‖. This quest requires that we teach for peace and not just about peace.

Works Cited

Brallsford, P. (1992). Personal correspondence*.

Copi, I. and Cohen, Carl. Introduction to Logic, 9th ed.; New York: Macmillan, 1994.

Einstein, A. Einstein on Peace . Nathan and Norden, ed; New York: Schocken, 1968, p. 371

MacLeod, R. (1992). Personal correspondence.

O‘Kane, M. ―Peace: The Overwhelming Task,‖ Veterans for Peace.

Inc. Journal, (Winter 1991-92), Issue no.19, p.3.

O‘Kane, M. (1992). Personal correspondence.

Reardon, B.A. Comprehensive Peace Education. New York: Teachers

College Press, 1988.

Russell, B. Principles of Social Reconstruction. London: Allen and Unwin, 1916, Ch. 5 [published in

the U.S. as Why Men Fight. New York:The Century Co., 1916]

Sharp, G. Social Power and Political Freedom. Boston: Porter Sargent, 1980.

Trostle, T. (1992). Personal correspondence

Woolman, D.C. ―Education and Peace in the Thought of Johan Galtung,‖ Currents: Issues in

Education and Human Development Education and Peace, (Spring, 1985), Vol. 3, no. 2, pp. 7-20.

*The people cited as ―personal correspondence‖ are all veterans of military service between World

War II and the Vietnam War. They are all members of Veterans for Peace, Inc., and they relayed their

thoughts to Leo Sandy in written correspondence.


P a g e | 27

SUMMARY OF THE LAW

Montevideo Convention (1933)

Art. 10: ‖the primary interest of states is the conservation of peace‖

United Nations Charter (1945)

Art. 2 (3): ‖All members shall settle their international disputes by peaceful means…‖

Art. 2 (4): All Members shall refrain in their international relations from the threat or use of

force against the territorial integrity or political independence of any state…‖

Art. 39-50: Only the UN Security Council can use force ‖to restore international peace and

security.‖

Declaration on the Right of Peoples to Peace (UNGA Res. 39/11, 12 Nov 1984)

‖Ren[ounce] the use of force in international relations‖

―Convinced that life without war serves as the primary international prerequisite for the

material well-being, development and progress of countries, and for the full implementation

of the rights and fundamental human freedoms proclaimed by the United Nations‖

International Covenant on Economic, Social and Cultural Rights (1966)

Art. 2 (1): ―Each State Party to the present Covenant undertakes to take steps, individually

and through international assistance and co-operation, especially economic and technical, to

the maximum of its available resources, with a view to achieving progressively the full

realization of the rights recognized in the present Covenant by all appropriate means,

including particularly the adoption of legislative measures.‖


P a g e | 28

PRACTICAL EXERCISES

EXERCISE A

Consider the issue of economic sanctions imposed by

the United States of America against the Republic of

Cuba. Are the U.S. sanctions violations of a right to

peace? Positive or negative peace? What legal

obligations does the U.S. have toward the adequate

standardof living of individuals living in Cuba.

The United States and Cuba are separated by 25-

kilometers of water off the Southeastern coast of

Florida. The U.S. had assisted Cuba in its liberation

from Spain in 1902, but in the succeeding decades

frequently intervened in Cuban political affairs.

There was substantial U.S. investment in Cuban

production of sugar and tobacco for export, and in

tourism, as well as preferential access for Cuban

exports to the United States. By as early as 1926, U.S

companies owned 60% of the Cuban sugar industry

and imported 95% of the total Cuban crop.

In 1959, the Cuban Revolution brought the overthrow of General Fulgencio Batista and the rise to

power of Fidel Castro. The U.S. government formally recognized the new Cuban administration, but

relations deteriorated rapidly as the Cuban government passed the first of a series of Agrarian Reform

Laws. These laws expropriated most large-scale land holdings. These lands were largely American-

owned, having been acquired via American ‗right-to-intervention‘ that had been solidified in the

Cuban constitution (notably the United Fruit Company and ITT).

Cuba offered compensation for the land in the form of 20-year bonds at 4.5% interest for the tax-

declared value. The U.S. government rejected this offer as being inadequate. Furthermore, by the end

of 1959, Cuba and the Soviet Union began to establish relations. During 1960, tensions escalated into

economic warfare, resulting in the prohibition by the U.S. of all exports to Cuba on 19 October 1960.

A formal commercial, economic, and financial embargo followed on 7 February 1962.

The embargo was codified into U.S. law in 1992 with the stated purpose of ―bringing democracy to

the Cuban people,‖ and in fact is entitled the Cuban Democracy Act. In 1996, the U.S. Congress

passed the Helms-Burton Act, which further restricted United States citizens from doing business in or

with Cuba, and mandated restrictions on giving public or private assistance to any successor regime in

Havana unless and until certain claims against the Cuban government are met. In 1999, U.S. President

Bill Clinton modified the trade embargo by requiring that foreign subsidiaries of U.S. companies stop

trading with Cuba. He also authorized the sale of certain US products to Cuba.

The effects of the embargo are wide-spread, although responsibility for them can be distributed among

a number of reasons. Economic damage resulting from the embargo is partially responsible for

endemic food shortages and transportation difficulties. It has effects on food, clean water, medicine,

and other economic needs of the Cuban population. It has also been linked to shortages of medical

supplies and soap which have resulted in a series of medical crises and heightened levels of infectious

diseases. It has also been linked to epidemics of specific diseases, including neurological disorders


P a g e | 29

caused by poor nutrition and blindness. Travel restrictions embedded in the embargo have also been

shown to limit the amount of medical information that flows into Cuba from the United States.

Malnutrition and disease resulting from increased food and medicine prices have affected men and the

elderly in particular due to a rationing system which gives preferential treatment to women and

children.

As of today, the embargo remains in place.

For further information on the effects of the embargo, see:

American Association for World Health. ―Denial of Food and Medicine: The Impact Of The U.S.

Embargo On The Health And Nutrition In Cuba.‖ (March 1997).

Michèle Barry. ―Effect of the U.S. Embargo and Economic Decline on Health in Cuba.‖ Annals of

Internal Medicine (Vol. 132, No. 2, 18 January 2000).

<http://www.annals.org/cgi/reprint/132/2/151.pdf>

R. Garfield and S. Santana. ―The impact of the economic crisis and the US embargo on health in

Cuba.‖ American Journal of Public Health (Vol. 87, No. 1, January 1997), pp. 15–20.

EXERCISE B

Consider the issue of the Iraeli-Gaza Conflict and, in particular, the 2009 Gaza War. Are the Israeli or

Gazan (Palestinian) actions violations of a right to peace? Positive or negative peace? What legal

obligations does Israel have to those in Gaza and what obligations does Gaza have to those in Israel?

Consider these facts:

A truce between Israel and Hamas had been

agreed on 19 June 2008, but expired on 19

December 2008.

Beginning in November, a number of rockets

and mortars were launched from Gaza into

Israeli territory, killing or wounding Israelis

(see table, below)

On 27 December 2008, Israel launched a

military operation with the stated objective of

halting Hamas rocket fire into Israeli territory.

The Israeli military operation consisted of

aerial bombing and a ground invasion.

From 27 December 2008 until 19 January

2009, more than 1000 rockets or mortar were

fired into Israel from Gaza.

The Israeli military operation caused the

deaths of more than 1300 people in Gaza,

approximately 700 of these civilians

(including 4 UN workers, 13 medical workers,

and 4 journalists).

The rocket attacks caused the deaths of four

Israelis, including 3 civilians. In addition, nine

Israeli soldiers were killed.

Supplement these facts with any additional

information known to you.

