Sunday, February 26, 2006

Izjava tedna - Statement of the week

Nespoštovanje mednarodnih obveznosti se v Srbiji nadaljuje na takšen ali drugačen način.

Srbska radikalna stranka, hkrati največja stranka v srbskem parlamentu, je pozvala Ratka Mladića in Radovana Karadžića naj se ne predata Haagu. Predsedniku te stranke, Šešelju, je očitno že žal, da se je prostovoljno predal Haagu.

Na včerejšnjem mitingu v Beogradu je namestnik predsednika te stranke, Tomislav Nikolić, izjavil sledeče:

- Dolazili su nam ovih dana neki u stranku i pitali koliko ćemo ljudi izvesti na ulice ako Mladić bude izručen tribunalu, a ja sam im rekao - dođite u petak na miting pa ćete videti koliko. A sad pitam zašto već ne počnu u Hagu sa suđenjem našem predsedniku Vojislavu Šešelju, i kažem - zato jer se plaše, jer nemaju ni optužnicu niti imaju šta da mu dokažu. Ali ne plaši se toga toliko Karla del Ponte, koliko Vojislav Koštunica i Boris Tadić, koji znaju da slede izbori, da će radikali osvojiti vlast i da će se prestati sa izdajom, mitom i korupcijom

Obenem je generalni sekretar stranke Aleksandar Vučić dodal, da:

- Šešelj u Hagu ne brani sebe, već Srbiju, da se "bori za slobodu Srbije i da mi treba da mu pomognemo -

Sprašujemo se kdaj bo ta narod dokončno prevzel kolektivno krivdo za genocid, etnično čiščenje in zločine pri človečnosti na Hrvaškem, Kosovu, Bosni in Sloveniji? Kdaj bodo njihovi voditelji priznali invidualno kazensko odgovornost za vse grozote? Nihče drug jim ne bo skopal brezihodno jamo kot oni sami, pri čemer pa se lahko do katarze dokopljejo samo tako, da objektivno obračunajo s pretektlostjo in tudi sedanjostjo.

Friday, February 24, 2006

Qualite des Etudes du Droit en Slovenie

Nous sommes tres fiers d'avoir de la chance vous informier que Jernej Letnar et Matej Avbelj ont publie un Article dont le magazine Slovene "Ampak" sur de la Qualite des Etudes du Droit en Slovenie.

L'Article pourait etre disponible sur l'internet www.ampak.si. Si non, on doit l'achter, evidemment.

Thursday, February 23, 2006

Dubai Port Authority as a Trojan Horse for the US Democrats

The incumbent US government recently approved the sale of a British company that currently manages the ports to state-run Dubai Ports World, which would under the deal win managment control of 50 ports wordwide, including 5 major ports on the East coast of the United States. According to the agreement Dubai Ports World would handle shipping arrivals, departures, unloading at the docks and many security-related functions, whereas US federal government would oversee those security operations. However, Democrats and many Republicans who remain skeptical of a United Arab Emirates company playing such a central role at sensitive entry points in the United states. They also came up that some of the hijackers involved in the Sept. 11, 2001, terrorist attacks used the United Arab Emirates as an operational and financial headquartes, but they forgot to tell nobody of this persons came out of Emirate Dubai.

After this news came out, Democratic and also senior Republican Senators, who face reelection campaigns later this year, threatened to introduce legislation to delay the takeover if Bush does not act quickly prevents take over. Lets ask ourselves what are democrats trying to bring accross here? It is known that American trust the Bush administration on national security questions, and hardly possible to see any prospects for swing in other direction on the next elections in the automn. They should rather concentrate on domestic issues such health and social security system if they want to gain some more seat in the Congress later this week. At the end why Dubai companyshould not manage ports in the United States since it does so sucessfully in over twenty other world ports.

Wednesday, February 22, 2006

Črni scenarij? Še pomnite gospod Hribar?

Danes je bil uradno za kardinala Rimokatoliske cerkve izbran tudi slovenski skof Franc Rode. S tem je bil narejen se en korak k crnemu scenariju, ki ga je pred leti, prav pred nekimi volitvami, ko je tudi tedanji predsednik Slovenije Milan Kucan zatrdil, da bo kandidiral na volitvah le za to, da prepreci ponovno ozivitev fasizma na Slovenskem. Dr. Hribar, filozof, ki smo mu v tem blogu ze namenili castno mesto izjave tedna, je tedaj kot crni scenarij orisal tole trojko: Jansa premier, Jambrek predsednik, Rode kardinal. Samo se dr. Jambrek mora narediti kljucni korak in kolaps bo tu.

Lepo bi bilo slisati, kaj o tedanji svoji izjavi meni dr. Hribar.

A Ugandan "man of the people" with wide-brimmed safari hat

Uganda was only decade ago praised by everyone from US's former president Bill Clinton to South Africa's former president Nelson Mandela as the continent's success story. It was thought Uganda future was going to be different. Not quite. Ten years down the line not much have changed for better. Civil society is alive, but not flourshing, primary education is not free and tailored after World Bank's proposals, war in north is still raging, children as still being kidnapped into slavery by Lords Resistance Army and indeed President is the same as it was then. In fact he changed the Constitution to allow him to run for third term of office.

"African leader should not stay in office more ten years" said Ugandan President Museveni 10 years ago. However, After 20 years in power, Museveni changed his mind and constitution. With the term limits now gone, he says he hopes to stay in power until 2013, a total of 27 years. It is a fact that most of the African leaders have had such a habit of clinging to power.

Uganda is nowadays in disarray, the incumbent government controls only half of the territory, the other northern part is controled by rebel group Lords Resistence Army (LRA) who advocates for living according 10 commandments with instant murders, totrutre and ethnic cleasing. The rebel group has become notorious for kidnapping children into slavery and mutilating civilians. The war in norther Uganda rages already for 20 years country's brutal 20-year war in the north, where LRA has driven more than 1.6 million people off their farms and left tens of thousands dead.

