El Estado de Derecho tiene una hermana de la que apenas hablamos

Estado-autonomico-Derecho-Constitucional-1140x419Este artículo fue publicado en Agenda Pública

Pueblo y Democracia tuvieron mellizos, niño él, niña ella. Son iguales en peso, altura y grado hereditario, pero no les queremos por igual. El niño se llama Estado de Derecho. La niña, Soberanía Parlamentaria.

Vaya mi tesis por delante. Sostengo que si reconociéramos el mismo valor al Estado de Derecho y a la Soberanía Parlamentaria, la respuesta institucional pero sobre todo ciudadana al contencioso en Catalunya sería distinta.

Si el Estado es de Derecho la sociedad entera, gobernantes incluidos, está sometida a la ley y el papel de los jueces es velar por que así sea. Pero en democracia no nos basta con afirmar que la ley hay que cumplirla. Necesitamos que la ley sea legítima. Y la legitimidad deviene de que la voluntad popular quede reflejada en ella. Mientras no nos inventemos algo mejor, la voluntad de 7,5 o de 46 millones de personas sólo puede conocerse a través de algún mecanismo de representación. Eso es el parlamento, que debe ser soberano, es decir, debe tener poder de decisión sobre el conjunto.

Tanto el Estado de Derecho como la Soberanía Parlamentaria son pilares esenciales pero mantener el equilibrio entre ambos no siempre es fácil. Requiere una actitud responsable y consciente. El Pueblo democráticamente representado se compromete a preservar la independencia de los jueces, y éstos por su parte respetan la supremacía del parlamento.

Jueces y parlamentarios son por lo tanto garantes de una misma libertad. Cumplir con dicha misión es de una trascendencia inconmensurable que exige un ejercicio de autocontrol permanente. Los parlamentarios han de ser conscientes de que no todo lo pueden, y los jueces han de respetar que su poder no proviene de la Facultad de Derecho sino de la voluntad popular. Continue reading “El Estado de Derecho tiene una hermana de la que apenas hablamos”


Against the criminalisation of foreign fighters with the discourse of terrorism

chartoftheday_2658_Where_Syrias_Foreign_Fighters_Come_From_nLast week, interior ministers of the 15 countries sitting at the UN Security Council met to discuss foreign fighters. They did so as part of the follow-up of Resolution 2178 (2014), which defines foreign fighters as people who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training”.

This is hardly a new phenomenon, but foreign fighters are getting more and more attention in relation to Syria and Iraq. The number of foreign fighters in both countries could exceed 20,000, and according to the Director of Europol, between 3,000 and 5,000 of them would come from EU countries.

In Resolution 2178, as well as previous ones since 2001, the Security Council urges states to adopt legislative and criminal measures to prevent terrorism and bring suspects to justice.

With the intention to operationalise the mandate of the Security Council, the Council of Europe is working on a draft protocol to the 2005 European Convention on the Prevention of Terrorism. This text criminalises the action of joining a group and “participating” in its activities “for the purpose of committing or contributing to the commission” of terrorist offenses (Article 2), “receiving training for terrorism” (Article 3), “travelling abroad for the purpose of terrorism” (Article 4), “funding travelling abroad for the purpose of terrorism” (Article 5), or “organising or otherwise facilitating travelling” for that purpose (Article 6).

As noted by Scheinin, the formulation of these provisions relies on the intent (“purpose”) of the person to participate or contribute towards the commission of a terrorist offence.

The draft protocol, therefore, does not call for the criminalisation of travelling to conflict zones, and individual countries have not modified their criminal legislation to punish travelling per se. The subjective element of intent is required.

However, a variety of measures are already being taken in relation to foreign fighters, ranging from passport confiscation (Germany), attempts to bar foreign fighters from acquiring national citizenship (Austria), stripping known foreign fighters of access to social services (Belgium), or revoking naturalised nationality (UK and Netherlands) (see reports here, here and here).

So far, these measures are targeting Islamic foreign fighters travelling to conflict areas with a religious motivation. However, there is no reason why these measures could not be potentially applied to other conflicts. For example, Spanish authorities recently detained eight nationals that had fought in Ukraine on the pro-Russian side. Apparently their actions may have infringed Spain’s neutrality, and therefore compromise the country’s “peace or independence”. Continue reading “Against the criminalisation of foreign fighters with the discourse of terrorism”

“The Interview” and the sanctity of private business in public international law… since the 16th century

the interviewBy now it is well known that Sony was cyber attacked some weeks ago allegedly as a reaction to “The Interview”, a satirical film that depicts the assassination of Kim Jong-Un. I haven’t seen the film and I don’t know anybody who has seen it, but Barbara Demick, a North Korea specialist writing in New Yorker, asserts that, considering it is meant to be a freaky parody, it does justice to the first impression the average Western visitor may get of Pyongyang.

An FBI investigation concluded that the regime was behind the attack, but the North Korean Government denies the accusations. Technology security experts have doubts about the involvement of the Asian country. Nevertheless, President Obama hasted to promise retaliation.

