Showing posts with label human rights. Show all posts
Showing posts with label human rights. Show all posts
,

Center for Law Information supports "Special Procedure on climate change and human rights"

Wednesday, March 2, 2011


A group of world Non Governmental Organizations, including the Center for Law Information (CeLI), petition for the establishment of a  Special Procedure on climate change and human rights. The NGOs consider that establishment of a special procedure, such as that which provide a mandate to a special rapporteur, would be an efficient way to tackle the issue.

A letter was sent to diplomatic missions in Geneva urging them to "publicly call for the creation of a Special Procedure on climate change and human rights who reports to the Human Rights Council in a resolution to be adopted at the 17th Regular Session of the Human Rights Council in June 2011."

See attached letter for further information

, , ,

Human Right to Water and the Management of Indonesia’s Water Resources

Monday, December 13, 2010

I recently uploaded my World Water Week presentation’s background paper to the SSRN. The title of the paper is “The Potential Role of the Human Right to Water in the Management of Indonesia’s Water Resources”. In the paper, I argued that:
“…there are gaps in the Indonesian legal framework in securing transparency, access to information, participation, access to justice and the procedure in recognizing customary rights in water resources management. Without adequate access to these procedural rights, vulnerable, marginalized and financially weaker groups will be left out from water resources management and will not be able to secure their entitlements. The Human Right to Water has potentials for filling such gap by reforming the implementing regulation of the Water Resources Law and enhancing the possibility to obtain legal recourse”.

Colleague Hugo Tremblay reviewed this paper in his blog and commentedReading the paper, it sometimes feels like the human right to water is constituted of a bundle of ‘substantive’ and ‘procedural’ rights (ex: see p.4 last §, as well as subsection 5.b on Right(s) to participation, transparency and access to information). Are these rights constituent human rights included under a human right to water? Are they considered as autonomous human rights? Is this an illustration of the doctrine of indivisible, inter-related and inter-dependent human rights?”

While the right to receive and impart information is recognized as a form human rights (Article 19 of the UDHR), the conflation of this right into ‘Freedom of Information’ has sometimes been contested. Although many argued that freedom of information is a human rights (see for example, this article from Toby Mendel), some skeptic may argue that the original intent of Article 19 of the UDHR is to protect free speech and not to provide specific access to governmental information.

Furthermore, the concepts of transparency, participation and access to justice is often mingled with ‘good governance’. A presentation from Susanne Schmidt of the UNDP asked a question: “Is IWRM an HRBA?” The present state of research appears to acknowledge that the two are ‘mutually reinforcing’ with the latter (HRBA) focusing on the equity aspect of governance. A joint working paper of several organisations even consider HRBA as a specific kind of ‘governance’.

I acknowledge that the concept of HRBA still needs further clarification. That, I will not deal in this post. I will reserve it for another day :)

, ,

Indonesia’s Attorney General Lost its Power to Ban Books

Thursday, October 14, 2010

 

clip_image002[4] clip_image002[6]

                                                     

 


Press Release: Indonesia’s Attorney General Lost its Power to Ban Books

The Indonesian Constitutional Court in a 7-1 ruling pronounced last Wednesday, October 13th, that the Indonesian Attorney General is stripped from its power to ban books. This ruling is an important breakthrough for the freedom of expression in Indonesia.

Last January, two lawyers from the Center for Law Information, Rahmat Bagja and Fatahillah Hoed submitted a petition to the Constitutional Court demanding the Court to revoke Law No. 4 PNPS 1963 which provides the legal basis to the Attorney General to ban books.

The lawyers successfully pleaded their case before the Constitutional Court. The Court decided in Wednesday that Law No. 4 PNPS 1963 was invalidated. In the future, banning of books will have to be conducted through a court proceeding.  

Indonesia is a party to the International Covenant on Civil and Political Rights and has therefore, the international obligation to protect the freedom of expression. In the past, book banning has been used by the New Order authoritarian regime to tackle political dissents.

Jakarta, October 14th, 2010

 

Center for Law Information (CeLI)

Indonesia Law Report (ILR)                                                             

 

Picture: Mr Rahmat Bagja and Mr. Fatahillah Hoed at the Constitutional Court’s Judicial Review of Law No. 4 PNPS 1963



,

Links to presentation on the Human Right to Water

Monday, September 27, 2010

 

The following titles links to World Water Week website

 

 
14:10

Concepts I - "Legal and policy development, water quality & the right to water". Dr. Riant Nugroho, Board Member the Jakarta Water Regulatory Body, Indonesia

14:30

Concepts II - "The Human Rights Based Approach (HRBA) and the right to water", Ms. Natalia Uribe, UNESCO Etxea, Spain