There is no need for Ugandans to call Museveni a president when he is reality self-proclaimed king. What kind of the message is he sending to the rest of Africa? Once his wide-brimmed safari hat, his modest ranch and his beloved cattle, stood for something - better future and progress - but now... However, one may add than Uganda has quite strong democratic institutions such as courts, a constitution, a more or less free press.

Dworkin on Cartoons and Holocaust Denial

Just recently Ronald Dworkin has spoken out about the cartoons that caused such a furry in the Muslim world. The following is the excerpt from his comment "Even bigots and Holocaust deniers must have their say" for the English newspaper The Guardian:

"The British media were right, on balance, not to republish the Danish cartoons that millions of furious Muslims protested against in violent and terrible destruction around the world. Reprinting would very likely have meant more people killed and more property destroyed. It would have caused many British Muslims great pain because they would have been told that the publication was intended to show contempt for their religion, and though that perception would have been inaccurate and unjustified the pain would nevertheless have been genuine. True, readers and viewers who have been following the story might well have wanted to judge the cartoons' impact, humour and offensiveness for themselves, and the media might therefore have felt some responsibility to provide that opportunity. But the public does not have a right to read or see whatever it wants no matter what the cost..." (Full Article is available at: http://www.guardian.co.uk/comment/story/0,,1709372,00.html)

Whatever you think of Dworkin in general and of this comment in particular you have to confess that he is making important and thought provoking points. I think I could go with him on his point about the Holocaust denial issue - especially in the light of the present bizzare case where an obscure English historian was convicted to 3 years imprisonment for the holocaust denial 16 years ago. The harm of this speech, in my view, is certainly not so great that a well ordered constitutional society could not fight against without oppressive means, i.e. by mere counter speech.

Finally, especially the ever silent intelligence of this blog is particularly invited to comment on this issue.

Tuesday, February 21, 2006

Major world crisis ahead?

The Laboratoire européen d’Anticipation Politique Europe 2020 now estimates to over 80% the probability that the week of March 20-26, 2006 will be the beginning of the most significant political crisis the world has known since the Fall of the Iron Curtain in 1989, together with an economic and financial crisis of a scope comparable with that of 1929. This last week of March 2006 will be the turning-point of a number of critical developments, resulting in an acceleration of all the factors leading to a major crisis, disregard any American or Israeli military intervention against Iran. In case such an intervention is conducted, the probability of a major crisis to start rises up to 100%.

What are the two characteristics of this crisis?
"As some insitutions claim, this crisis results from the analysis of decisions taken by the two key-actors of the main on-going international crisis, i.e. the United States and Iran:
- on the one hand there is the Iranian decision of opening the first oil bourse priced in Euros on March 20th, 2006 in Teheran, available to all oil producers of the region. Iran's opening of an Oil Bourse priced in Euros at the end of March 2006 will be the end of the monopoly of the Dollar on the global oil market. The immediate result is likely to upset the international currency market as producing countries will be able to charge their production in Euros also. In parallel, European countries in particular will be able to buy oil directly in their own currency without going though the Dollar. Concretely speaking, in both cases this means that a lesser number of economic actors will need a lesser number of Dollars. This double development will thus head to the same direction, i.e. a very significant reduction of the importance of the Dollar as the international reserve currency, and therefore a significant and sustainable weakening of the American currency, in particular compared to the Euro. The most conservative evaluations give €1 to $1,30 US Dollar by the end of 2006. But if the crisis reaches the scope anticipated by LEAP/E2020, estimates of €1 for $1,70 in 2007 are no longer unrealistic.

- On the other hand, there is the decision of the American Federal Reserve to stop publishing M3 figures (the most reliable indicator on the amount of dollars circulating in the world) from March 23, 2006 onward. Why is this important? Well, since printing paper money is nothing short of counterfeiting, the issuer of the international currency must always be the country with the military might to guarantee control over the system. This magnificent scheme seems the perfect system for obtaining perpetual wealth for the country that issues the de facto world currency. The one problem, however, is that such a system destroys the character of the counterfeiting nation’s people-- just as was the case when gold was the currency and it was obtained by conquering other nations. And this destroys the incentive to save and produce, while encouraging debt and runaway welfare.

The American and Iranian decisions coming into effect during the last week of March 2006, will catalyse and turn into a total crisis seven sector-based crises affecting the whole planet in the political, economic and financial fields, as well as in the military field most probably too: loss of confidence in the Dollar, explosion of the US financial imbalances, oil crisis, end of the global US leadership, distrust towards the Arab-Muslim world, inefficiency of the global governance, and uncertainties about the European governance... "

Taken from 2020 European Laboratory of Political Anticipation (www.europe2020.org/en/section_global/150206.htm)

Sunday, February 19, 2006

NYU Global Law School Goes Truly Global

NYU Global Law School has made a path-breaking step: it is to establish a joint LL.M Program in Asia with the University of Singapur. This is the first real move towards the globalization of education which will show the road of development of legal education in the future.

What is all about (for more details consult: http://www.nyulawglobal.org/graduateadmissions/singapore/index.htm, which is also the source of what follows)?

"In a move that will transform the very concept of global legal education, New York University School of Law (NYU) and the National University of Singapore Faculty of Law (NUS) have created a dual degree program in Asia's commercial and legal hub, Singapore.
Entitled NYU@NUS, this program will allow students from around the world to experience two educational universes, earning Master of Laws (LL.M.) degrees from both a leading U.S. institution and a leading Asian law school. A distinct feature of the NYU degree is that, whilst taking place in Singapore, the degree will be taught predominantly by NYU Faculty in residence at NUS. It is also envisaged that in keeping with the global orientation of the NYU@NUS program, there will be collaborative teaching between NYU and NUS Faculty. In addition to the academic program — in all respects as rigorous as its counterpart in New York — students will be able to opt for internships with Singaporean and other Asia-based law firms, as well as governmental and non-governmental agencies. After graduating, they may also choose to spend a further two months in New York taking a special course in American Lawyering."