’Gazan’ Rockets


P a g e | 30

ROCKET & MORTAR ATTACKS FROM GAZA INTO ISRAEL

Type Jan Feb Mar Apr May June 1-18 June 18-30 Jul Aug Sept Oct Nov Dec

Rockets 136 228 103 373 206 153 5 4 8 1 1 125 361

Mortar 241 257 196 145 149 84 3 8 3 3 1 68 241

Israeli Rockets


P a g e | 31

GROUP EXERCISES

As a member of the team to which you are assigned complete the exercise which corresponds to your

team number.

Begin by reading the provided materials and discussing the issues with your team mates. Note that all

discussions must be in English.

Each team should begin their discussions by choosing a ‗lead counsel‘ who will lead the team

presentations and rebuttals during the in-class exercise. Other team members should still verbally

participate during the in-class exercise—the lead counsel role is simply to have someone in charge

during discussions and remaining responsible for fielding any questions. (Each student will have an

opportunity to be a lead counsel during the course.)

Following a period of team discussions, each team will present an opening argument of ca. 5 minutes.

Each team will then have a rebuttal period to each others presentations. Thereafter, any other students

may pose questions to the two teams. The presiding judge may ask a question at any time during the

exercise. In the arguments, attempt to utilize as many terms as possible that were discussed in class.

The Honorable Richard Hustad, acting ICJ judge, will preside over both cases.

GROUP EXERCISE A

With reference to practical exercise A, above, consider that the two states sought to settle the matter in

the International Court of Justice.

Team #1:

As a representative of the United States, argue that the U.S. embargo of Cuba is

not a violation of the ‘right‘ to peace.

Team #2: As a representative of Cuba, argue that the U.S. embargo is a violation of the

‘right‘ to peace.

GROUP EXERCISE B

With reference to practical exercise B, above, consider that the issue was brought before the

International Court of Justice in a request by the UN General Assembly for an advisory opinion on

whether either Israel or those from Gaza violated the ‗right‘ to peace.

Team #3:

As a representative of the State of Israel, argue that the Israeli military action

in Gaza was not a violation of a ‘right‘ to peace, but that certain Palestinian

actions were a violation.

Team #4: As a representative of the territory commonly referred to as Gaza, argue that

the Israeli military action in Gaza was a violation of the ‘right‘ to peace, but

that Palestinian actions were not a violation.


P a g e | 32

WRITTEN REVIEW

1. Write short definitions for each of the following terms:

International Dispute:

‗All Means Necessary‘:

‗Material Breach‘:

Self-defense:

Pacific Settlement of Disputes:

Conservation of Peace:

2. Match each of the terms on the left (from the Montevideo Convention) with the term on the

right (from the United Nations Charter) which has the most similar meaning.

Negative peace

Those who are entitled to all human rights

Peoples

Substantive Peace

Poverty

Procedural Peace

Positive Peace

Those who are entitled to the explicit ‗right to peace‘

Every human being A breach of positive peace

3. In the space provided, explain the difference between ‘negative peace’ and ‘positive peace.’


P a g e | 33

TERMINOLOGY LIST


1. External Sovereignty:

2. Internal Sovereignty:

3. Human rights law:

4. Respect human rights:

5. Protect human rights:

6. Fulfill human rights:

7. Human rights organ:

8. Human rights mechanism:

9. Treaty-based body:

10. Charter-based body:

11. Expert body:

12. Political body:

13. Committee:

14. View:

15. Exhaustion of domestic remedies:


P a g e | 34

READING ASSIGNMENT

SANDRA LOVELACE V. CANADA Covenant on Civil and Political Rights

Human Rights Committee Communication No. R.6/24

U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981)

Submitted by: Sandra Lovelace

State party concerned: Canada

Date of communication: 29 December 1977

The Human Rights Committee, established under article 28 of the International Covenant on Civil and

Political Rights, Meeting on 30 July 1981;

Having concluded its consideration of communication No. R.6/24 submitted to the Committee by

Sandra Lovelace under the Optional Protocol to the International Covenant on Civil and Political

Rights;

Having taken into account all written information made available to it by the authors of the

communication and by the State party concerned; adopts the following:

VIEWS UNDER ARTICLE 5 (4) OF THE OPTIONAL PROTOCOL

1. The author of the communication dated 29 December 1977 and supplemented by letters of 17 April

1978, 28 November 1979 and 20 June 1980, is a 32-year-old woman, living in Canada. She was born

and registered as "Maliseet Indian" but has lost her rights and status as an Indian in accordance with

section 12 (1) (b) of the Indian Act, after having married a non-Indian on 23 May 1970. Pointing out

that an Indian man who marries a non-Indian woman does not lose his Indian status, she claims that

the Act is discriminatory on the rounds of sex and contrary to articles 2 (1), 3, 23 (1) and (4), 26 and

27 of the Covenant. As to the admissibility of the communication, she contends that she was not

required to exhaust local remedies since the Supreme Court of Canada, in The Attorney-General of

Canada v. Jeanette Lavalle, Richard Isaac et al. v. Ivonne Bedard /1974/ S.C.R. 1349, held that section

12 (1) (b) was fully operative, irrespective of its inconsistency with the Canadian Bill of Rights on

account of discrimination based on sex.

2. By its decision of 18 July 1978 the Human Rights Committee transmitted the communication, under

rule 91 of the provisional rules of procedure, to the State party concerned, requesting information and

observations relevant to the question of admissibility of the communication. This request for

information and observations was reiterated by a decision of the Committee's Working Group, dated 6

April 1979.

3. By its decision of 14 August 1979 the Human Rights Committee declared the communication

admissible and requested the author of the communication to submit additional information

concerning her age and her marriage, which had not been indicated in the original submission. At that

time no information or observations had been received from the State party concerning the question of

admissibility of the communication.

4. In its submission dated 26 September 1979 relating to the admissibility of the communication, the

State party informed the Committee that it had no comments on that point to make. This fact, however,

should not be considered as an admission of the merits of the allegations or the arguments of the

author of the communication.

5. In its submission under article 4 (2) of the Optional Protocol concerning the merits of the case,

dated 4 April 1980, the State party recognized that "many of the provisions of the ... Indian Act,

including section 12 (1) (b), require serious reconsideration and reform". The Government further


P a g e | 35

referred to an earlier public declaration to the effect that it intended to put a reform bill before the

Canadian Parliament. It none the less stressed the necessity of the Indian Act as an instrument

designed to protect the Indian minority in accordance with article 27 of the Covenant. A definition of

the Indian was inevitable in view of the special privileges granted. to the Indian communities, in

particular their right to occupy reserve lands. Traditionally, patrilineal family relationships were taken

into account for determining legal claims. Since, additionally, in the farming societies of the

nineteenth century, reserve land was felt to be more threatened by non-Indian men than by non-Indian

women, legal enactments as from 1869 provided that an Indian woman who married a non-Indian man

would lose her status as an Indian. These reasons were still valid. A change in the law could only be

sought in consultation with the Indians themselves who, however, were divided on the issue of equal

rights. The Indian community should not be endangered by legislative changes. Therefore, although

the Government was in principle committed to mending section 12 (1) (b) of the Indian Act, no quick

and immediate legislative action could be expected.

6. The author of the communication, in her submission of 20 June 1980, disputes the contention that

legal relationships within Indian families were traditionally patrilineal in nature. Her view is that the

reasons put forward by the Canadian Government do not justify the discrimination against Indian

women in section 12 (1) (b) of the Indian Act. She concludes that the Human Rights Committee

should recommend the State party to amend the provisions in question.

