Zvjezdana Kragic asks whether the existing state-centric international system can be sustained under the influx of climate change refugees.

In Hannah Arendt’s highly influential philosophical work, On Totalitarianism, the legacy of the twentieth century – that is, the establishment of human rights – is systematically critiqued.

The challenge to this system only became apparent after World War II, with the failure to accommodate the “people forced to live outside the scope of all tangible law”. The expulsion of minorities from political society – such as the Jewish community, among others – provided refugees with no recourse other than to claim protection under any human rights law. This was mainly as a result of the state being privileged with the provision of human rights.

More importantly, Arendt recognises that the international community, faced with the novelty of the refugee, did not know exactly which rights were lost. Though the refugee mourns the destruction of the family home, the disintegration of cultural practices, and loss of communal ties, there is one right not recognised. As a political being, the refugee ultimately loses the right to have rights.

The right to have rights is not so much concerned with substantive rights, such as the abovementioned basic needs, but rather the assumption “that no law exists for [the refugee] … that nobody wants to ever oppress them”. The refugee becomes existentially transparent.

State sovereignty, Arendt argues, is the main motivation behind the apathy to reintegrate the refugee back into society. States fiercely guard the right to determine who participates in their political communities.

The growing failure of the state to meet its moral obligations towards the refugee threatens its legitimacy.

Immigration control becomes problematic when refugee numbers rise to a critical level, which is the expectation with climate change refugees. The Intergovernmental Panel on Climate Change (IPCC) and Norman Myers of Oxford University conservatively predict 150 million environmental refugees by 2050, representing 1.5 per cent of the expected world population of 10 billion. Thus, climate change refugees raise a practical political problem. Arendt argues that the growing failure of the state to meet its moral obligations towards the refugee threatens its legitimacy.

Historical Debris of Human Rights

Arendt traces the association between ‘the right to have rights’ and ‘recognised membership’ of a polity in historical developments. As the popularity of the state emerged, its role as the primary protector and provider of human rights became entrenched.

The notion of human rights emerged during the French Revolution, when man was proclaimed to be the very ‘source’ of rights. The emancipatory movement also provided man with the ‘right’ to determine his own sovereign: thus the citizen was born. Ironically, man was then instantaneously incorporated back into the masses: that is, the political community. This contradiction between autonomy and political allegiance continues to plague both the citizen and the foreigner.

Every man was born somewhere and, by that logic, has the right to citizenship of some kind. As a result, outsiders face the challenge of being reintegrated back into a polity.

The Rise of the Refugee

A climate change refugee is defined as a person displaced due to environmental disasters. A debate has emerged over whether ‘refugee’ is an accurate term to refer to the environmental circumstance of homelessness. That ambiguity does not necessarily pose a concern to this article. Rather, any person that has lost his or her place in a particular community is accorded the status of an outsider, and in the broader international sense, a ‘refugee’.

Although the number of refugees is continuously rising as a result of civil wars, poverty and terrorism, the potentially instantaneous influx of climate change refugees requires a rapid and flexible response by the global community.

Moreover, organising communities into tightly bounded states excludes the opportunity to recognise the problem itself. At the instance of expulsion, the refugee cannot appeal against his or her loss of rights. His or her standing before the law becomes unrecognised, and forces the refugee to remain in a vacuum of illegality and permanent displacement.

The refugee, by his or her very existence, questions the purpose and worth of international human rights, if the right to have rights cannot be protected or systematically enforced.

The physical manifestation of the very source of human rights stands outside state borders, naked in its pure humanity. No longer can the individual hide behind the veil of citizenship. Fundamentally, the dilemma for the refugee is exemplified by the loss of polity being equated with the loss of humanity.

Relating to the Refugee

Since the right to have rights becomes apparent only with expulsion from a political community, the concept is a revolutionary one, because this right stands apart from legal frameworks.

According to Arendt, mercy and friendship are the only means by which the outsider can be welcomed back into a political community.

The question then becomes how to encourage states to recognise the obligation of this relatively abstract right and, more importantly, how to implement it practically.

The response cannot simply be to place the right to have rights within the political context. It cannot become a right in itself, because it is only by virtue of a lack of membership that the right becomes relevant. Once man is entailed in a political community, he transgresses and leaves the right to have rights for substantive rights that underpin community relations. Thus, reintegration becomes an act of hospitality as a response to a moral obligation.

But why should states accept the moral burden of a foreigner, given the multitude of problems associated with integration?