14:50

Concepts III - "A Human Rights Based Approach to IWRM - a new initiative", Ms. Susanne Schmidt, Water Governance Specialist, UNDP

15:10

Break

15:20

Case Study I - Ecuador. "Water as a Human Right in Ecuador’s New Constitution"Ms. Sara Caria, ACRA, Ecuador

15:40

Case Study II - Indonesia. "The Potential Role of the Human Right to Water in the Management of Indonesia’s Water Resources", Mr. Mova Al’Afghani, UNESCO Centre for Water Law, Dundee University, United Kingdom

16:00

Case Study III - Tanzania. "Including quality of water in decentralized planning: a case study from Same, Tanzania", Mr. Alejandro Jiménez, Ingeniería Sin Fronteras - ISF (Engineers Without Borders), Spain

, , ,

The Potential Role of the Human Right to Water in the Management of Indonesia’s Water Resources

Saturday, September 25, 2010

 

IMG_4565

The Human Right to Water under the Water Law? Yes. But look also at its elucidation.

 IMG_4563

 

If there is anything I forgot to upload into this website from the last World Water Week then it is my own presentation and pictures. So here it is. The title of my presentation is the above headline. I argue that the Human Right to Water may be able to correct structural loopholes in the current legal framework for water resources management in Indonesia. There are, however, prerequisites which must be fulfilled for such role to take place, and these are (i) building linkages between the Human Right to Water into the current judicial and legislative system and (ii) developing existing institutions, in terms of capacity, resources and mandate in order to incorporate human rights claims.

I have a draft paper to support my arguments which I decide not to share as it is still in the form of, well, a draft paper. But if you are interested, do email me at movanet(at)gmail.com I await for your feedback and comments.

 


 

 

 

 

 

H.T. Dr. Riant Nugroho for the pics



,

Right to Water as a ‘Red Herring’ ?

Tuesday, September 14, 2010

An interesting article from Ching Leong at NUS SPP: “Rights and Price: A Pair of Red
Herrings in Water”. She contends:


If water is perceived as a human right, it should be freely available to one and all. But clean water comes at a cost and unless that cost is paid for, it is difficult to ensure universal access.

Before making any comment, have a look at WWC’s FAQ on the right to water here:

10- Does the human right to water mean that water should  be free?
The right to water does not mean that water has to be delivered for free, but it must be affordable, as well as safe, accessible and sufficient.  However, through the acceptance of a right to water, there is explicit recognition that water is a social and cultural good, as well as an economic good. This point was confirmed in CESCR's General Comment 15. Any payment for water services must be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable to all, including socially disadvantaged groups.

 

Again, before making any comment, have a look at Ms. Leong’s closing statement on her article:

Water in short should be priced as an economic virtue. At the same time, it should be free to those who cannot pay because of a moral imperative that is sometimes captured by the declaration that it is a human right. There is no reason that public policy cannot fulfill both roles because, in this happy instance at least, the imperatives from economics and morality are not in contradiction.


To me, that sounds like a human right after all. A cross subsidy is in place, those who cannot afford should have it for free. So that’s what human right to water is all about. It seems that we’ve agreed on this all along!



,

Millennium Development Goals Report 2010

Saturday, September 11, 2010

The UN General Assembly will hold a two day summit from September 20 to 22 this year in New York. Download the 2010 MDG Report here. Click here for the Summit’s website.



, ,

Indolawreport goes to World Water Week

Monday, September 6, 2010

 

World Water Week

 

Packing for Stockholm: BothEnds and several other NGOs/IGOs are planning to hold a side event on this September’s Stockholm world water week. The topic: Human Rights Based Approach to Improving Water Quality. 

 


Chair: Mr. Jean-Benoit Charrin, WaterLex, Switzerland

14:00

Welcome and Introduction. Ms. Lucinda O'Hanlon, Special Procedures Division, Office of the High Commissioner for Human Rights (OHCHR)

14:10

Concepts I - "Legal and policy development, water quality & the right to water". Dr. Riant Nugroho, Board Member the Jakarta Water Regulatory Body, Indonesia

14:30

Concepts II - "The Human Rights Based Approach (HRBA) and the right to water", Ms. Natalia Uribe, UNESCO Etxea, Spain

14:50

Concepts III - "A Human Rights Based Approach to IWRM - a new initiative", Ms. Susanne Schmidt, Water Governance Specialist, UNDP

15:10

Break

15:20

Case Study I - Ecuador. Ms. Sara Caria, ACRA, Ecuador

15:40

Case Study II - Indonesia. Mr. Mova Al’Afghani, UNESCO Centre for Water Law, Dundee University, United Kingdom

16:00

Case Study III - Tanzania. Mr. Alejandro Jiménez, Ingeniería Sin Fronteras - ISF (Engineers Without Borders), Spain

16:20

Case Study IV - BiH & Tajikistan. Ms. Katy Norman, junior independent consultant working with UNDP

16:40

Panel Discussion. Chair: Dr. Tobias Schmitz, Both ENDS, Netherlands

17:20

Closing Remarks. Dr. Tobias Schmitz, Both ENDS, Netherlands

17:30

Close of Seminar

If I can find some wi-fi there,  Indolawreport may hold a series of live-blogging. More details to follow. If you happens to be in the World Water Week, join us.