7.1 In an Interim decision, adopted on 31 July 1980, the Human Rights Committee set out the issues of

the case in the following considerations:

7.2 The Human Rights Committee recognized that the relevant provision of the Indian Act, although

not legally restricting the right to marry as laid down in article 23 (2) of the Covenant, entails serious

disadvantages on the part of the Indian woman who wants to marry a non-Indian man and may in fact

cause her to live with her fiancé in an unmarried relationship. There is thus a question as to whether

the obligation of the State party under article 23 of the Covenant with regard to the protection of the

family is complied with. Moreover, since only Indian women and not Indian men are subject to these

disadvantages under the Act, the question arises whether Canada complies with its commitment under

articles 2 and 3 to secure the rights under the Covenant without discrimination as to sex. On the other

hand, article 27 of the Covenant requires States parties to accord protection to ethnic and linguistic

minorities and the Committee must give due weight to this obligation. To enable it to form an opinion

on these issues, it would assist the Committee to have certain additional observations and information.

7.3 In regard to the present communication, however, the Human Rights Committee must also take

into account that the Covenant has entered into force in respect of Canada on 19 August 1976, several

years after the marriage of Mrs. Lovelace. She consequently lost her status as an Indian at a time when

Canada was not bound by the Covenant. The Human Rights Committee has held that it is empowered

to consider a communication when the measures complained of, although they occurred before the

entry into force of the Covenant, continued to have effects which themselves constitute a violation of

the Covenant after that date. It is therefore relevant for the Committee to know whether the marriage

of Mrs. Lovelace in 1970 has had any such effects.

7.4 Since the author of the communication is ethnically an Indian, some persisting effects of her loss

of legal status as an Indian may, as from the entry into force of the Covenant for Canada, amount to a

violation of rights protected by the Covenant. The Human Rights Committee has been informed that

persons in her situation are denied the right to live on an Indian reserve with resultant separation from

the Indian community and members of their families. Such prohibition may affect rights which the

Covenant guarantees in articles 12 (1), 17, 23 (1), 24 and 27. There may be other such effects of her

loss of status.

8. The Human Rights Committee invited the parties to submit their observations on the above

considerations and, as appropriate, to furnish replies to the following questions:

(a) How many Indian women marry non-Indian men on an average each year? Statistical data

for the last 20 years should be provided.

(b) What is the legal basis of a prohibition to live on a reserve? Is it a direct result of the loss

of Indian status or does it derive from a discretionary decision of the Council of the


P a g e | 36

community concerned?

(c) What reasons are adduced to Justify the denial of the right of abode on a reserve?

(d) What legislative proposals are under consideration for ensuring full equality between the

sexes with regard to Indian status? How would they affect the position of Mrs. Lovelace?

How soon can it be expected that legislation will be introduced?

(e) What was Mrs. Lovelace's place of abode prior to her marriage? Was she at that time

living with other members of her family? Was she denied the right to reside on a reserve

in consequence of her marriage?

(f) What other persisting effects of Mrs. Lovelace's loss of status are there which may be

relevant to any of the rights protected by the Covenant?

9.1 In submissions dated 22 October and 2 December 1980 the State party and the author,

respectively, commented on the Committee's considerations and furnished replies to the questions

asked.

9.2 It emerges from statistics provided by the State party that from 1965 to 1978, on an average,

510 Indian women married non-Indian men each year. Marriages between Indian women and

Indian men of the same band during that period were 590 on the average each year; between

Indian women and Indian men of a different band 422 on the average each year; and between

Indian men and non-Indian women 448 on the average each year.

9.3 As to the legal basis of a prohibition to live on a reserve, the State party offers the following

explanations:

"Section 14 of the Indian Act provides that '(an Indian) woman who is a member of a band

ceases to be a member of that band if she marries a person who is not a member of that band'.1

As such, she loses the right to the use and benefits, in common with other members of the

band, of the land allotted to the band.2 It should, however, be noted that 'when (an Indian

woman) marries a member of another band, she thereupon becomes a member of the band of

which her husband is a member' As such, she is entitled to the use and benefit of lands allotted

to her husband's band.

"An Indian (including a woman) who cease to be a member of a band ceases to be entitled to

reside by right on a reserve. None the less it is possible for an individual to reside on a reserve

if his or her presence thereon is tolerated by a band or its members. It should be noted that

under section 30 of the Indian Act, any person who trespasses on a reserve is guilty of an

offence. In addition, section 31 of the Act provides that an Indian or a band (and of course its

agent, the Band Council) may seek relief or remedy against any person, other than an Indian,

who is or has been

"(a) unlawfully in occupation or possession of,

"(b) claiming adversely the right to occupation or possession of, or

"(c) trespassing upon a reserve or part thereof."

9.4 As to the reasons adduced to justify the denial of the right of abode on a reserve, the State party

states that the provisions of the Indian Act which govern the right to reside on a reserve have been

enacted to give effect to various treaty obligations reserving to the Indians exclusive use of certain

lands.

9.5 With regard to the legislative proposals under consideration, the State party offers the following

information:

1 Mrs. Lovelace married a non-Indian. As such, she ceased to be a member of the Tobique band. In

addition, by the application of subparagraph 12 (1) (b) of the Indian Act, she lost her Indian status. 2 It should be noted that when an Indian ceases to be a member of a band? he is entitled, if he meets

the conditions set out in sections 15 and 16 of the Indian Acts to compensation from Her Majesty for

this loss of membership.


P a g e | 37

"Legislative proposals are being considered which would ensure that no Indian person, male

or female, would lose his or her status under any circumstances other than his or her own

personal desire to renounce it.

"In addition, changes to the present sections under which the status of the Indian woman and

minor children is dependent upon the status of her spouse are also being considered.

"Further recommendations are being considered which would give Band Councils powers to

pass by-laws concerning membership in the band; such by-laws, however, would be required

to be non-discriminatory in the areas of sex, religion and family affiliation.

"In the case of Mrs. Lovelace, when such new legislation is enacted, she would then be

entitled to be registered as an Indian.

"Legislative recommendations are being prepared for presentation to Cabinet for approval and

placement on the Parliamentary Calendar for introduction before the House by mid-1981."

9.6 As to Mrs. Lovelace's place of abode prior to her marriage both parties confirm that she was at that

time living on the. Tobique Reserve with her parents. Sandra Lovelace adds that as a result of her

marriage, she was denied the right to live on an Indian reserve. As to her abode since then the State

party observes:

"Since her marriage and following her divorce, Mrs. Lovelace has, from time to time, lived on

the reserve in the home of her parents, and the Band Council has made no move to prevent her

from doing so. However, Mrs. Lovelace wishes to live permanently on the reserve and to

obtain a new house. To do so, she has to apply to the Band Council. Housing on reserves is

provided with money set aside by Parliament for the benefit of registered Indians. The Council

has not agreed to provide Mrs. Lovelace with a new house. It considers that in the provision of

such housing priority is to be given to registered Indians."

9.7 In this connexion the following additional information has been submitted on behalf of Mrs.

Lovelace:

"At the present time, Sandra Lovelace is living on the Tobique Indian Reserve, although she

has no right to remain there. She has returned to the 'Reserve, with her children because her

marriage has broken up and she has no other place to reside. She is able to remain on the

reserve in violation of the law of the local Band Council because dissident members of the

tribe who support her cause have threatened to resort to physical violence in her defence

should the authorities attempt to remove her."

9.8 As to the other persisting effects of Mrs. Lovelace's loss of Indian status the State party submits

the following:

"When Mrs. Lovelace lost her Indian status through marriage to a non-Indian, she also lost

access to federal government programs for Indian people in areas such as education, housing,

social assistance? etc. At the same time, however, she and her children became eligible to

receive similar benefits from programs the provincial government provides for all residents of

the province.

"Mrs. Lovelace is no longer a member of the Tobique band and no longer an Indian under the

terms of the Indian Act. She however is enjoying all the rights recognized in the Covenant, in

the same way as any other individual within the territory of Canada and subject to its

jurisdiction."

9.9 On behalf of Sandra Lovelace the. following is submitted in this connexion:

"All the consequences of loss of status persist in that they are permanent and continue to deny

the complainant rights she was born with.