The refugee must live somewhere and so he or she lives alongside the citizen as a fellow human, but exists as a shadow under the law. The continuous and strained relationship between the citizen and the refugee forces the outsider into the “conditions of savages”, as described by Arendt.

Arendt’s critique is an analysis of the relation that develops between the included and the excluded. In reality, refugees have few options. As reported by The Washington Post in 2008, when half of Bhola Island flooded, leaving 500,000 destitute, most moved into the nearby Bangladeshi Dhaka slums.

Accordingly, the citizen would come to view the conditions of the refugee as a moral failure on behalf of the state. Eventually, the citizen begins to question the legitimacy of the state. Dealing with the potential repercussions of a disgruntled citizenry and foreign guests requires an approach beyond the law and some would argue a re-conceptualisation of the role of the state.

Reconstructing State Hegemony

So how can we reconstruct the problem? Thomas Pogge, a contemporary political philosopher, advocates a controversial but potentially workable approach. In World Poverty and Human Rights, Pogge outlines an institutional design in response to the culmination of sovereignty at the level of state hegemony: vertical dispersion of sovereignty.

Fundamentally, the dilemma for the refugee is exemplified by the loss of polity being equated with the loss of humanity.

This system is somewhat akin to the development of the European Union (EU). Although the EU has faced a barrage of problems, the motivation to become part of the regional body has broadened the alliances of European citizens. There is a hope that conceiving of political membership beyond nationalistic ties might provide an alternative avenue for the reintegration of the refugee into some sort of wider political community.

Would distributing authority on a number of institutional levels become complex and bureaucratic? Perhaps. But it would also allow individuals to become part of more than one sphere of influence: the local, national, regional and global. In addition to political associations, individuals would participate in non-governmental organisations and global social institutions.

Crucially, as the citizen partakes in a “transnational scheme of social institutions”, the right to have rights would be recognised beyond the state level. Furthermore, moral obligations would be easier to accept because the citizen would recognise his greater influence in reconstructing institutions to align with general moral inclinations.

An Internal Paradox

It must be stressed that vertically dispersing sovereignty would not necessarily imply institutionalising the right to have rights. Essentially, there remains an internal tension within the concept of the right to have rights that cannot be resolved within any institutional system.

Arising out of conditions of exclusion, the right to have rights inherently asks whether ‘the right to membership’ can be legally instigated. But since the refugee stands outside the legal system (whether national or international), against whom does he or she make claims to restore those rights?

Presumably, refugees rely solely on the mercy of fellow human beings to welcome them back into a political community.

Including the right to have rights within transnational human rights will still not bring about any legal avenue within which to pursue the provision of that right.

This paradox is not intrinsic to the concept of the right to have rights. Rather, it is inherent to the political methodology used to structure the relation between law and rights.

Ultimately, we have a system in which rights and obligations – derived from moral intuitions – become available to us only through legal counterparts for practical purposes.

Conclusion

Finally, in anticipation of the potential criticism that this article may have neglected the realities of the current international relations system – namely, the scarcity of resources such as land, as well as continuing tensions between cultural groups – my aim was to provide a philosophical reinterpretation of the duty and function of nation-states in the face of an emerging power: the political outsider.

Conglomerating individuals into artificially bounded societies, and disposing of unlimited sovereignty within those bounds, interferes with the duty to promote human rights: the right to have rights being a primary obligation.

Addressing the issues of the outsider will require thinking and perceiving of our world in a drastically different way. Although theorists have difficulty offering a framework within which to incorporate the right to have rights, Pogge and Arendt’s critiques relocate responsibility from the arbitrary state to the fellow human.

It is hoped that membership in social and political institutions, which extend beyond state borders, would increase citizens’ responsiveness to the knock on their doors by a flood of refugees. But it remains a door that can only ever be opened voluntarily.

Zvjezdana Kragic recently completed a Liberal Studies degree, majoring in Philosophy and Psychology. She is currently completing Honours in Political Philosophy.

Marguerite Pettit explores Papua New Guinea’s contentious logging industry and its impact on the nation’s statehood.

Papua New Guinea declared its sovereign independence from Australia in 1975, marking the nation’s first step towards self-determination. Its constitution enshrines the rights of all citizens to participate in the nation’s social and economic development and to benefit from the commercial revenues generated by the country’s natural resources. Theoretically, Papua New Guinea was freed from colonial rule in 1975. In practice, the Government has permitted foreign companies to exploit the nation’s natural resources, often leaving lasting detrimental consequences in their wake.