, , ,

Human Right to Water vs Integrated Water Resources Management?

Thursday, August 19, 2010

 

OK, maybe not quite a ‘vs’. Tension might be the right word. And here is a paper discussing the topic. Of all the criticism towards the human right to water, this paper might be among those which are most coherent. According to the author:

Abstract:
Water resources management has been shaped by a variety of paradigms reflecting the evolution of government policies and transient societal values. Integrated Water Resources Management (IWRM) became a predominant management framework in the 1990s. The Human Rights-Based Approach (HRBA) to development has also emerged recently as an influential approach in the water sector. IWRM and the HRBA to development in the water sector overlap significantly. The interactions between the two approaches remain largely unexplored although their repercussions may be significant. Because they do not share identical premises and objectives, the concurrent implementation the two approaches might also lead to tensions detrimental to water resources management. The aim of this article is to explore the interactions between IWRM and the HRBA to development in the water sector. Questions raised by perceived conflicts are identified to help address potential tensions when the two approaches coexist. Synergies between IWRM and the HRBA are also detailed to establish how the two approaches are aligned.

Title:

A Clash of Paradigms in the Water Sector? Tensions and Synergies Between Integrated Water Resources Management and the Human Rights-Based Approach to Development

Keywords: Water, Human Rights, Human Rights-Based Approach to Development (HRBA), Integrated Water Resources Management (IWRM)

 

There are four points of potential and existing tensions which the author raised. They are:

 

  1. The HRBA as an anthropocentric approach and the need for an ecosystemic contextualisation of claims on water resources;
  2. The HRBA as an vehicle for developmental aspirations and the acknowledgement of limits in water resources availability;
  3. The indistinct duties of right-holders in regards to the user-pays principle;
  4. Economic water management and the need to protect marginal groups and the poor;

Download yourself directly from the SSRN.


I am currently writing a paper for a conference and all of these four aspects above will be considered.

Enjoy reading….

, ,

Text of the UN Resolution on the right to water and voting records

Tuesday, August 3, 2010

 

Quick blogging. For those of you who are looking for the text of Doc A/64/L.63/Rev.1 , adopted as the UN General Assembly Resolution on the Right to Water and it’s voting records, click here for the resolution and here for the voting records.

, ,

Private water operators “…celebrate the recognition of the Human Right to water and sanitation”

Friday, July 30, 2010

Reiterating my previous post that international human rights law is basically agnostic with respect to the choice of ownership, you will now find an interesting press release from Aquafed, the federation of 300 strong private water providers.

In a July 29 Press Release, Aquafed conveyed that private water operators “…celebrate the recognition of the Human Right to water and sanitation by the United Nations General Assembly.” Furthermore, they call that the resolution “…must be used to turn the Right into a Reality for the billions of people who do not enjoy proper water services”.

Certainly, Aquafed are suggesting implicitly (and explicitly in its other submissions to the HRC) that the private sector are among those who can turn the right to water into reality.

Read Aquafed’s Press Release, along with its involvement in the right to water process here.

 

Anti-privatization movement must now stop advocating alternative service provision using the language of human rights. As I argued previously:

Just to note, literature provide explanation as to the genealogy of the right to water movement (see paper by Bakker here – you may need an access). On the one hand, there is the anti-privatization movement which utilizes the language of human right to water in their campaign against privatization and on the other hand, there is the ‘alter-globalization’ movement which also seeks to foreclose the neoliberalization of waterresources and services but does not utilize the language of human rights. They use the language of the ‘commons’ instead.

Bakker noted in her paper that the campaign against privatization by utilizing the human right to water language are prone to fallacies. Indeed, right to water activists tend to conflate human rights with property rights. If water is a human right, then it should not be a commodity – they think. This is inherently wrong. The right to life does not entitle you not to pay the emergency room service fee, or your medication. The same works for the right to food or education and other rights. Water is by no means different from them.

, ,

UN Resolution on the right to water and the “Geneva Process”

Thursday, July 29, 2010

UN finally adopted the text Resolution on the right to water and sanitation (122 in favour, 0 against and 41 abstentions) yesterday. I had predicted that more vagueness on the text may be necessary in order to attract a higher degree of compromise. I have not seen the adopted text myself, but the UN press release mention Spain’s position which may depicts the trade-off:

Still, water and sanitation were components of the right to a suitable life under the International Covenant on Economic, Social and Cultural Rights, he said, expressing regret that proposals to include language on the independent expert’s work had not been taken into account

But anyway, this is just my guess.