The ratio of this joint enteprise is clear: it is advantageous for all those taking part: NYU is spreading its influence, Singapur is getting a superb squad of professors and students that might stay there and boost its economic and scientific development, students are experiencing the two economic metropolis in the world, they are acquiring knowledge of two crucial legal systems and above all they are creating a truely global network of people that might run the world in the decades to come.

What is the lesson that Slovenia should learn from this? This first of all shows how much we are lagging behind with the persistent monopoly on legal education and how the world currents of education are passing by us. If I was in the shoes of the Slovenian government today, I would immediately try to establish a contact with NYU in order to attract them and convince them to establish a similar educational center in Slovenia. It could serve as the European center as the one in Singapur serves as the Asian center.

Friday, February 17, 2006

Self-determination of peoples - Comments by Ms Fozia Lone

Fozia Lone is a Doctoral Research Student at School of Law, University of Aberdeen, f.lone@abdn.ac.uk. Fozia comes from Indian administered Kashmir region.

Dear Jernej, I generally agree with what you have mentioned especially your argument that other circumstances in which right to self-determination can be used must be developed, is persuasive. However, as has been mentioned that violation of human rights gives the right to exercise external self-determination is equally correct. In Bangladesh case it was the fact of repression rather then the fact that Bengalis were linguistically, ethnically and culturally different from Pakistanis, which ultimately vindicated the creation of Bangladesh as an independent state.

On the other hand Srdjan, comment that right to self-determination is disappearing from the vocabulary of the major political actors involved in the Kosovo crisis seems to be sound. However, Srdjan seems to ignore the fact that this notion of right to self-determination still exists in international law although is accompanied by the confusion as to its beneficiaries. Politicians, especially of countries who are caught in this identity crisis, generate a lot of this mystification. It is because politicians usually take contextual approach that suits them while discussing this concept and forget about its legal side. Additional problem has been caused by the ineffective drive to identify â€کpeople’ in international law, particularly in the post-colonial period. Further uncertainty crops up when the concept of right to self-determination is discussed in relation with other equally unclear notions like territorial integrity, derogation, and secession. This right has also suffered by the bewildering state practice, contradictory resolutions from international organisation, treaty laws that are poorly drafted without defining the central entity- â€کpeople’ and by the uncommunicative views of the courts.

While inquiring into the past parameters of self-determination it may appears that self-determination is only for decolonised people or non-self-governing states as pointed by Jernej. But how can we ignore the up and coming crises like Kosovo, Kashmir and Palestine, which need immediate indulgence. We cannot simply consent to let people suffer just because there is no international law that can be applied on them. Law has to change with the shifting time and same applies on the right to self-determination. Although there is no shortage of literature on various dimensions of self-determination but surprisingly enough there is the bizarre deficiency of wide-ranging legal narrative of this concept. This vacuum can be filled if this concept will be amending or clarified within international law otherwise it can soon be the â€کdead letter of past’. Therefore the time has arrived to make efforts to rotate this concept in a direction within international law so that International peace can be protected.

Thursday, February 16, 2006

European Court in Strasbourg does not find Czech Roma children victims of discrimination in Education

The European Court of Human Rights on 8 February delivered decision against 18 Roma children who had been forced to attend segregated schools in the Czech Republic. The case of D.H. and Others v. the Czech Republic was brought before the European Court of Human Rights in an effort to put an end to a widespread practice of discrimination throughout Central and South East Europe, where Roma children are routinely placed in schools for the mentally disabled regardless of their actual intellectual abilities. The panel of judges on the case, which included also Czech and Hungarian judges, voted six to one against.

The Court held that the setting and planning of the curriculum fell in principle within the competence of the State concerned. That mainly involved questions of expediency on which it was not for the Court to rule and whose solution might legitimately vary according to the country and the era. The Court continued that given States’ margin of appreciation in the education sphere, they could not be prohibited from setting up different types of school for children with difficulties or implementing special educational programmes to respond to special needs.

The Court suprasingly agreed with the Chech government argument that the system of special schools in the Czech Republic was not introduced solely to cater for Roma children and that considerable efforts are made in these schools to help certain categories of pupils to acquire a basic education. However, the Court disregarded the fact that in most of the special schools Roma pupils made up between 80% and 90% of the total numbers of the pupils. What kind of message is the ECtHr sending with this decision? It seems that message is that is OK to force Roma children to attend segrated schools, which are intended for the mentally disabled regardless of their intelectuall abilities. This decision is absurd and in total non-compliance with international human rights law and also EcHRT's Courts own jurisprudence.

In dissent, Judge Cabral Barreto of Portugal noted that the Czech Government had previously conceded that, at the time relevant to the applications before the Court, "Romany children with average or above-average intellect [we]re often placed in [special] schools on the basis of results of psychological tests"; "[t]he tests [we] reconceived for the majority population and do not take Romany specifics into consideration"; and in some special schools, "Romany pupils made up between 80% and 90% of the total number." Taken together, these concessions amounted to "an express acknowledgement by the Czech State of the discriminatory practices complained of by applicants.

In the light of all of this we are of the opinion that the judgment's narrow conception of discrimination is at odds with developments in much of intertnational community and it is not helpful for the state of human rights in Europe that Strasbourg Court submits that systematic racial segregation in Czech schools is OK.