Papua New Guinea’s forestry industry is a case in point. The logging industry, dominated by Malaysian giant Rimbunan Hijau, stands accused of human rights violations, including the sexual abuse of workers, as well as unsustainable and illegal logging practices. The industry has been the subject of international concern for a number of years. Both Australian and local NGOs have documented the destructive nature of commercial logging and the World Bank has made industry reform a condition of development assistance. However, these measures have failed to ensure that Papua New Guinea’s constitutional aspirations for a sustainable industry become a reality.

Despite this dire situation, Papua New Guinea continues to advocate the inclusion of mechanisms in the post-Kyoto Protocol that would allow other nations and polluting companies to offset their carbon emissions by paying to conserve its forests.

Theoretically, this is a novel idea that has the potential to reduce tropical logging, assist governments in developing nations to grow their economies sustainably, and provide much-needed revenue to the communities responsible for safeguarding the forests. However, given the size of Papua New Guinea’s logging industry and the history of poor enforcement on behalf of the Government, any attempt to regulate the conservation of rainforests in line with international obligations will be fraught with problems.

Papua New Guinea’s ability to engage meaningfully in multilateral climate negotiations is undermined by its failure to control the destructive effects of its domestic logging industry.

Papua New Guinea’s ability to engage meaningfully in multilateral climate negotiations is undermined by its failure to control the destructive effects of its domestic logging industry.

Customary Land Owners: Rights, Obligations and Trespass

Approximately 97 per cent of land in Papua New Guinea is customarily owned, meaning that any land use agreement between the Government and a commercial entity must first be approved by the customary landowners. Customary landowners are required to register title to their land before a land use agreement can be entered into. Landowners with title can then enter into Forest Management Agreements (FMA) with the Government, which then leases the land to third parties for commercial use. Whilst the Forestry Act 1991 requires third parties seeking timber permits to consult with landowners, this requirement is regularly disregarded.

In its 2006 study of Papua New Guinea’s logging industry, Bulldozing Progress, the Australian Conservation Foundation (ACF) found that illiterate landowners were routinely encouraged to sign agreements that they were unable to understand. The ACF recorded testimonials from customary landowners who revealed that they had been asked to sign documents without understanding their content and without duplicate copies being made available to them. Often, poor customary landowners are promised schools, medical facilities and infrastructure in return for access to their timber. However, as the ACF documented, these promises rarely materialise. 

The Malaysian-owned logging company Rimbunan Hijau (RH) has been operating in Papua New Guinea for nearly two decades. During this time, local and Australian NGOs have documented incidents of intimidation, abuse and illegal logging. Corruption is at the centre of its continued presence in Papua New Guinea; the country’s National Intelligence Organisation reported that payments had been made to politicians in exchange for increased access to forest resources and for the use of the police force in protecting company interests. Further, the ACF’s own investigations found that villagers had been physically assaulted by Papua New Guinea’s police force after complaining that the logging company had not fulfilled its contractual obligations to them as customary owners of the land.

Future Directions: Reform and Reward

Against this backdrop, Papua New Guinea has led the Coalition for Rainforest Nations in advocating the inclusion of ‘Reducing Emissions from Deforestation and Degradation’ (REDD) in the post-Kyoto Protocol. If mandated in Copenhagen, REDD will allow carbon credits to be created by conserving areas of forests that would otherwise have been logged without this protection.

Many rain-forested nations around the world are already preparing REDD projects in anticipation of its inclusion in the post-Kyoto Protocol. However, this mechanism requires considerable regulation, in ensuring that deforestation activities are not simply relocated to another area and that the forest communities in charge of conserving the area are compensated equitably.

Papua New Guinea must first demonstrate that it can regulate its own logging industry, before other nations pay it to conserve their forests.

The legitimacy of this mechanism is reliant on the proper enforcement of conservation. If deforestation simply moves to another area (a phenomenon termed ‘leakage’), the carbon credits cease to offset other emissions and will result in a continuation, if not increase, in overall emissions. REDD will require the monitoring of conservation areas, the enforcement of benefit-sharing frameworks for communities protecting forests, and the allocation of funds towards sustainable development goals. Failure to regulate conservation properly will also result in a distortion of the carbon market, with credits being bought and sold without having any effect on reducing carbon emissions.

Is Papua New Guinea Compatible?