What is more interesting the reference from the representatives towards the “Geneva Process”. Some expressed their disappointment that the Resolution was too premature. The UK voted abstention under the reason that:

… the text pre-empted the work going on in the Human Rights Council, she said, noting that the United Kingdom had supported the resolution establishing the independent expert, as well as the text on human rights and access to safe water and sanitation, adopted in 2009.  Indeed, the work in Geneva had been progressing, she added.

Similar stance was adopted by the US:

 

He said his delegation had hoped to negotiate and ultimately join the consensus on a text that would uphold the process under way at the Human Rights Council.  Instead, the text fell far short of enjoying unanimous support among States and might even undermine the work under way in Geneva.  It described the right to water and sanitation in a way not reflected in existing international law since there was no “right to water and sanitation” in an international legal sense, as described by the resolution.

Expressing regret that the text had diverted the Assembly from the serious international efforts under way to promote greater coordination on water and sanitation issues, he said it attempted to take a short cut around the serious work of formulating, articulating and upholding universal rights.  It had not been drafted in a transparent, inclusive manner, and neither the Assembly, nor the Geneva process had yet considered fully the legal implications of a declared right to water.  For those reasons, the United States had called for a vote and would abstain in the voting, he said.


and Turkey:

The representative of Turkey, recalling that the Human Rights Council had recently created the mandate of the independent expert and passed a resolution on the same subject, said the matter was before the Council and the Geneva process was ongoing.  The text prejudged the outcome of those discussions and Turkey would therefore abstain from the vote.

 

It appears to me that states who were previously thought to vote against the resolution are now moving their stance into ‘abstention’ instead by citing the ongoing process in Geneva.

 

Germany who had been quite active in the human right to water movement, on the other hand, perceives that the Resolution text is not a threat to the Geneva process:

Unlike some, Germany saw the text not as a threat to the European Union-led “ Geneva process” on water and sanitation, but rather as another component of that process, he stressed.  At the same time, Germany would have preferred that the text include more language proposed by the European Union.  It nevertheless included important elements of the work going on within the Human Rights Council and that of the independent expert on the subject.  Germany invited delegations to support and participate actively in the Geneva process in order fully to understand the right to water and sanitation.

Hence, I don’t really know if this move towards a resolution is somewhat premature – as the Independent Expert will only complete and report her work by next year – and therefore counterproductive or this is somehow some sort of diplomatic fait accompli with the purpose of safeguarding the Human Right to Water movement by giving it a more weigh through a resolution and at the same time giving direction to the Geneva process.

Just to note, literature provide explanation as to the genealogy of the right to water movement (see paper by Bakker here – you may need an access). On the one hand, there is the anti-privatization movement which utilizes the language of human right to water in their campaign against privatization and on the other hand, there is the ‘alter-globalization’ movement which also seeks to foreclose the neoliberalization of water resources and services but does not utilize the language of human rights. They use the language of the ‘commons’ instead.

Bakker noted in her paper that the campaign against privatization by utilizing the human right to water language are prone to fallacies. Indeed, right to water activists tend to conflate human rights with property rights. If water is a human right, then it should not be a commodity – they think. This is inherently wrong. The right to life does not entitle you not to pay the emergency room service fee, or your medication. The same works for the right to food or education and other rights. Water is by no means different from them.


This is proven by the recent report (see previous post) arising out of the the Geneva Process. It is explicitly stated there (see Para.63) that:

The human rights framework does not call for any particular form of service provision. It is well established that, from a human rights perspective, States can opt to involve non-State actors in sanitation and water services provision. But the State cannot exempt itself from its human rights obligations and hence remains the primary duty-bearer.

That paragraph should sent a blunt message to anti-water privatization movement that their endeavour in foreclosing the neoliberalization of the water sector through human rights language may not  be successful.

Relevant posts:

Draft UNGA Resolution on the Right to Water – What is Indonesia’s Diplomatic Position?
Human Right  Aspects of Private Sector Participation in the Water Sector
Is water a commodity or human rights?
The human right to water is not a property right
Why busy with the right to water instead of governance
Consultation on the Human Right  Aspects of Private Sector Participation in the Water Sector: more responses from the private sector
The Economist and the human right to water
Transparency Agenda in Water Utilities Regulation
Papers:
Safeguarding water contracts in Indonesia
Constitutional Court review and the future of water law in Indonesia
Presentation:
Anticipating water trade

, ,

Draft UNGA Resolution on the Right to Water – What is Indonesia’s Diplomatic Position?