Wednesday, February 15, 2006

Taking Peoples' Right to Self-Determination Seriously 2

Latest input on right to self-determination of peoples on the Transatlantic Assemblyweblog alas does not bring our discussion further since you more or less submit the arguments which were already given. Nevertheless, you may know that International Court of Justice in the West-Saharan Advisory Opinion defined self-determination as the need to pay regard to the freely expressed will of peoples. The same Court recognized it in South West Africa cases as one of the essential principles of international law. Later, in East Timor case ICJ once again confirmed the right of peoples to self-determination

You basically do not take in account the case law of ICJ and basic principles of international human rights law. Many scholars (Cassesse, Alfredsson, Schenin, Koskeniemi, Klabbers) have written on the topic of internal and external self-determination. My previous contributions argued that there is right to external self-determination everywhere basic human rights have been blatantly violated. I would accept if some would argue that this not the state of international law at this point of time since international law nowadys might only recognize the exercise of right to self-determination only in the context of decolonization (as in the case of Greenland and Faore Islands) and non-self-governing territories. But sure one may argue that international human rights law is developing towards greater accountability for human rights violations in nation states. Certainly international law and international community has in last decade showed more "humane face" as in the case of humanitarian intervention in Kosovo. The right of colonized peoples to self-determination is confirmed in the consistent practice of States and international organizations, including case-law ans is therefore beyond any doubt. However, other possible self-determination scenarios amy be considered, including liberation of occupied territories, the separation from a State with a non-representative government, and peoples who were subjected to gross human rights violations.

Tuesday, February 14, 2006

The Conundrum of the Piran Bay

We would like to inform our readers that Libertas Working Paper on "The Conundrum of the Piran Bay - Slovenia v. Croatia - The Case of Maritime Delimitation", written by Matej Avbelj and Jernej Letnar, was published at the following address: http://www.pravniinstitut.si/clanki/Piran_bay_Avbelj_Letnar.pdf

The authors in the final paragraph of the epilogue suggest that Slovenia and Croatia need to mind their common destiny in the EU of tomorrow and rely on the agreements already reached and should just declare the waters ranging from Vrsar to Debeli Rtič as their common waters, where common police control will be exercised, where EU exclusive policy will be implemented and where it will not matter whether the boat is under Croatian or Slovenian flag.

Monday, February 13, 2006

Haider as a "Jewel" for Slovene Minority in Austria

Known for his dubious statements about Jews and Slovene minority in Carinthia, his praise of Nazism, his embrace of former Iraqi leader Saddam Hussein, and for his personal charisma at least for Austrian people, far-right politician Joerg Haider, is a notorious follower of mockery and represents everything what Carinthia and Austria may be ashamed of. Facing political demise, only hate speech and hate action against Slovene minority in Austria may keep him in contention for Austrian election in September.

The history of Slovene minority in Austria may be read at http://www.uvi.si/eng/slovenia/background-information/minorities/austria/, but one needs to keep in mind that in 1941, the Nazis banned all Slovene ethnic minority organisations and formulated a comprehensive plan according to which Carinthian Slovenes would have to be removed from Carinthia, an action which would finally solve the Slovene question in Carinthia.

Some 3 years ago Austrian constitutional court reaffirmed the Article 7 of Austrian State Treaty and concluded that it is constituional to construct bilingual signs with the names of the cities in German and Slovene in those areas where the Slovene minority lives. However, Haider as Chancellor of Carinthia did not put this decision in practice and one week ago even removed the bilingual sign at entrance to Slovene village Pliberg in Carinthia.

Today he started collecting 15.000 signatures for holding a referendum whether Slovene minority is entitled to bilingual signs with the names of Slovene villages. Now it may be the right time that Austria lives up to its international and domestic human rights obligations and prevents hate acts against Slovene minority in Carinthia.

Saturday, February 11, 2006

Izjava tedna - Statement of the Week

Tine Hribar, Filozof, Intervju v Sobotni prilogi časnika Delo, 11.02.2006:

"Ves kompleks ljudi, ki so pokleknili pred partijo, je zato še vedno tu, tudi na univerzah, če ne drugače prek negativno selekcioniranih svojih naslednikov. Iz tega močvirja se nikakor ne moremo izkopati."

Tine Hribar, Slovenian Philosopher, in his Interview for the Saturday Addition to newspaper Delo, 11.02.2006:

"All this complex set of people that have bowed before the [communist] party is still here, including at the [Slovenian] universities, if not otherwise by the negative selection of their successors. This is a swamp which we can not escape no matter how hard we have tried."


Available at/Dostopno na: http://www.delo.si/

Friday, February 10, 2006

Začenjajo se zimske olimpijske igre v Torinu

Prve zimske olimpijske igre so začele leta 1924 v Chamonixu kot mednarodni športni teden, pri čemer jih je dve leti kasneje Mednarodni olimpijski komite (MOK) priznal kot prve zimske olimpijske igre.

Slovenski športniki so se udeležili že prvih iger, do leta 1988 so bili glavni predstavniki v vseh jugoslovanskih olimpijskih odpravah. Do sedaj so osvojili tri srebrne in pet bronastih medalj. Prvo medaljo za Slovenijo v zgodovini zimskih olimpijskih iger je leta 1984 v Sarajevu prismučal Jure Franko.

Olimpijske igre so simbol miru in spoštovanja med narodi, zato upamo da bodo potekale v prijateljskem vzdušju. Vsem slovenskim športnicam in športnikom želimo, da bi uresničili vse svoje cilje, ter da bi se domov vrnili prešerno razpoloženi.

Thursday, February 09, 2006

Reply to Avbelj and Cvijic

In follow-up to exchange between Srdjan Cvijic and myself, my dear friend Matej Avbelj offers a good starting point for discussion about future status of Kosovo. I presented all my main points at this moment in my Reply to Cvijic published on these pages. Many states strongly argue that right to self-determination falls into category of procedural rights, but this argument does not sustain since international human rights law clearly makes the case that peoples who have been subject to human rights atrocities, may exercise their right to self determination if the fulfil other necessary conditions. It is not for any state to decide who may or may not excersize right to self-determination, but decision lies with people in each case. I also join the reasoning of Hajredin Kuci in his article on Kosovo published in Chicago-Kent law review.

Reply to Letnar and Cvijic

In the, more or less, interesting exchange of arguments on the future status of Kosovo between my dear friend Jernej Letnar and dr. Srdjan Cvijic the authors seem to have succumbed too much to their feelings and have hence omitted a couple of important things and committed a couple of strange mistakes.