"A person who ceases to be an Indian under the Indian Act suffers the following

consequences:

"(1) Loss of the right to possess or reside on lands on a reserve (as. 25 and 28 (1)).

This includes loss of the right to return to the reserve after leaving, the right to inherit


P a g e | 38

possessory interest in land from parents or others, and the right to be buried on a

reserve;

"(2) An Indian without status cannot receive loans from the Consolidated Revenue

Fund for the purposes set out in section 70;

"(3) An Indian without status cannot benefit from instruction in farming and cannot

receive seed without charge from the Minister (see section 71);

"(4) An Indian without status cannot benefit from medical treatment and health

services provided under section 73 (1) (g);

"(5) An Indian without status cannot reside on tax exempt lands (section 87);

"(6) A person ceasing to be an Indian loses the right to borrow money for housing

from the Band Council (Consolidated Regulations of Canada, 1978, c. 949);

"(7) A person ceasing to be an Indian loses the right to cut timber free of dues on an

Indian reserve (section 4 - Indian Timber Regulations, c. 961, 1978 Consolidated

Regulations of Canada);

"(8) A person ceasing to be an Indian loses traditional hunting and fishing rights that

may exist;

"(9) The major loss to a person ceasing to be an Indian is the loss of the cultural

benefits of living in an Indian community, the emotional ties to home, family, friends

and neighbours, and the loss of identity."

10. The Human Rights Committee, in the examination of the communication before it, has to proceed

from the basic fact that Sandra Lovelace married a non-Indian on 23 May 1970 and consequently lost

her status as a Maliseet Indian under section 12 (1) (b) of the Indian Act. This provision was - and still

is - based on a distinction de jure on the ground of sex. However, neither its application to her

marriage as the cause of her loss of Indian status nor its effects could at that time amount to a violation

of the Covenant, because this instrument did not come into force for Canada until 19 August 1976.

Moreover, the Committee is not competent, as a rule, to examine allegations relating to events having

taken place before the entry into force of the Covenant and the Optional Protocol. Therefore as regards

Canada it can only consider alleged violations of human rights occurring on or after 19 August 1976.

In the case of a particular individual claiming to be a victim of a violation, it cannot express its view

on the law in the abstract, without regard to the date on which this law was applied to the alleged

victim. In the case of Sandra Lovelace it follows that the Committee is not competent to express any

view on the original cause of her loss of Indian status, i.e. the Indian Act as applied to her at the time

of her marriage in 1970.

11. The Committee recognizes, however, that the situation may be different if the alleged violations,

although relating to events occurring before 19 August 1976, continue, or have effects which

themselves constitute violations, after that date. In examining the situation of Sandra Lovelace in this

respect, the Committee must have regard to all relevant provisions of the Covenant. It has considered,

in particular, the extent to which the general provisions in articles 2 and 3 as well as the rights in

articles 12 (1), 17 (1), 23 (1), 24, 26 and 27, may be applicable to the facts of her present situation.

12. The Committee first observes that from 19 August 1976 Canada had undertaken under article 2 (1)

and (2) of the Covenant to respect and ensure to all individuals within its territory and subject to its

jurisdiction, the rights recognized in the Covenant without distinction of any kind such as sex, and to

adopt the necessary measures to give effect to these rights. Further, under article 3, Canada undertook

to ensure the equal right of men and women to the enjoyment of these rights. These undertakings

apply also to the position of Sandra Lovelace. The Committee considers, however, that it is not

necessary for the purposes of her communication to decide their extent in all respects. The full scope

of the obligation of Canada to remove the effects or inequalities caused by the application of existing

laws to past events, in particular as regards such matters as civil or personal status, does not have to be

examined in the present case, for the reasons set out below.

13.1 The Committee considers that the essence of the present complaint concerns the continuing effect

of the Indian Act, in denying Sandra Lovelace legal status as an Indian, in particular because she


P a g e | 39

cannot for this reason claim a legal right to reside where she wishes to, on the Tobique Reserve. This

fact persists after the entry into force of the Covenant, and its effects have to be examined, without

regard to their original cause. Among the effects referred to on behalf of the author (quoted in

paragraph 9.9, above, and listed (1) to (9)), the greater number, ((1) to (8)), relate to the Indian Act and

other Canadian rules in fields which do not necessarily adversely affect the enjoyment of rights

protected by the Covenant. In this respect the significant matter is her last claim, that "the major loss

to a person ceasing to be an Indian is the loss of the cultural benefits of living in an Indian community,

the emotional ties to home, family, friends and neighbours, and the loss of identity".

13.2 Although a number of provisions of the Covenant have been invoked by Sandra Lovelace, the

Committee considers that the one which is most directly applicable to this complaint is article 27,

which reads as follows:

"In those States in which ethnic, religious or linguistic minorities exist, persons belonging to

such minorities shall not be denied the right, in community with the other members of their

group, to enjoy their own culture, to profess and practise their own religion, or to use their

own language."

It has to be considered whether Sandra Lovelace, because she is denied the legal right to reside dn the

Tobique Reserve, has by that fact been denied the right guaranteed by article 27 to persons belonging

to minorities, to enjoy their own culture and to use their own language in community with other

members of their group.

14. The rights under article 27 of the Covenant have to be secured to "persons belonging" to the

minority. At present Sandra Lovelace does not qualify as an Indian under Canadian legislation.

However, the Indian Act deals primarily with a number of privileges which, as stated above, do not as

such come within the scope of the Covenant. Protection under the Indian Act and protection under

article 27 of the Covenant therefore have to be distinguished. Persons who are born and brought up on

a reserves who have kept ties with their community and wish to maintain these ties must normally be

considered as belonging to that minority within the meaning of the Covenant. Since Sandra Lovelace

is ethnically a Maliseet Indian and has only been absent from her home reserve for a few years during

the existence of her marriage, she is, in the opinion of the Committee, entitled to be regarded as

"belonging" to this minority and to claim the benefits of article 27 of the Covenant. The question

whether these benefits have been denied to her, depends on how far they extend. 15. The right to live

on a reserve is not as such guaranteed by article 27 of the Covenant. Moreover, the Indian Act does

not interfere directly with the functions which are expressly mentioned in that article. However, in the

opinion of the Committee the right of Sandra Lovelace to access to her native culture and language "in

community with the other members" of her group, has in fact been, and continues to be interfered

with, because there is no place outside the Tobique Reserve where such a community exists. On the

other hand, not every interference can be regarded as a denial of rights within the meaning of article

27. Restrictions on the right to residence, by way of national legislation, cannot be ruled out under

article 27 of the Covenant. This also follows from the restrictions to article 12 (1) of the Covenant set

out in article 12 (3). The Committee recognizes the need to define the category of persons entitled to

live on a reserve, for such purposes as those explained by the Government regarding protection of its

resources and preservation of the identity of its people. However, the obligations which the

Government has since undertaken under the Covenant must also be taken into account.

16. In this respect, the Committee is of the view that statutory restrictions affecting the right to

residence on a reserve of a person belonging to the minority concerned, must have both a reasonable

and objective justification and be consistent with the other provisions of the Covenant, read as a

whole. Article 27 must be construed and applied in the light of the other provisions mentioned above,

such as articles 12, 17 and 23 in so far as they may be relevant to the particular case, and also the

provisions against discrimination, such as articles 2, 3 and 26, as the case may be. It is not necessary,

however, to determine in any general manner which restrictions may be justified under the Covenant,

in particular as a result of marriage, because the circumstances are special in the present case.