Friday, July 23, 2010

 



Quick blogging. Sponsored by Bolivia, next July 28th the UN is moving towards embodying the human right to water in the form of a UNGA Resolution. The current content of the right to water is clarified by the General Comment 15 (GC-15) and reports produced by the Independent Expert on the Right to Water and Sanitation. The GC-15 is not binding as a legal instrument to state parties of the ICESCR, although it is an authoritative source of interpretation.
A UNGA Resolution on the other hand, may constitute an evidence of state practice which reinforces the bindingness and (the legal) existence of the right to water under International law [International Law experts are welcomed to argue on this :) ].

However, I consider the resolution’s draft text to be vague. It only recalls the GC-15 and two previous reports by the Independent Expert (IE). There is no clarification whatsoever on the content of the right. It may be that the strategy of interpretation is to link the Resolution with the GC-15 and the IE reports.

Note that some countries including the UK, USA and Canada opposes this move. As such, a vote might be required. Main supporters are likely to be Southern states. In order for this resolution to be supported by more states, more vagueness might be necessary. Nevertheless, this is already an important diplomatic move.

Read also, Maude Barlow’s and Mikhail Gorbachev’s op-eds on the right to water. The Draft Resolution (July 19th) is accessible here.
Does anyone know Indonesia’s diplomatic position?



, , , ,

Report on the human rights aspect of private sector participation in the water sector

Thursday, July 15, 2010


Quick blogging. Finally the long awaited report from the Independent Expert (IE) is out.

The report emphasize the importance of transparency, participation and accountability in water projects involving the private sector. On the transparency side, the IE even suggests that "Commercial confidentiality must not jeopardize the transparency requirements provided for under the human rights framework". Finally, she conclude and recommends that "The process of decision-making and implementation, any instruments that delegate service provision including contracts, and instruments that outline roles and responsibilities must be transparent, which requires the disclosure of adequate and sufficient information and actual access to information".

 

I hope this report ends the long speculation that the human right to water means outlawing “privatisation”. It does not and is never meant to be as such. The discourse on water has been cluttered with the privatisation debate. This report outline that the word “privatisation” itself is dilemmatic and the problem does not end there. Privatization has its problem and so does non-delegated or state-owned services. The real problem is governance, whether the service is public or private or hybrid.

More discussions follows.

Read the full report here.

Relevant posts:

Transparency in Water Services
Indonesian Water Services Suffering from a Lack of Governance
14 Disturbing Facts about Jakarta's Water
Where to complain for bad water services – a comparison
Jakarta’s water crisis, whose fault?
Human Right  Aspects of Private Sector Participation in the Water Sector
Is water a commodity or human rights?
The human right to water is not a property right
Why busy with the right to water instead of governance
Consultation on the Human Right  Aspects of Private Sector Participation in the Water Sector: more responses from the private sector
The Economist and the human right to water
Transparency Agenda in Water Utilities Regulation
Hukum Air (Water Law) is not really a topic in Indonesia
Papers:
Safeguarding water contracts in Indonesia
Constitutional Court review and the future of water law in Indonesia
Presentation:
Anticipating water trade




, , , ,

Reminder: Audio Conference on Consumers Rights in Water Services

Wednesday, June 2, 2010

Reminder: An audio conference with the topic "Protection of water consumer's rights in Indonesia" will be held on this page today, June 2, 19.00-20.30 (GMT+0) -- that's around 1.a.m. Jakarta Time (GMT+6)! The discussion will be in Bahasa Indonesia. Materials are available below. Read here for previous announcement.

 

 

Live Videos by Ustream




Materials

Discussion Paper titled  “Perlindungan Hukum Terhadap Konsumen Air di Indonesia” is downloadable here.  
Op-ed and blog posts:

Transparency in Water Services 
Indonesian Water Services Suffering from a Lack of Governance 
Supreme Court Decision on Water Monopoly in Batam 
Missing water and shadow users 
14 Disturbing Facts about Jakarta's Water 
Tomorrow, the Freedom of Information Law is in force! 
Three ways for your business to be implicated by the new Indonesian freedom of information law 
Where to complain for bad water services – a comparison 
Jakarta’s water crisis, whose fault? 
Human Right  Aspects of Private Sector Participation in the Water Sector 
Is water a commodity or human rights? 
The human right to water is not a property right 
Why busy with the right to water instead of governance 
Consultation on the Human Right  Aspects of Private Sector Participation in the Water Sector: more responses from the private sector 
The Economist and the human right to water 
Transparency Agenda in Water Utilities Regulation 
Hukum Air (Water Law) is not really a topic in Indonesia 
Papers: 
Safeguarding water contracts in Indonesia 
Constitutional Court review and the future of water law in Indonesia
Presentation: 
Anticipating water trade


, ,

Diplomatic protection in freedom flotilla incident

Tuesday, June 1, 2010

 

I interviewed an Indonesian government official about the Flotilla incident. As you might have been aware, around 12 Indonesian journalists and volunteers are on board the vessels, which makes this issue even more emotive for the Indonesian.