First about the methodology of the discussion: Letnar is being accused of pursuing moral analysis of international law, while Cvijic's analysis is purportedly a factual description and thus, we suppose so, an objective one. Yet, how in the world could that be? Both of the analyses are legal analyses and both are normative, despite the fact that Civijic is claiming factual descriptive approach. This is so, because there is no per se meaning of international law, as there is no per se meaning of any social concept, therefore factual analysis is normative as well.

Once we are aware of this, we have to ask which author has better justified his normative position, i.e. whose interpretation of international law on right to self-determination is more coherent with all things considered.

Cvijic's main argument is that there can be no exercise of right to self-determination within an existing state if the majority does not express its consent to the self-determination aspiring minority. Letnar's argument in turn is that this can not be so, if the majority violated fundamental rights of minority who therefore, out of this very reason, gains their right to self-determination as a result.

Both arguments are skewed, but Cvijic's more than Letnar's. For the following reasons: Cvijic's claim is simply pure contradictio in adiecto and denies the very essence of the right to self-determination. The minority which fulfills the conditions for the right to self-determination has the right to self-determination without the need to search for a consent from anyone, especially not from the majority from which it would like to separate itself. To allow the majority to decide on the fate of the minority in the issue of the right of self-determination, which is in other words the issue of the very existence of minority as an aspiring nation, is a fundamental denial of principle of equality (those who are less affected, decide on behalf of those whose very essence is in question). And once the right to self-determination is established it counts as ius cogens and erga omnes – it is inviolable and has to be observed by everyone (including the majority which would in Cvijic's view have the right to veto) and can be even claimed by a third party in favor of the minority-party whose right to self-determination is breached. (East Timor case).

However, the core question which needs to be posed is: what are the conditions for the existence and consequent exercise of the right to self-determination? It is at this point that Letnar's argument comes in. A persistent breach of the fundamental rights of the minority by the majority is certainly a compelling argument towards the fulfillment of conditions, but certainly not the only one as the practice all around the world shows. Community which claims the right to self-determination has to fulfill certain objective criteria: they have to be perceived by themselves and by the world as the people, the nation, this is fulfilled by the common history, language, culture… They have to live on the particular territory in an organized and united way – presumably being a majority of the inhabitants. They have to exercise control over the territory, etc, etc. If this territory is a part of the larger state structure where the majority in the entire state (as opposed to this particular territory) has for a very long time breached their fundamental rights – just because they are a different ethnic group – then this is another compelling reason towards fulfillment of conditions of the right to self-determinations, as I have already stressed.

Let us, finally, see if Kosovo and its people, the Albanians, fulfill these conditions. In my view they clearly do: they are particular ethnicity, with their own language, culture, history, etc. They are perceived as such by themselves as well as by the Serbs and the rest of the world. They form a big majority in a clearly defined territory, which is under their de facto control. They exercise local government, they have schools, universities. They have had all these for decades now. In fact and a fortiori they were even recognized as an autonomous region within Serbia in the times of YU which just strengthens their case. This autonomy was abandoned against their will in the time of Milosevic's totalitarian regime. But this was just an apex of the violations of their fundamental political as well as human rights that have lasted since the mid 80s (and were one of the reasons for the collapse of YU as such).

Having said that, in my normative view based on the coherent analysis of legal and factual practice there is not a single shadow of a doubt that Albanians in Kosovo have fulfilled the conditions for the right to self-determination. Serbia can have no say on that, if the right to self-determination is destined to have any sense.

But of course, for the pragmatic, political and long term stabilitiy reasons it would be good if the parties actually reached an agreement on the technical view of the exercise of this right. I guess all the three of us: Letnar, Avbelj and Cvijic would agree that this would be the best for the stability and peace in the region. Though, this is a very different issue from the one whether Kosovars have the right to self-determination and if Serbia should have a veto on it.

Maybe we all could also agree on that?

Taking International Human Rights Obligations and Right to External Self-determination more seriously: A reply to Srdjan Cvijic

Srdjan Cvijic, a member of always interesting weblog “Transatlantic Assembly” criticized and questioned my comment on his weblog on the future of Kosovo. This is my reply to his comment. More detailed analysis on the future of Kosovo will come in the next weeks, however that does not undermine my reply to Mr Cvijic.

Taking International Human Rights Obligations and Right to External Self-determination more seriously: A reply to Srdjan Cvijic

Dear Srdjan Cvijic,

I appreciate your reply to my comment regarding future of Kosovo and I always welcome free exchange of views on any topic. However, I cannot embrace your comments on most of points since are alas not objective and disregard the progressive development of international human rights law in the last decades.

You say that current Serbian/Yugoslav governments do no deny that the crimes against humanity were committed (which I never put forward if you read my contribution carefully), however they certainly have not done much in practice to bring the high profile perpetrators of heinous crimes to justice either before ICTY or before Serbian courts. Therefore I believe Yugoslav/Serbian governments are not taking their human rights obligations seriously. Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the former Yugoslavia, confirmed that in her address to the United Nations Security Council on 15 December 2005. She inter alia submitted that:

“Until recently, there was no political will on either of these parties to go aggressively after Karadzic and Mladic. At the rhetorical level at least, this has changed now, and there are numerous statements by Serb and Bosnian Serb political and even religious leaders saying that Karadzic and Mladic must be brought to The Hague. These intentions at the top have, however, not necessarily filtered through all the layers of the institutions involved. To sum up this most crucial issue, my main partners in the hunt for Karadzic and Mladic are now the Governments of Serbia and Montenegro and the relevant authorities of Bosnia and Herzegovina. The international community, through conditionality, is providing political incentives for the local authorities to arrest these indictees. On operational issues, however, the involvement of the international community has been minimal, at least over the past two years.

Serbia and Montenegro’s cooperation has, unfortunately, deteriorated in the past months. There is no serious, well-articulated action plan on the fugitives. Moreover, there is a lack of co-ordination between the State Union authorities and the two Republic’s Governments, and the rivalry between the involved agencies is palpable. The information passed to my Office is scarce and unconvincing. The Army of Serbia and Montenegro continues to hamper, both actively and passively, the co-operation of Serbia and Montenegro with the ICTY. Serbian civilian authorities admit today that the Army as an institution was protecting Ratko Mladic until as late as at least May 2002.”