17. The case of Sandra Lovelace should be considered in the light of the fact that her marriage to a

non-Indian has broken up. It is natural that in such a situation she wishes to return to the environment


P a g e | 40

in which she was born, particularly as after the dissolution of her marriage her main cultural

attachment again was to the Maliseet band. Whatever may be the merits of the Indian Act in other

respects, it does not seem to the Committee that to deny Sandra Lovelace the right to reside on the

reserve is reasonable, or necessary to preserve the identity of the tribe. The Committee therefore

concludes that to prevent her recognition as belonging to the band is an unjustifiable denial of her

rights under article 27 of the Covenant, read in the context of the other provisions referred to.

18. In view of this finding, the Committee does not consider it necessary to examine whether the same

facts also show separate breaches of the other rights invoked. The specific rights most directly

applicable to her situation are those under article 27 of the Covenant. The rights to choose one's

residence (article 12), and the rights aimed at protecting family life and children (articles 17, 23 and

24) are only indirectly at stake in the present case. The facts of the case do not seem to require further

examination under those articles. The Committee's finding of a lack of a reasonable justification for

the interference with Sandra Lovelace's rights under article 27 of the Covenant also makes it

unnecessary, as suggested above (paragraph 12), to examine the general provisions against

discrimination (articles 2, 3 and 26) in the context of the present case, and in particular to determine

their bearing upon inequalities predating the coming into force of the Covenant for Canada.

19. Accordingly, the Human Rights Committee, acting under article 5 (4) of the Optional Protocol to

the International Covenant on Civil and Political Rights, is of the view that the facts of the present

case, which establish that Sandra Lovelace has been denied the legal right to reside on the Tobique

Reserve, disclose a breach by Canada of article 27 of the Covenant.


P a g e | 41

SUMMARY OF THE LAW

International Covenant on Economic, Social and Cultural Rights

Art. 11 (1): The States Parties to the present Covenant recognize the right of everyone to an adequate

standard of living for himself and his family, including adequate food, clothing and housing, and to the

continuous improvement of living conditions. The States Parties will take appropriate steps to ensure

the realization of this right, recognizing to this effect the essential importance of international co-

operation based on free consent. General comment on its implementation

Art. 11 (2): The States Parties to the present Covenant, recognizing the fundamental right of everyone

to be free from hunger, shall take, individually and through international co-operation, the measures,

including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making

full use of technical and scientific knowledge, by disseminating knowledge of the principles of

nutrition and by developing or reforming agrarian systems in such a way as to achieve the

most efficient development and utilization of natural resources;

(b) Taking into account the problems of both food-importing and food-exporting countries, to

ensure an equitable distribution of world food supplies in relation to need.

The International Convention against Torture and Other Forms of Cruel, Inhuman and

Degrading Treatment

Art. 1: ―Any act by which severe pain or suffering, whether physical or mental, is intentionally

inflicted on a person for such purposes as obtaining from him or a third person information or

a confession, punishing him for an act he or a third person has committed or is suspected of

having committed, or intimidating or coercing him or a third person, or for any reason based

on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation

of or with the consent or acquiescence of a public official or other person acting in an official

capacity. It does not include pain or suffering arising only from, inherent in or incidental to

lawful sanctions.‖


P a g e | 42

PRACTICAL EXERCISES

PRACTICAL EXERCISE A

Consider the information provided on the following pages on the fictitious case of Chipo Mashona v.

Zimbabwe.

Chipo Mashona is a 55-year-old woman living in Bulawayo, a city in Matabeleland in southwestern

Zimbabwe. In 1990, she lived outside the city and worked as a farm administrator, a position for

which she had been trained by her father who himself was a third-generation administrator. She lived

on the farm in a house that although being legally owned by the farm, had been the residence of her

family for four generations.

Beginning in 1990, the government of Zimbabwe began land reforms. According to the government,

the purpose of the reforms was to redistribute land out of the hands of white farmers who owned 70%

of the arable land, despite making up only 1% of the population. The government contended that white

ownership was the result of centuries of colonial domination and was a continual source of denial of

popular control over the natural resources of the country. Critics claim that the so-called reforms are

simply a means of rewarding support for the government since the result has simply been transfer of

ownership from a small group of whites to a small group of government elites.

As a result of the reforms, the farm on which Ms. Mashona was administrator became the property of

the then-serving Minister of the Interior. Three days after the takeover, Ms. Mashona was dismissed

from her position and evicted from her house. She did not receive any advanced notice of her

termination nor severance pay. Neither did she receive any notice of her eviction nor relocation

benefits.

Ms. Mashona first moved to a small cottage near the farm and attempted to find work elsewhere in the

agricultural sector. Unable to do so and without any savings, she moved to the nearest city, Bulawayo,

where she rented a one-room apartment. She earned money doing odd jobs, but it was barely enough

to pay for rent and food. This is how she existed for fifteen years.

Five years ago, she became the primary caregiver for her four grandchildren because the children‘s

parents died from AIDS. This made her financial situation even more precarious. Shortly thereafter,

the government decided to conduct an urban renewal project in her neighbourhood. The area was what

is generally referred to as a slum. It was land that was owned by the railroad company, but upon which

small houses had been built decades ago and within which lived approximately 100,000 people.

The urban renewal program called for the destruction of the illegally-built houses and construction of

low-cost housing that was of a higher standard, including indoor plumbing and electricity. Owners of

homes that were already built were compensated for their structures, as was Ms. Mashona‘s landlord.

After all compensation issues were resolved, the slum was destroyed. The new homes are expected to

be finished within two years, but there are no guarantees about who will be allowed to live in them.

After the slum destruction two years ago, Ms. Mashona has been homeless, without sufficient

resources to afford shelter and usually not enough to provide a sufficient amount of food to the

children. One of the four children died last year.


P a g e | 43

There is no government aide available to Ms. Mashona. However, she has already lived far beyond the

average life expectancy of 34 years for a woman in Zimbabwe. With the help of an NGO, her case was

raised in the courts in Zimbabwe, but dismissed without the possibility of further appeals.

Ms. Mashona now wishes to bring the case to an international or regional human rights body. For the

purposes of this exercise, Zimbabwe is a state party to all international human rights treaties and

optional protocols, as well as the African Charter on Human and Peoples Rights (also assume that the

Optional Protocol to the Committee on Economic, Social, and Cultural Rights has entered into force).

Ms. Chipo Machona Location of Zimbabwe

The Farm Where Ms. Mashona Once Lived The Slum Where Ms. Mashona Lived


Review the information provided on the following pages about the fictitious case about a detention

center on the Isla del Perejil.

Facts

Moazzam Ghezali (a fictitious person) is a citizen of Finland (of Moroccan origin). He was taken into

custody in Stockholm, Sweden by local authorities and immediately turned over to agents of the

Spanish government. Spain believes Mr. Ghezali is a terrorist who has organized the bombing of a

nightclub in Berlin in which five Spanish military personnel were wounded.

He was brought to a recently-built prison on the island of Isla del Perejil. This island is very small,

located nearly 14 km from the Spanish mainland and only 250 meters from the Moroccan mainland.

The island is claimed by both Spain and Morocco.


P a g e | 44

Since his arrival on Perejil, Mr. Ghezali has been dressed in a manner that deprives him of sensory

perception (see photo below). He is kept in a two meter by two meter jail cell 24 hours per day. High-

intensity lights in and around his cell are kept on 24 hours per day. Loud music and noise is played

intermittently at random times and lengths. Mr. Ghezali is not allowed any contact with anyone else.

He is fed nutritious meals three times per day. His cell is sheltered from the rain, but temperatures

often become chilly, although never below 10 degrees Celsius.

On regular occasions, he is brought to an interrogation room where he is asked a number of questions.

His interrogator yells at him, but never threatens to hurt him and never hits him. On one occasion, he

was strapped to a board and water poured over his head until he answered the questions asked of him.