President Obama said that the attack “caused a lot of damage” and showed the need of “clear rules of the road in terms of how the Internet and cyber operates. Right now, it’s sort of the Wild West”, and everybody knows that when it comes to international politics this is something Americans really dislike (my own words; not the President’s). Secretary of State John Kerry framed the US position in terms of protecting freedom of expression. Consistently, Sony chief Kazuo Hirai has recently said that they are all for civil liberties: “Freedom of speech, freedom of expression, freedom of association – those are important lifelines of Sony and our entertainment business”. Continue reading ““The Interview” and the sanctity of private business in public international law… since the 16th century”

Order versus Justice in the selection of the next UN Secretary General

aban2The battle to replace Ban Ki-moon has begun. A recent article by Colum Lynch (@columlynch) in Foreign Policy speaks about the race, the likely competitors and the interests at play. The author explains how the most powerful countries tend to prefer contestants from nations with little weight in international politics. He also talks about the strategies previous nominees have followed, and foresees that the next Secretary General may come from Eastern Europe, notwithstanding the quiet movements of certain players from Latin America to Australia and the ongoing EU-Russia tensions. Not in vain, the UN Secretary General is appointed by the General Assembly, on the recommendation of the Security Council (Art. 97 of the UN Charter), where vetoes are always an option.

This time some people are committed to change the way the Secretary General gets chosen. A number of civil society organisations are campaigning under the platform #1for7billion (@1for7billion), calling for a “process that meets the higher standards of transparency and accountability that UN Member States and civil society have been demanding for years, (…) a process that provides meaningful involvement from all Member States, appropriate input from civil society, and that matches that of other high-level international appointments”. They demand transparency and citizens’ active participation. They oppose the business as usual that has ruled the nomination since 1945. They want 1-for-7-billion, not 1-for-193-mostly-15-really-5. Continue reading “Order versus Justice in the selection of the next UN Secretary General”

Who holds the responsibility to protect? And who is to be protected?

Lucke Glanville argues in his recent Sovereignty and the Responsibility to Protect (2014) that this responsibility dates back from the 16th and 17th centuries. However, a good number of scholars believe that the first “humanitarian intervention” took place in Bulgaria in 1876, when Ottoman troops attacked villages killing thousands of civilians. Outraged, the British public demanded action, and indeed European Powers mobilised to require the Sultan to protect the Christians living in Eastern Europe. Former PM Gladstone famously campaigned for intervention echoing “the moral sense of mankind at large”. Western Europe intervened. Eastern European Christians were to be protected.

Last Thursday, President Obama announced that he had authorised “limited air strikes” against the combatants of the self-named Islamic State of Iraq and Syria. It was the first American military action in the country since 2011. But this is not 2003, and President Obama did his best to “make this perfectly clear”: It is a “humanitarian intervention”; it is “at the request of the Iraqi Government”; “we have a mandate to help”; “we cannot turn a blind eye”; “we must prevent the total destruction of innocent Iraqis, which would constitute a potential act of genocide”. America intervenes. Iraqi Christians (and Kurdish Yazidis) are to be protected.

It can hardly come as a surprise that the US is leading this mission with no end date for the time being. So far, the UK Government has only pledged the delivery of humanitarian and medical support. Meanwhile, le Quai d’Orsay has been trying to push its European counterparts to agree on something on the matter. The EU Political and Security Committee recognised on Tuesday that individual members states are free to send weapons to the Kurdish militia, but did not reach an agreement on any EU-level intervention.

r2pThe words carefully chosen by President Obama last week remind the language used by the supporters of the “Responsibility to Protect” (also known as R2P). Coined in 2001, R2P firstly means that states are obliged to protect their citizens from international crimes. This is not new, because in essence protecting the people within the national jurisdiction is what International Human Rights Law has been all about since 1948. However, R2P also claims that if a state fails to protect its people, the international community has the responsibility to intervene, using force if necessary. This, if it could be a norm, would constitute a major change. But it is not a norm. Continue reading “Who holds the responsibility to protect? And who is to be protected?”

What human rights norms do Western European countries promote? #TimeToAct

jolie and hagueWilliam Hague and Angelina Jolie are hosting a global summit in London to put an end to sexual violence in conflict (follow #TimeToAct). In June 2013, Madrid hosted the 5th world conference on (against) death penalty. It was organised by an abolitionist group (ECPM), and sponsored by the Governments of Spain, France, Switzerland and Norway.

Western European countries promote international human rights norms. The summits of London and Madrid are just two examples of what and how they do it. Now, the questions are: Why do they do it? And, related to this, what kind of norms do they promote?

According to Finnemore and Sikkink’s famous model of international norm diffusion, states play a major role in this process when they choose to embrace certain norms, understood as “standards for the appropriate behavior of states”. Finnemore and Sikkink are of the opinion that states promote human rights norms “for reasons that relate to their identities as members of the international society”. In other words, states promote norms because they consider them legitimate.

I hold a different opinion. Continue reading “What human rights norms do Western European countries promote? #TimeToAct”

UN bodies insist: Human rights have extraterritorial effects

fronterasThe United States and the Vatican have recently been criticised by three UN committees for the very same reason: Because both States refuse to accept that their human rights obligations have effects beyond their national borders.

In February, the UN Committee on the Rights of the Child (CRC) demanded the Vatican to put an end to the impunity in relation to sex abuse and to remove immediately all clergy who are known or suspected child abusers (find CRC’s Concluding Observations here). In its defence, the Vatican representative argued that “priests are not functionaries of the Vatican”; they are “citizens of their own states, and they fall under the jurisdiction of their own country”. The CRC rightly responded applying the general principle of International Human Rights Law that says that States must respond for the human rights abuses committed wherever they exercise “effective control”, regardless of whether it is within or beyond national boundaries. Continue reading “UN bodies insist: Human rights have extraterritorial effects”