You say that Serbia will have the final word on Kosovo gaining independence or not. Your argument is simply not feasible and not realistic and it resembles one of former Serbian government who advocated for eight years so in the UN that is the sole successor to former Yugoslav federation, whereas other republic of former Yugoslavia need to apply for UN membershi anew. That argument was not accepted by the international community and had not backing in international law and I believe that also this time around international community will not pay much attention to will of Serbian government if the potential referendum for Kosovo independence will show strong support for independent state.

In my first reply I submitted that everywhere where basic human rights have been violated and where international crimes have been committed, people may freely exercise right external to self-determination. This is basically argument which justifies the humanitarian intervention of NATO forces in Kosovo even tough it violated chapter 7 of UN Charter. The question poses itself what would have occurred if NATO would not have intervened? The answer may not be easy, but one can observe what kind of human rights violations are nowadays occurring is Darfur due to stalemate in the UN Security Council. You say that is a romantic approach to self-determination that belong to 19th century, by saying that you totally disillute and disregard the progressive developments in international human rights law in the last decades. Your conservative approach to human rights law belongs to relics of the 20th century. States are not the only participants in international community, the are plethora of actors such peoples who request that their rights are respected and exercised especially in the case of most blatant international crimes. The right of external self-determination is also set fort in a series of international instruments.

Your contribution wrongly asserts that right to self-determination is procedural right, when is in fact is not since it is based on merits or content of each specific case. It is submitted that gross human rights violations are one of reasons, which would justify the exercise of right to self-determination. It is argued that Kosovo falls in that category. It may be true that traditional understanding of international law would have precluded, the exercise of external right of self determination in case such as Kosovo but this approach is in my opinion totally outdated and has no basis on the ground where human rights violations are being committed. My argument regarding Kosovo is also strengthen since it is submitted that Serb/Yugoslav government has not will and is not competent at the moment to comply with the international human rights protection. Also the Kosovo authorities will need to ensure that rights of Serbian minority in Kosovo are protected in accordance with Council of Europe standards, when Kosovo become independent. International community would have to monitor the protection and observance of right Serbian minority in forthcoming decades.

As for your input that suggests that national assembly’s Indonesia gave consent to independence of East Timor, I argue that independence would be achieved any how due to strong support of international community. You may also consult case between Portugal v. Australia “East Timor” case before ICJ.

One can also rise example of dissolution of former Yugoslav federation which may be close your interest as it touches upon independence of Slovenia and Croatia. It is right that Serbia wanted to have final say on issue of dissolution or “separation of Slovenia and Croatia as former Milosevic government claimed” but things turned out differently, even tough at the time the road plan, which Yugoslav federal government and also regional Serbian government had in mind Slovenia and Croatia, were paved with good intentions, it fortunately did not end up in hell - at least for Slovenia.

For the fact that you say that the Slovene government and Prime Minister Janša “distanced” himself from president Drnovšek, I can only write that Slovenia has always willing supported Kosovo quest for independence and has indeed welcomed in the last decades (especially after the Balkan wars) a vast majority of Kosovars, Serbs and persons from other Republic of Former Yugoslavia people, who now form substantial Kosovo and Serbian ethnic minority in Slovenian. The discussion about the future of Kosovo and indeed Montenegro is very much needed in order to avoid escalation of new/old conflicts.

I like reading your blog and looking forward to future exchange between our blogs, especially since we come more or less from the same background.

Sincerely,
Jernej Letnar

Wednesday, February 08, 2006

A Toast to France Prešeren

Na današnji dan, se spominjamo 8. februarja 1848, ko je človeštvo izgubilo enega izmed svojih velikih mož in žena, slovenskega pesnika Franceta Prešerna, zato menimo, da je prav, da mu vsi skupaj nazdravimo z Zdravljico in se spomnimo nanj, kjerkoli že smo, in nam Slovencem zaželimo, v naslednji miljardi let še najmanj deset pesnikov takšnega kalibra kot je bil sam. Z njegovimi besedami "Nazadnje še, prijatlji, kozarce zase vzdignimo,ki smo zato se zbratli,ker dobro v srcu mislimo;dókaj dninaj živívsak, kar nas dobrih je ljudi!".

Today marks the day in honour of France Prešeren, so far the greatest Slovene poet and Vienna educated lawyer. His poetry is one of the pillars of Slovene language, literature and national identity. We invite to celebrate with us his Day by reading his poem Toast, which is also Slovene national anthem.

ZDRAVLJICA

Prijatlji! odrodile
so trte vince nam sladkó,
ki nam oživlja žile,
srce razjásni in oko,
ki utopi
vse skrbi,
v potrtih prsih up budi!

Komú narpred veselo
zdravljico, bratje! čmo zapét'!
Bog našo nam deželo,
Bog živi ves slovenski svet,
brate vse,
kar nas je
sinov sloveče matere!

V sovražnike 'z oblakov
rodú naj naš'ga treši gróm;
prost, ko je bil očakov,
naprej naj bo Slovencov dom;
naj zdrobé
njih roké
si spone, ki jih še težé!

Edinost, sreča, sprava
k nam naj nazaj se vrnejo;
otrók, kar ima Slava,
vsi naj si v róke sežejo,
de oblast
in z njo čast,
ko préd, spet naša boste last!

Bog žívi vas Slovenke,
prelepe, žlahtne rožice;
ni take je mladenke,
ko naše je krvi dekle;
naj sinóv
zarod nov
iz vas bo strah sovražnikov!

Mladenči, zdaj se pije
zdravljica vaša, vi naš up;
ljubezni domačije
noben naj vam ne usmŕti strup;
ker zdaj vaskakor nas,
jo sŕčno bránit kliče čas!

Živé naj vsi naródi,
ki hrepené dočakat dan,
ko, koder sonce hodi,
prepir iz svéta bo pregnan,
ko rojak
prost bo vsak,
ne vrag, le sosed bo mejak!