As Mr. Ghezali‘s brother, these facts were related to you in a letter

Isla del Perjila

”Waterboarding”

A Prison Cell on Isla del Perejil

Treatment of Prisoners


P a g e | 45

GROUP EXERCISES

As a member of the team to which you are assigned, complete the exercise which corresponds to your

team number.


discussions must be in English. Each team must choosing a ‗lead counsel‘ who will lead the team

presentations and rebuttals during the in-class exercise. Other team members should still verbally

participate—the lead counsel role is simply to have someone in charge during discussions. (Each

student will have an opportunity to be a lead counsel during the course.)

Following a period of discussion, each team will present an opening argument of ca. 5 minutes. Each

team will then have a rebuttal period to each others presentations. Thereafter, there will be a rebuttal

period. Any student may pose questions to the two teams. The presiding ―judge‖ may ask a question at

any time.. In the arguments, attempt to utilize as many terms as possible that were discussed in class.

ORAL EXERCISE A

With reference to practical exercise A, consider that the case has come before the Committee on

Economic, Social and Cultural Rights.

Team #1:

As representatives of Ms. Chipo Mashona, argue the case claiming that Ms.

Mashona‘s rights have been violated and Zimbabwe is obligated to act in a

particular way toward her.

Team #2: As representatives of Zimbabwe, argue the case claiming that Zimbabwe has not

violated any obligations toward Ms. Mashona.

ORAL EXERCISE B

With reference to practical exercise B, consider that the issue has been raised in a special session of

the Human Rights Council. The Council is debating whether the treatment of Mr. Ghezali is torture or

in some other way has violated international law.

Team #3:

As representatives of the Kingdom of Morocco, argue to the Council that the

treatment of Mr. Ghezali is torture. Feel free to raise any other issues related to

this incident that might enhance your argument or bolster any other political

objectives.

Team #4: As representatives of the Kingdom of Spain, argue to the Council that the

treatment of Mr. Ghezali is not torture. Assert any justifications that you can

imagine why the treatment is justified.


P a g e | 46

WRITTEN REVIEW

1. Write short definitions for each of the following terms, as they relate to human rights

mechanisms:

Organ:

Body:

Treaty-based Mechanism:

Charter-based Mechanism:

Sovereignty:

Respect, Protect, Fulfill:

2. Match each of the terms on the left (from normal domestic law terminology) with the term on

the right (from international human rights law terminology) which has the most similar

meaning.

Judgment

Author

Defendant

Committee Member

Remedy

Referral to Another Legal Body

Judge

View

Plaintiff

Admissibility

Jurisdiction

State Party

3. Explain the differences between an ‘expert body’ and a ‘political body.’ Who makes up each

of these ‘bodies’? What are their respective strengths? What are their respective weaknesses?

Are either or both an effective limitation on sovereignty?


P a g e | 47

TERMINOLOGY LIST


1. Competing rights:

2. Impart information:

3. Receive information:

4. Opinion or Belief:

5. Manifest opinion or belief:

6. Active freedom:

7. Passive freedom:

8. Public sphere:

9. Private sphere:

10. Marketplace of ideas:

11. Reputation:

12. Provided by law:

13. Necessary:

14. Proportionate:

15. Legitimate:

16. Incitement:


P a g e | 48

READING ASSIGNMENT

Student Display of the Confederate Flag in Public Schools

By Michael J. Henry

Journal of Law and Education (1 October 2004) Few symbols of American history are as controversial as the Confederate Flag. For some, the

Confederate Flag has come to embody our nation's painful history of racism and the subordination of

African Americans. For others, the Confederate Flag symbolizes a unique pride in Southern history

and lifestyle.

The divisiveness regarding the interpretation of the Confederate Flag has in the past caused

considerable racial tension and hostility. American schools have not been spared from this hostility.

Consequently, many schools have chosen to outlaw the display of the Confederate Flag as a means of

promoting school safety. As a result, in recent years the courts have been forced to confront the

difficult issue of whether schools may constitutionally ban the display of the Confederate Flag. This

Chalk Talk will not only discuss these cases, but also argue that school policies banning the

Confederate Flag are appropriate ways to deal with the racial hostility surrounding the Flag.

I. Regulation of Student Speech in Schools

The premier case dealing with the bounds of student speech in schools was Tinker v. Des Moines.1

Tinker involved a situation where high school students were reprimanded for wearing black armbands

to school in protest of the Vietnam War.2 The school argued that its actions were a reasonable attempt

to prevent disturbances that would be caused by the students' armbands.3 In holding that the school's

actions violated the students' freedom of expression, the Supreme Court stated that schools have the

comprehensive authority to regulate and control students' conduct in schools.4 Freedom of speech

does not allow students to engage in behavior that disrupts class work or creates substantial

disturbances.5 However, students do not lose all of their free speech rights once they enter school

doors.6 In order for a school to constitutionally ban particular expressions of opinion, it must be able

to show that the expression would "materially and substantially interfere with the requirements of

appropriate discipline in the operation of the school."7 Applying these standards, the Court determined

that the students' armbands did not present any serious or substantial threat of disruption. In striking

down the school's action, the Court stated, "undifferentiated fear or apprehension of disturbance is not

enough to overcome the right to freedom of expression."8 In other words, in order for a school to

constitutionally ban a particular kind of student speech, the school must be able to show evidence that

this type of speech has caused disruption in the past.

The Supreme Court later developed a balancing test to determine the constitutionality of school

regulation of student speech. In Bethel School District v. Fraser, the Supreme Court stated "the

undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be

balanced against society's countervailing interest in teaching students the boundaries of socially

appropriate behavior."9 In Fraser, a student was punished for making lewd and sexually offensive

statements at an assembly while nominating a classmate for a student elective office. The Court

determined that, due to the "slight social value" of the student's statements, the school's interest in

protecting students from exposure to vulgar expression outweighed the student's interest in freedom of

expression.10


P a g e | 49

II. The Confederate Flag Cases

Since the late 1990's, federal courts have heard several cases involving students displaying the

Confederate Flag at school. The first time a federal court heard this issue was in Melton v. Young.11

In that case, a student was suspended for wearing a jacket with a Confederate Flag emblem on one

sleeve.12 The student defended his actions by saying that he was merely demonstrating pride in his

Confederate heritage.13 The Sixth Circuit upheld the suspension, saying that the school's tense racial

history surrounding display of the Flag was much more that the "undifferentiated fear or apprehension

of disturbance" from Tinker.14 Due to the prior disruptions involving the Flag, the school had reason

to foresee that further display of the Flag could lead to further disruptive conduct.15

No federal court dealt with this issue again until 1997 in Phillips v. Anderson County School

District.16 The facts of Phillips were virtually identical to those of Melton; a high school student was

suspended for refusing to remove a jacket bearing a Confederate Flag.17 The District Court upheld the

suspension, saying that although in this particular instance the Flag did not cause any disruptions,

because of the school's history of disorder resulting from the display of the Flag, the school could

reasonably believe that it could "substantially interfere with the work of the school or impinge upon

the rights of other students."18

The Tenth Circuit dealt with the Confederate Flag issue in West v. Derby Unified School District.19

This case was factually different from Phillips and Melton in that, rather than wearing the Flag, the

student merely drew a picture of the Flag on a piece of paper after a dare from another student.20 It

was undisputed that the student never intended to harass any other student; it was merely a dare.21

The Tenth Circuit, applying the same reasoning as Melton and Phillips, held that regardless of the

student's intent, the school's prohibition on the display of the Flag was constitutional due to the past

incidents at the school involving the Flag.22

The Eleventh Circuit addressed the Confederate Flag issue in Denno v. School Board of Volusa

County.23 A student that was a Civil War enthusiast was suspended for showing his friends a

Confederate Flag while leading a discussion on Southern history.24 The Eleventh Circuit upheld the

suspension, although it chose to use the balancing test from Fraser. The court stated that one of a

public school's missions was to "teach students of different races, creeds and colors to engage each

other in civil terms" rather than in offensive or threatening terms.25 The court determined that the

school's interest in teaching the boundaries of socially acceptable behavior outweighed the student's

freedom to advocate controversial views.26

The last Flag case is the only one where the court ruled in favor of the student over the school board.