The key question is what diplomatic avenues are available to protect our citizens there and as a follow-up to that, what mechanisms of redress is available under International Law. It is unfortunate that he refuse his name to be mentioned. The analysis he provides is very interesting. Enjoy the interview.

 

Why is there no "international law" when it comes to Israel?

Not necessarily the case. There are many areas in international law that must be followed by Israel. Take for example in area of diplomatic relations. The fact that Israel has embassies worldwide and official mission in the UN shows that Israel bound to international law. Failure to follow international law thereof will bring consequences.

The latest consequences or "slap in the face" for Israel in diplomatic relations was when UK and Australia expelled or "persona non grata" Israel diplomats from their embassies in relation to passport frauds done by Mossad in the recent Hamas' leader assassination.

In the context of freedom flotilla, one of the main issues of international law is the legality of unilateral interdiction in high seas, including among others, compensation. 


Can Indonesian government provide diplomatic protection to its citizens on board Flotilla -- notwithstanding that there is no preexisting diplomatic ties between the two nations?

Indonesian Government can provide protection for its nationals aboard freedom flotilla. As a matter of fact, it is required by indonesian law and international law acknowledges the existence of  such obligation.


Is it possible to ask for reparation for injuries?


Of course, in the context of Israel, the United Nations, in particular via the UNGA or UNSC may serve as a media to ask for reparation of injuries. What needs to be underlined though, both UNGA and UNSC are not law tribunals rather they are political bodies.   

 

Is there any way to charge the perpetrators under war-crime?

Charging is less difficult compared to find the means and enforcement to do so. Once there was an attempt to charge former US President Bush for war crimes in Iraq, but because neither the means and enforcement are sufficient, the attempt was useless.

Netanyahu claimed that it was an act of self-defense. What is your comment?

This incident reminds me of a self defence character policy announced by the US in 2004 called Proliferation Security Initiative or PSI, which basically allows interdiction of vessels on high seas assumed to carry WMD for terrorists.


In this case, both PSI and Israel's interdiction share similar motive; threat of terrorists attack (Netanyahu statement in BBC in responding to the interdiction). A clear difference between the two, however, is in the methods: the PSI requires a consent from the vessel's flag states before attempting to board the vessel to begin with whilst the Israelis clearly does not.


Surely, there is a valid reason why International law governs strict requirements when it comes to self defence and use of force, that is to maintain peace, not otherwise. 

 

How compelling (or binding -- as lawyer's often put it) is the law on interdiction under international law? Boarding a foreign vessel on an international water is a clear violation of international law, no? What can Turkey does to redress this internationally wrongful act of the Israeli state?


International law governs interdiction of ships both by customs and treaty laws. Israel is bound to follow; it if not by treaty law then by ways of customs. Because vessel is an extension of a state's territory being the flag state or the owner state, it can be considered as an act of war to board a foreign vessel without valid justification and procedures. Prima facie, such act violates that particular state sovereignty. Article 2 (4) of the UN Charter is crystal clear when it comes to territorial integrity, let alone ICJ decisions.

Bilaterally, Turkey can seek compensation from Israel via its diplomatic channels. Multilaterally Turkey or any other nations for that matter that have been effected by this incident may ask UNGA to exercise Article 96 (b) of the UN Charter that is to seek ICJ's advisory opinion on the legality of Israel's interdiction on freedom flotilla as it did in 2004 on the legal consequences of the construction of a wall in the occupied Palestinian territory, which was decided as contrary to international law.

In a more concrete terms, what can we do provided that no diplomatic relation exist? Can we use the diplomatic arm of a third country to facilitate protection? Can we pursue international enforcement through ICJ, i.e. that states victim collectively demand reparation for its citizens on board Flotilla (that includes Turkey as the ship's flag-state) through ICJ mechanism?

I see several scenarios with regard to protection of Indonesian nationals, among others first, all or one Indonesian nationals are taken as hostages or worst prisoners and second possible compensations. For the first scenario, Indonesia via its permanent representative in the UN can demand a release or deportation of its nationals from Israel or use a third state having diplomatic relations to Israel to do so. The second scenario, however, is rather difficult because the Israel has to be found responsible first.

Enforcement through ICJ is unlikely to result in actual reparation. Unless Israel accepts ICJ's compulsory jurisdiction for contentious case, the only available means in ICJ is by advisory opinion under Article 96 (b) as I have mentioned earlier.