Nazadnje še, prijatlji,
kozarce zase vzdignimo,
ki smo zato se zbratli,
ker dobro v srcu mislimo;
dókaj dni
naj živí
vsak, kar nas dobrih je ljudi!


A Toast - Slovene National anthem

The vintage, friends, is over,
And here sweet wine makes, once again,
Sad eyes and hearts recover,
Puts fire in every vein,
Drowns dull care
Everywhere
And summons hope out of despair.

To whom with acclamation
And song shall we our first toast give?
God save our land and nation
And all Slovenes where'er they live,
Who own the same Blood and name,
And who one glorious Mother claim.

Let thunder out of heaven
Strike down and smite our wanton foe!
Now, as it once had thriven,
May our dear realm in freedom grow.
Let fall the last Chains of the past
Which bind us still and hold us fast!

Let peace, glad conciliation,
Come back to us throughout the land!
Towards their destination
Let Slavs henceforth go hand-in-hand!
Thus again
Will honour reign
To justice pledged in our domain.

To you, our pride past measure,
Our girls! Your beauty, charm and grace!
here surely is no treasure
To equal maidens of such race.
Sons you'll bear,
Who will dare
Defy our foe no matter where.

Our hope now, our to-morrow
- Our youth - we toast and toast with joy.
No poisonous blight or sorrow
Your love of homeland shall destroy.
With us indeed
You're called to heed
Its summons in this hour of need.

God's blessing on all nations,
Who long and work for that bright day,
When o'er earth's habitations
No war, no strife shall hold its sway;
Who long to see
That all men free
No more shall foes, but neighbours be.

At last to our reunion
- To us the toast! Let it resound,
Since in this gay communion
By thoughts of brotherhood we're bound.
May joyful cheer
Ne'er disappear
From all good hearts now gathered here.

Monday, February 06, 2006

It is high time that Denmark lets Greenland flourish freely

Greenland is the largest island in the world. Its northerly location, at the point where the Atlantic meets the Arctic Ocean, means that is very isolated. Although large in size, it is still colonized by tiny Denmark, the largest remaining power of once so mighty Western Europe. When the first settler in Greenland, Erik the Red, according to old Icelandic sagas, named the new country Greenland to attract other settlers there, he would not have imagined that the island would be in 2006 still under Danish Colonial Rule. Even though Greenland has had a home-rule government under normal Danish rule, like the Faroe Islands, we believe that is time for people of Greenland to excercise their right to self-determination under ICCPR and other international documents. Danish society has usually regarded itself as being pluralistic and democratic place, where conflict are being avoided at every level of society. However, it seems that Denmark has no shown any keenness to give up their largest and richest island in natural resources without decent diplomatic dispute. Greenlanders - the Inuit - deserve to call their country Kalaallit Nunaat, which means the land of the people, and to find their place in the international community of various actors.

Saturday, February 04, 2006

Freedom of Expression - a Case of Abuse?

The publication of cartoons of the Prophet Muhammad in a Danish newspaper which has caused a genuine outrage on a widescale in the Islamic world puts infront of us a set of very interesting questions. One of it is certainly whether in this case the boundaries of freedom of expression were transgressed or not? It might be a suprise for some, but we think they were.

The arguments for that can be located in the nature and purpose of this cartoon campaign as it is presently taking grounds all around Europe. The cartoons are objectively (extremely) offensive to the believers of Islam. They depict their prophet in a very violent way, clearly alluding to the (Islamic) terrorism. As it can be extracted from their appearance their (sole?) objective is to redicule and to insult the religious feelings and believes of those whose religion in fact prohibits depicting their god and their prophet.

But, if it stayed just with this and a set of cartoons being published just in one obscure newspaper of one of the Western Christian states, this would not be such a problem, because of its minimal scale and effect. And yet, what we face now is a concerted action on behalf of the European leading newspapers who are re-publishing these worthless cartoons in the name of freedom of expression.

This is in our view, politically, constitutionally and above all moraly gone way to far. The message that is namely being sent is that insulting religious feelings is completely ok, it is actually something which has to be shown solidarity to all around Europe.

Those who are taking part in this concerted enterprise are apparently not aware that they are deeply insulting also their fellow citizens in their homelands who are believers of Islam. This is not just a message, a provocation sent to those "obscure" peoples in the Middle East. And even if it was, it would not be permitted.

Europe and all these big newspaper publishers are forgetting the golden rule which dictates that we should not do to the other what we expect the other should not do to us. I am sure that nobody would stay calmly watching the cartoons of Jesus Christ being depicted in an utmost offensive way. The same is true if Jewish religious symbols would be tarnished - and this has been a long standing practice especially in Europe, which had well known terrible consequences and yet the practice is still not completely eradicated.

Religious believes are the most deeply seated convictions of a humankind. They can not be rationally proved since they belong to the world of metaphysics. However, they inform our rational leading of every day life activities - and they help us make sens of the world and of our very self. There is no possible rational discourse about religions, all we can do, when and if we disagree, is to show tolerance.

The concerted action of the European newspapers proudly publishing deeply offensive cartoons to one set of population, which is even a minority in Europe and therefore deserves a special protection, is denial of the very principle of tolerance and of the golden rule. But the same is true for the violent reactions of the populace of the Muslim world.

Standing on the opposite banks of the river and throwing stones at each other will not take us in a better future. Which can be only a common one, however.

International Court of Justice finds that it has no jurisdiction in Democratic Republic of the Congo v. Rwanda

In its yesterday’s judgment International Court of Justice found that it has no jurisdiction to entertain the application filed by the Democratic Republic of the Congo against Rwanda regarding armed activities on the territory of the DR of Congo. The Court firstly noted that it cannot consider any matter relating to the merits of the dispute between the Democratic Republic of the Congo (DRC) and Rwanda. It points out that, in accordance with the decision taken in its Order of 8 September 2002, it is required to address only the questions of whether it is competent to hear the dispute and whether the DRC’s Application is admissible.