In Castorina v. Madison County School Board, two students were punished for wearing Hank

Williams, Jr. t-shirts that pictured two Confederate Flags.27 The students claimed they wore the shirts

in commemoration of Hank Williams, Sr.'s birthday and "to express their southern heritage."28 In

holding for the students, the Sixth Circuit focused on the fact that the school only prohibited display of

the Confederate Flag and allowed students to display other potentially disruptive symbols, like the "X"

associated with Malcolm X.29 The court stated that this amounted to an unconstitutional viewpoint-

specific ban on certain racially sensitive symbols and not others.30 Further the school board did not

show any kind of history of turmoil surrounding the Flag that would justify the belief that future

display of the Flag would lead to disruption.31

III. Are School Policies Banning the Confederate Flag an Appropriate Way to Deal With this

Issue?

There has been considerable debate over whether anti-harassment policies are the proper way to

address the controversy surrounding the Confederate Flag. Some scholars have suggested that the best

way to deal with the tensions surrounding the Flag is to subject the issue to "open dialogue" in the

schools rather than banning the Flag. Proponents of this approach believe that open dialogue is the

only way to fix this problem and still preserve students' First Amendment rights.32 There is certainly


P a g e | 50

an appeal to this solution. If the open dialogue approach is successful, both sides of the controversy

would hopefully better understand each other's viewpoints and be more considerate of them.

However, in order for open dialogue to work, all of the participants must feel equally empowered to

voice their opinions. There must be a "free trade in ideas" for open dialogue to be successful.33 In

reality, there are substantial inequalities for minorities in this "marketplace of ideas."34 Due to years

of subordination, many minority students have learned to suppress their opinions as a means of

survival.35 As a result, there is a reduced likelihood that "all facts and interests relevant to the

problem" will be "fully and fairly represented."36 In the end, all that the open dialogue approach

exposes is the opinions of those displaying the Flag, not the opinions of those opposing it. This is far

from the well-rounded discussion that proponents of open dialogue advocate.

Furthermore, it is unrealistic to believe that public schools have the time or resources to institute

forums of open dialogue. Because public schools are commonly judged according to standardized test

scores, schools are forced to devote every second of every day to core curriculum. As a result, schools

have become more regimented and simply do not have the time to create discussion forums on issues

like the Confederate Flag. Schools are left with the choice of either devoting less time to core

curriculum and taking the chance of having lower test scores or spending all of their time on core

curriculum and devoting no time to student discussion forums. Understandably, schools have chosen

to devote all of their time to core curriculum.

While promoting students' First Amendment rights is a key mission for our schools, there are other

interests that support anti-harassment policies that ban the Flag. Another important mission for schools

is to teach students the bounds of socially acceptable behavior.37 Schools have a duty to "teach

students of different races, creeds, and colors to engage each other in civil terms."38 These anti-

harassment policies are a good way to show students that some symbols, like the Flag, are both

threatening and offensive to others. They promote awareness and consideration of other people's

feelings.

Schools also have an interest in providing a learning environment that is free from serious

disruption.39 The Supreme Court stated in Tinker that freedom of speech does not allow students to

engage in behavior that disrupts class work or creates substantial disturbance.40 The central purpose

of any school is to educate students and serious disruptions inhibit the educational process. It is

painfully obvious from the Flag cases that the controversy surrounding the Flag has led to numerous

disruptions and altercations. In Melton, the use of the Confederate Flag as a school symbol led to

serious demonstrations at school.41 Tensions were so high that a town curfew was imposed.42 In

Phillips, students wearing clothing depicting the Flag led to several altercations, one of which erupted

into violence.43 In West, there were also several confrontations over students wearing the Flag, at

least one of which resulted in a fight.44 Clearly, schools that have a history of trouble surrounding the

Flag have an interest in prohibiting its display as a means of preventing disruptions.

However, as the 6th Circuit stated in Castorina, a school must be able to show facts supporting its

opinion that the Flag is disruptive. Without such facts, the policy would amount to the

"undifferentiated fear or apprehension of disturbance" of which the Supreme Court warned in

Tinker.45

IV. Conclusion

Although the majority of courts addressing the issue of student display of the Confederate Flag have

upheld school policies banning display of the Flag, there is still a considerable amount of turmoil over

whether these anti-harassment policies are the proper way to address this issue. However, these

policies are beneficial and effective in that they both teach students to treat each other with respect and

prevent serious disruptions that would inhibit the educational process. As a result, these policies

promote a nurturing environment that is more conducive to learning.


P a g e | 51

FOOTNOTES

1. 393 U.S. 503 (1969).

2. Id. at 503. 3. Id. at 508.

4. Id. at 507. 5. Id. at 513.

6. Id. at 506.

7. Id. at 509. 8. Id. at 508.

9. 478 U.S. 675 (1986).

10. Id. at 685. 11. 465 F.2d 1332 (6th Cir. 1972).

12. Id. at 1334.

13. Id. 14. Id. at 1335 (citing Tinker, 393 U.S.

at 508).

15. Id.

16. 987 F. Supp. 488 (D.S.C. 1997).

17. Id. at 491.

18. Id. at 491 (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266

(1988)).

19. 206 F.3d 1358 (10th Cir. 2000).

20. Id. at 1363.

21. Id. 22. Id. at 1366.

23. 218 F.3d 1267 (11th Cir. 2000). 24. Id. at 1270.

25. Id. at 1273.

26. Id. at 1275. 27. 246 F.3d 536, 538 (6th Cir. 2001).

28. Id.

29. Id. at 541. 30. Id. at 544.

31. Id.

32. For an in-depth discussion of this viewpoint, see Dyer, The Banning of

Confederate Symbols in Public

Schools: Preventing Disruption or

Avoiding Discomfort?, 125 Ed. Law

Rep. 1019 (1998).

33. Cammack and Davies, Should Hate Speech Be Prohibited in Law Schools?,

20 S.W. U. L. Rev 145, 162 (1991).

34. Id.

35. Lawrence, If He Hollers Let Him

Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 453-454

(1990). 36. Id.

37. Fraser, 478 U.S. at 681 (1986).

38. Denno, 218 F.3d at 1273 (11th Cir. 2001).

39. Tinker, 393 U.S. at 513 (1969).

40. Id. 41. Melton, 465 F.2d at 1333 (6th Cir.

1972).

42. Id. 43. Phillips, 987 F. Supp. at 490

(D.S.C. 1997).

44. West, 206 F.3d at 1362 (10th Cir.

2000).

45. Tinker, 393 U.S. at 508 (1969).


P a g e | 52

SUMMARY OF THE LAW

International Covenant on Civil and Political Rights

(Entry into force 23 March 1976)

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek,

receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing

or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and

responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are

provided by law and are necessary:

a) For respect of the rights or reputations of others;

b) For the protection of national security or of public order (ordre public), or of public health or

morals.


P a g e | 53

PRACTICAL EXERCISES

PRACTICAL EXERCISE A

Review the information provided in the following pages concerning the fictitious case of Jose

Rodriguez v. the United States of America. Analyze the case from a human rights perspective on the

freedom of expression. Has the United States violated Article 19 (1) or 19 (2)?

Jose Rodriguez is a wheat farmer from Mexico (the United Mexican States). On 1 January 1993, all

Mexican tariffs on wheat were lifted pursuant to the North Atlantic Free Trade Agreement. Since then,

USA-based large farms have sold wheat in Mexico for much less than Mr. Rodriguez received prior to

1993. As a result, Mr. Rodriguez has been unable to make enough money to pay the US-based-bank

loan against his farm and the bank has repossessed his property. There are few, if any, job prospects

for Mr. Rodriguez in Mexico so he has migrated north to Southern California to work as a gardener.