As part of procedures in advisory opinion, Indonesia can submit its official views to the ICJ on the case as it did in the advisory opinion case on legal consequences of the construction of a wall in the occupied Palestinian territory.

 

 

 

And, a gentle reminder:
An online discussion on consumers rights in the Indonesian water services sector will be held on Wednesday, 2nd of June 2010 at 19.00 (GMT+0) in here. More detail.



, , ,

Join WASH United!

Monday, May 31, 2010

The world now comes together in South Africa to celebrate football and to cheer the teams to victory. However, the sad news is that during the time-span of each match, 140 African children will lose their lives to preventable diarrhea. In fact, diarrhea caused by dirty water, lack of toilets and poor hygiene kills more children than malaria, measles and HIV/AIDS combined!


This crisis has no place in the 21st century and it is high time we all redouble our efforts to end it. Didier Drogba, Bastian Schweinsteiger, Stephen Appiah, Michael Ballack and many other superstars have already teamed up with WASH United to fight for safe drinking water, sanitation and hygiene for all people.
When will you join WASH United and become a Champion for WASH?





And, a gentle reminder:
An online discussion on consumers rights in the Indonesian water services sector will be held on Wednesday, 2nd of June 2010 at 19.00 (GMT+0) in here. More detail.


, , , ,

The Economist and the human right to water

Saturday, May 22, 2010


H.T to Bo.
The economist recently released an excellent report on water. But there are some parts of the report that disturbs me a little:

Industrial use takes about 60% of water in rich countries and 10% in the rest. The difference in domestic use is much smaller, 11% and 8% respectively. Some of the variation is explained by capacious baths, power showers and flush lavatories in the rich world. All humans, however, need a basic minimum of two litres of water in food or drink each day, and for this there is no substitute. No one survived in the ruins of Port-au-Prince for more than a few days after January’s earthquake unless they had access to some water-based food or drink. That is why many people in poor and arid countries—usually women or children—set off early each morning to trudge to the nearest well and return five or six hours later burdened with precious supplies. That is why many people believe water to be a human right, a necessity more basic than bread or a roof over the head.

From this much follows. One consequence is a widespread belief that no one should have to pay for water. The Byzantine emperor Justinian declared in the sixth century that “by natural law” air, running water, the sea and seashore were “common to all”. Many Indians agree, seeing groundwater in particular as a “democratic resource”. In Africa it is said that “even the jackal deserves to drink”.
A second consequence is that water often has a sacred or mystical quality that is invested in deities like Gong Gong and Osiris and rivers like the Jordan and the Ganges. Throughout history, man’s dependence on water has made him live near it or organise access to it. Water is in his body—it makes up about 60%—and in his soul. It has provided not just life and food but a means of transport, a way of keeping clean, a mechanism for removing sewage, a home for fish and other animals, a medium with which to cook, in which to swim, on which to skate and sail, a thing of beauty to provide inspiration, to gaze upon and to enjoy. No wonder a commodity with so many qualities, uses and associations has proved so difficult to organise.


If you read these sentences carefully, you will find:

  • The reason why there is the right to water
  • The first consequence of the right to water
  • The second consequence of the right to water

What are they? Let’s return to the paragraphs:

 

Industrial use takes about 60% of water in rich countries and 10% in the rest. The difference in domestic use is much smaller, 11% and 8% respectively. Some of the variation is explained by capacious baths, power showers and flush lavatories in the rich world. All humans, however, need a basic minimum of two litres of water in food or drink each day, and for this there is no substitute. No one survived in the ruins of Port-au-Prince for more than a few days after January’s earthquake unless they had access to some water-based food or drink. That is why many people in poor and arid countries—usually women or children—set off early each morning to trudge to the nearest well and return five or six hours later burdened with precious supplies.  That is why [Reason] many people believe water to be a human right, a necessity more basic than bread or a roof over the head.
From this much follows. One consequence is a widespread belief that no one should have to pay for water. [First Consequence] The Byzantine emperor Justinian declared in the sixth century that “by natural law” air, running water, the sea and seashore were “common to all”. Many Indians agree, seeing groundwater in particular as a “democratic resource”. In Africa it is said that “even the jackal deserves to drink”. [ Example of first Consequence?]
A second consequence is that water often has a sacred or mystical quality that is invested in deities like Gong Gong and Osiris and rivers like the Jordan and the Ganges.
[Second consequence] Throughout history, man’s dependence on water has made him live near it or organise access to it. Water is in his body—it makes up about 60%—and in his soul. It has provided not just life and food but a means of transport, a way of keeping clean, a mechanism for removing sewage, a home for fish and other animals, a medium with which to cook, in which to swim, on which to skate and sail, a thing of beauty to provide inspiration, to gaze upon and to enjoy. No wonder a commodity with so many qualities, uses and associations has proved so difficult to organise.