DR of Congo in its attempt to find jurisdiction of ICJ, cited no less than eleven treaties as the basis for the ICJ's jurisdiction, but in vain. The Court concluded that none of the bases of jurisdiction put forward by the DRC can be upheld and that it therefore has no jurisdiction to entertain the application.

In similar case regarding Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the Court in its decision from 19 December 2005 found that Uganda violated the principles of non-use of force in international relations and of non-intervention and that it violated its obligations under international human rights law and international humanitarian law and that it violated other obligations owed to the Democratic Republic of the Congo.

Thursday, February 02, 2006

Crimes against humanity after Second World War in Slovenia: Impunity as norm

Slovenia is small, beautiful and picturesque country, where one can ski in the morning and surrender oneself to the luxury of the Adriatic Sea in the evening. There are many lakes, steep mountains, woods and forests in Slovenia - covering more than sixty per cent of the country. But it is deep in those woods and forests where the darkest history of Slovenia lies. In the months following the of Second World War the Slovene Communists brutally massacred twenty thousands of fellow Slovenes, who chose not to join Resistance movement led by Slovene Communist Party, and over two hundred thousand of Croats and Serbs. Their remains are spread all over Slovene hills and valleys, so far more than four hundred sites, where slaughters took place, were found. Perpetrators, who ordered and controlled those heinous crimes against humanity, still roam freely on Slovene streets. Others who were indirectly involved are nowadays denying any knowledge of crimes ever being committed or they attempt to justify them as just another aspect of victor’s justice. When one addresses the crimes of genocide, war crimes and crimes against humanity in Slovenia, impunity is still the norm.

The second world war on the territory in Slovenia was not only resistance fight against the German and Italians but also a classic civil war that pitched brother against brother, father against son, friend against friend, and neighbour against neighbour. The Slovene communist during their 45-year rule portrayed the war in heroic terms as a struggle of good against evil, in fact there were few cases of black or white but many shades of grey. In Slovenia the communists branded as enemies and killed not only dedicated fascists but also young conscripts who had little choice but to don Axis uniforms. The killings were often carried out in summary fashion without any attempt to separate real enemies from confused conscripts or to properly treat the defeated forces as prisoners of war, even after the formal end of hostilities.

What message is Slovenia giving to its young generations? The message is that crimes of genocide, war crimes and crimes against humanity may go unpunished without any court proceedings ever addressing it. It is commendable to address the human rights violations in Sudanese Region of Darfur as Slovene President has done, but is not far-reaching to do that, when the Slovene judiciary and also executive have avoided dealing with blatant human rights violations in Slovenia over sixty years ago. One Slovene self-proclaimed “international criminal law scholar” even submitted that those heinous crimes (genocide, crimes against humanity and war crimes) cannot be punishable since they at the time were not included in Slovene criminal code. That statement undermines the basic underpinnings on which Nuremberg and Tokyo trial were held just after second world war.

Last year a person who was second ranked official of Secret Police of Slovene Communist Party was indicted was crimes against humanity and war crimes after II world war. As said in there are in Slovenia 430 hidden places (forests, caves, fields, etc.) with remains of people killed in two years after II world know. The thing that is unbelievable and unacceptable is that no one has wanted so far to address the accountability for those heinous crimes. All older legal scholars deny that crimes ever happened so it is on young scholars to address those crimes and bring perpetrators. But it is difficult since the perpetrators are old and dying and so are the witnesses and victims who survived. Most of documents and orders were destroyed or went missing so it is difficult to find any paper documentation. But at least the first criminal procedure is about to start. If you ask me the best solution would be to have truth and reconciliation commission but it is hard to imagine how effective would be sixty year after crimes were committed. To be continued.

Wednesday, February 01, 2006

Legacy of Communism in Slovenia: Spit in the Face of Rule of Law

It might sound ridiculous or even incomprehensible to talk again about the transition with all of its counters and discounters in Slovenia, but today's news coming from the Office of Slovenian President has collapsed the last walls of decency. According to the official statement from the Presidential Office Slovenian public was told that the President granted clemency to certain D.K. Mr. D.K. was the head of the HIT Casino Enterprise who was after 13 years long criminal procedure eventually found guilty and sentenced to prison for the abuse of his company position in order to acquire contrary to the law for himself or for the 3rd person large financial benefits.

However, Mr. D.K. managed to evade the prison service for a long time by putting forth various excuses, above all health reasons. Finally, he was put into jail, where he remained for a couple of weeks, when suddenly there were media reports on his secret disappearance. He was again transfarred from the prison to the hospital care and today, at the end of the day, Slovenian public learned that by the act of mercy of the President he will not face the prison at all unless he commits another crime in the next five years.

The conviction of Mr. D.K. was one of the very few successfully prosecuted so called transitional crimes. The majority of the crimes related to privatization abuses and other illegal means of profting from the ex-social property were either procedurally precluded because of the passage of time allowed for a prosecution or were simply lost in the "judicial mills" of the Slovenian court system. When this kind of crime - the name of the criminal being a secondary thing - receives amnesty by the discretionary act of mercy by the President of the State, this sends an important symbolical message about the Slovenian version of the principle of rule of law.

Once interpreted in this context, Slovenian social reality is far from being established on the equality before the law, transparency, certainty without arbitrariness, etc. It seems that Presidential discretionary act can be best understood as approving the transition with all its malversations and preventing even one and only role-model case to be established. Now, there is no room for chatarsis. Transition is rubber-stamped and approved, we the small people - in Gogolj's terms - can be happy to live our humble life further and away from the high politics.

This was an act that desires condemnation - it is fundamentally injust and it strikes in the face of all of us who believe in rule of law, equality within and before the law and in the minimal fairness of the state and its institutions.

ps. At the time of this being written, the outcome of this case is still not entirely clear. The Slovenian Ministry of Justice has namely issued an official statement by which it is raising serious doubts whether the promulgation of clemency, i.e. its holding, was actually done according to the law. Therefore, the epilogue follows.