Before finding a job, however, Mr. Rodriguez was arrested by US authorities and placed in an illegal-

immigrant detention camp. For the most part, the ‗camp‘ resembles a prison with high walls and

barbed wire fence. Inmates at the ‗camp‘ are not allowed to leave and visitors are allowed only once

per week in a visitor‘s room. All inmates receive sufficient nutrition and are housed in dormitories of

25 people per room. In the ‗camp‘ are men, women, and children.

Release from the camp is granted in two circumstances. First, following an immigration hearing

(which can take years to be accomplished), the inmate is deported to Mexico. Second, the inmate is

granted temporary and conditional residency in the USA following demonstration by the inmate that

he/she is of no danger to the national security of the United States. To demonstrate this, each day for at

least one year the inmate must recite an oath swearing allegiance to the United States. Inmates who

recite this oath are granted certain benefits during their detention, such as better food and bathing

facilities, private living quarters, and a faster decision on their case. Inmates who refuse to give the

oath are penalized with worse conditions.

Mr. Rodriguez refused to recite the oath, citing that he intended no ill will toward the United States but

that he owed his allegiance to Mexico. After three months of refusal, Mr. Rodriguez was placed in

solitary confinement.

In response, Mr. Rodriguez began a hunger strike. Other inmates learned of his strike and also began a

hunger strike, as well as daily speeches and demonstrations about the conditions at the ‗camp.‘ To

return the situation to normal and citing the health and welfare of the other inmates (especially the

children), the USA authorities moved Mr. Rodriguez and all other hunger strikers to a different facility

with more strict regulations and even worse conditions.


P a g e | 54

The Immigration Detention Facility

Dormitory Rooms ‗Private‘ Rooms

Families on their way to Recreation

Jose Rodriguez in Solitary Confinement


P a g e | 55


Review the information provided on the following pages about the case of the ―Mohammed

Cartoons,‖ which are supplemented by a simplification of the position of the government of Denmark,

quoting the Prime Minister from public statements. Analyze the case from a human rights perspective

on the freedom of expression. In your opinion, should the cartoons have been limited pursuant to

CCPR, Art. 19 (3)?

The ―Mohammed Cartoons‖ were first published in the Danish newspaper Jyllands-Posten on 30

September 2005. They are reprinted in their original publication format on the following page. There

appeared the following text in the original editorial:

―The modern, secular society is rejected by some Muslims. They demand a special position, insisting

on special consideration of their own religious feelings. It is incompatible with contemporary

democracy and freedom of speech, where you must be ready to put up with insults, mockery and

ridicule. It is certainly not always attractive and nice to look at, and it does not mean that religious

feelings should be made fun of at any price, but that is of minor importance in the present context. [...]

we are on our way to a slippery slope where no-one can tell how the self-censorship will end. That is

why Morgenavisen Jyllands-Posten has invited members of the Danish editorial cartoonists union to

draw Muhammad as they see him. [...]‖

This was supplemented at a later time by the following explanation by the newspaper editor:

―The cartoonists treated Islam the same way they treat Christianity, Buddhism, Hinduism and other

religions. And by treating Muslims in Denmark as equals they made a point: We are integrating you

into the Danish tradition of satire because you are part of our society, not strangers. The cartoons are

including, rather than excluding, Muslims.‖

On 27 October 2005, a number of Muslim organizations (including the complainants) filed a

complaint with the Danish police claiming that Jyllands-Posten had committed an offence under the

Danish Criminal Code, section 140 (blasphemy) and 266b (insult, threat or degradation by public and

malice attacks based on race, color of skin, national or ethnic roots, faith or sexual orientation).

On 6 January 2006, the Regional Public Prosecutor in Viborg discontinued the investigation as he

found no basis for concluding that the cartoons constituted a criminal offence. His reason is based on

his finding that the article concerns a subject of public interest and, further, on Danish case law which

extends editorial freedom to journalists when it comes to a subject of public interest. He stated that, in

assessing what constitutes an offence, the right to freedom of speech must be taken into consideration.

He stated that the right to freedom of speech must be exercised with the necessary respect for other

human rights, including the right to protection against discrimination, insult and degradation, but no

apparent violation of the law had occurred. In a new hearing, the Director of Public Prosecutors in

Denmark agreed.

The Muslim organizations now bring a case to the Human Rights Committee. They allege that the

cartoons are Islamophobic, racist, and blasphemous to people of the Muslim faith. They further claim

that they were published with the intent to humiliate a Danish minority.

The government of Denmark has responded to the complaint, stating that, ―The freedom of expression

has a wide scope and the Danish government has no means of influencing the press. Danish legislation

prohibits acts or expressions of blasphemous or discriminatory nature. The offended party may bring

such acts or expressions to court, and it is for the courts to decide in individual cases.‖


P a g e | 56


P a g e | 57

GROUP EXERCISES

As a member of the group to which you are assigned, complete the exercise which corresponds to your

team number.


discussions must be in English. Each group must choosing a ‗lead counsel‘ who will lead the group

presentations and rebuttals during the in-class exercise. Other group members should still verbally

participate—the lead counsel role is simply to have someone in charge during discussions. (Each

student will have an opportunity to be a lead counsel during the course.)

Following a period of discussion, each group will present an opening argument of ca. 5 minutes.

Thereafter, there will be a rebuttal period where any student may pose questions to the two groups.

The presiding ―judge‖ may ask a question at any time.. In the discussions and arguments, attempt to

utilize as many terms as possible from this chapter.

ORAL EXERCISE A

With reference to Practical Exercise A, consider that the matter was brought to the Human Rights

Committee of the Covenant on Civil and Political Rights.

Group #1:

As a representative of Jose Rodriguez, argue that his freedom of expression was

violated by the United States (especially Article 19 (1)).

Group #2: As a representative of the United States, argue that there is no violation of the

freedom of expression (especially Article 19 (1)).

ORAL EXERCISE B

With reference to Practical Exercise B, consider that the the matter was brought to the Human Rights

Committee of the Covenant on Civil and Political Rights.

Group #3:

As a representative of the Muslim organizations, argue to the Human Rights

Committee that the cartoons are a violation of the Covenant on Civil and

Political Rights.

Group #4: As a representative of the Kingdom of Denmark, argue to the Human Rights

Committee that the cartoons are not a violation of the Covenant on Civil and

Political Rights.


P a g e | 58

WRITTEN REVIEW

1. Write short definitions for each of the following terms, as they relate to freedom of expression:

Necessary:

Provided by Law:

2. Match each of the freedoms on the left with the activity on the right which best describes its

content.

Practice a religion, such as praying

Freedom of Opinion

Seek information about the meaning of life

Freedom of Information

Believe that 1+1=3

Freedom to Manifest Opinions

Listen to NRK Nyheter on the radio

Freedom of Expression

Impart information that the world will end soon

A ‗journalist‘ from Se og Hør demanding the name

of a Norwegian soldier killed in combat

3. Circle the appropriate term to denote whether each photo demonstrates active freedom or

passive freedom.

Left: Students in a

lecture hall learning

about physics

Right: Martin Luther King,

Jr. speaking in Washington,

D.C in 1963

ACTIVE or PASSIVE ACTIVE or PASSIVE

4. Circle the appropriate term to denote whether each photo demonstrates a freedom in the

public or the private sphere.

Left: Protestors in Seattle

Against the WTO (see Hickey v.

City of Seattle (2004)

Right: Praying in one’s

own bedroom

PUBLIC or PRIVATE PUBLIC or PRIVATE

by richard hustad - uio.no · the idea of the nation-state, wherein this one-to-one relationship...

Documents