With all the respect to the economist, I think it is contestable that the human right to water causes either (1) the widespread belief that water is free or (2) that water is sacred and mystical.

Let’s discuss the first consequence. The economist is already quite prudent in not directly pointing out that human right to water means that water should be for free. Instead, it points out that human right to water makes people think that water should be free (a widespread belief). But is it true. Is it true that the human right to water makes people think that water should be free? It would require an empirical research to survey people’s opinion, not only about the human right to water, but also the term human rights in general. Is it true, that when something is labeled as “human rights”, then it should be free? This would make an interesting research in itself because it will have implications to human rights based access movements. My understanding is of course, that things which are labeled human rights, does not necessarily means that they are ‘free’. The right to education and the right to health are not free, although they are human rights. The right to vote is not free, because someone will have to provide and construct the ballots. Indeed, elections costs a lot.  

The examples of the first consequence is not really clear to me.  The second sentence (Justinian’s decree) does not really reinforce the assertion used on the main idea (human right to water causes the widespread belief that water should be free). But the sentence does provide an understanding that in the past people once regard water as ‘common to all’. This is correct. What is not correct is when they are tied to the main assertion. There is no relation between the human right to water and Justinian’s decree that water is a res communis. The two are different things. To put it in different way: Justinian does not say that running water is common to all, because it is a human right.

Now let’s move on to the second consequence: the right to water makes sacred or mystical qualities attached into it. I am almost certain that this is not the case. The Ganges were there, and was considered sacred, long before the term “Human Rights” were invented.

Anyway, probably it is me the one who misunderstood the Economist’s paragraphs above. Do you have a better suggestion?



, , , , , , ,

Indonesia: Turning Critics into Criminal (HRW 2010 Report)

Wednesday, May 19, 2010

 

The HRW 2010 report released earlier this May focused on Indonesia’s defamation law. According to the Human Rights Watch’s press release:

The 91-page report, "Turning Critics into Criminals: The Human Rights Consequences of Criminal Defamation Law in Indonesia," documents recent cases in which criminal libel, slander, and "insult" laws have been used to silence public criticism. Criminal defamation charges have been filed against individuals after they held public demonstrations protesting corruption, wrote letters to the editor complaining about fraud, registered formal complaints with the authorities, and published news reports about sensitive subjects.

In an SMH op-ed published today, the author of the report argue:

Not everyone in Indonesia who airs critical facts or opinions ends up accused of a criminal offence. But the arbitrary enforcement of such laws, and even the mere threat of enforcement, has a damaging chilling effect on civil society, the media, and private citizens' willingness to express critical thoughts or opinions, especially online.


The cover page of the report pictured Prita Mulyasari, the housewife sent to trial under the defamation law for complaining for a bad health service she had received from a hospital. In my earlier op-ed, I emphasize the need for an efficient and effective out of court settlement in health cases, such as that involving Prita’s:

In a market-based solution, the parties stay out of court. If the health service provider does something wrong, they pay the patient and the patient can agree not to sue at a price. If providers don't do anything wrong, they ask the patient to issue a public apology and a sum of money to the extent that they can pay. The cost expended in this mechanism is much lower compared to going to court. This mechanism requires the government to reduce information asymmetry in the market as parties can only negotiate when the evidence is available.

This report sends a very strong message to the international community and create pressures to the government that a reform is urgent. Click on the image below to download the full report:

 


Related posts:
Bringing patients to court may not be efficient
Housewife on trial for defamation



, , , , , , , ,

HOWTO: Tweet the right lawyers

Thursday, May 13, 2010

 

(and get a free advice on something)

Jennifer asked:

Who would be a good person to tweet for advise on Clemency and human rights? I support Australian Schapelle Corby who is mentally ill and her lawyer has appealed to the Indonesian president for clemency. I believe she is innocent and did not receive a fair trial but now her mental health is priority. She was sentenced to 20 years which is harsh by Indonesian standards with no testing of the evidence despite her demands to police and prosecution (these tests may of proved her innocence). She has suffered enough and needs to come home. Thanks, any info would be appreciated

Short answer: perhaps these people can help:

@taufikbasari @arijuliano @anggarasuwahju @TodungLubis @lisrasukur

Long answer: follow them on twitter, discover their network and give a shot. Perhaps it is better to drag people’s attention through your own twitter campaign. A lot of people is using twitter to extend their advocacy to the online world.  An important feature in this effort is in creating incentives for people to tweet their opinion. The incentive could either be external (from outside factors, such as a praise or a thank you note from other people) but they are mostly internal (they just feel good about tweeting). I will try to elaborate this further on my next post.


Related posts:

Twittering the Indonesian Legal Community
ABAnet Twitter Debate on Virtual Law Office
6 Free Collaboration Tools for Lawyers