It may be argued that the state of the forestry industry in Papua New Guinea warrants the pursuit of such measures for conservation. If government officials were secure in the knowledge that they could gain more revenue in the long run from conservation, would they continue to permit deforestation? Such arguments form the basis for the rationale behind REDD. However, Papua New Guinea must first demonstrate that it can regulate its own logging industry, before other nations pay it to conserve their forests.

In November 2008, certificates for one million tons worth of carbon credits from the Kamula Doso forests were issued to Nupan Trading Limited by the Office of Climate Change and Carbon Trade (now the Office of Climate Change and Environmental Sustainability). The absence of legislation enabling this prompted the then-Director of the Office, Dr Theo Yasause, to term the credits ‘sample credits’ when questioned about their legitimacy. He has since been suspended over the incident. Soon after, in April 2009, this same area was granted as a Special Agricultural Lease under the Lands Act 1996, giving logging rights to Tumu Timbers Limited, even though rights to the land had already been allocated to Nupan trading as carbon credits. An injunction has since been successfully granted over Kamula Duso by the National Court.

This kind of administrative mismanagement indicates that Papua New Guinea’s enforcement capacity is ill-prepared for the introduction of legal mechanisms allowing for the payment of ecosystem services. The allocation of one area of land for two distinct purposes jeopardises any confidence international investors have in the validity of the credits they are purchasing. It was for similar reasons that Australia’s Macquarie Group recently withdrew support for REDD projects in Papua New Guinea, citing concern for the integrity of their investment.

Dramatically reducing deforestation will be a key ingredient for stabilising greenhouse gas emissions. This can only occur if the parties to the United Nations Framework Convention on Climate Change (UNFCCC) agree to binding emissions cuts, and formulate policies for reducing deforestation that are not open to abuse from corruption at the enforcement level. Simply offering to pay developing nations with weak governing institutions to stop logging will exacerbate corruption and see negligible reductions in deforestation.

Papua New Guinea’s proposal to the world that developed nations should pay it and other rain-forested nations to conserve their forests is undermined by its apparent inability to manage sustainably its own forestry industry. The failure of the Government to protect its citizens against the interests of logging giants reinforces concerns over the willingness of the Government to ensure that revenue from REDD will reach the intended beneficiaries, that is, the customary landowners.

Regulating conservation will not be dissimilar to logging and will require comprehensive monitoring and enforcement, coupled with effective protection of the rights of customary owners: competencies that Papua New Guinea’s Government is yet to demonstrate adequately.

Marguerite Pettit has recently completed a degree in Economics and Social Sciences, majoring in Spanish and Government and International Relations.

Alice Chen Yan examines a legally peculiar and globally unique Singaporean law that empowers parents to sue their adult children for cash and care.

In a state where it is a crime to sell chewing gum, feed birds in the park, and not flush a public toilet, I was still surprised to discover, during my first class at Singapore’s National Law School, the extent of the state’s intrusion into the family home. Under Singapore’s Maintenance of Parents Act, parents may sue their grown-up children for a monthly allowance. Since the Act’s implementation in 1999, more than 400 applications have been made, and – in a clear indication of the court’s attitude – four in five applicants have successfully obtained an order compelling their children to support them.

This globally unique legal development was well received by Singaporeans following its enactment and this continues to be the case. There is now discussion of its importation into China, and possibly other Asian countries. However, both its legal foundation and moral justification are dubious.

Imposing a legal obligation on children to care for their parents is a legal oddity. It may be instinctive to liken it to investment law. Parents, in raising children, are making a smart investment in a life-term asset, which, upon maturity, will yield regular returns. But raising a child, like any investment, is not risk-free, and if you make a poor investment decision and end up with an ungrateful child, you may lose the entire amount you invested.

Alternatively, there may be an analogy to contract or debt law. A child, upon birth, enters into a contract with his or her parents, or takes on a debt. The parent provides care and financial support for the child until adulthood, and, in return, the child provides the same to the parent in old age. However, the crucial element of voluntariness is missing; a child has no say as to whether or not he or she is born.

Love cannot be a legal obligation, and genuine concern cannot be commanded by a court order.

One attempt to evade the common requirement of volition in legal relationships – in the case of Singaporean parents and their children – has been to liken this peculiar relationship to the special relationship between the individual and the state. The state provides essential public goods and services to its citizens, over which (for practical purposes) the citizens have no choice, and in return citizens pay taxes to the state. However, this analogy fails to account for the fact that in any democratic state, citizens can choose their governments through the election process, collectively remove them from power, and even relocate abroad. Children, if unhappy with their parentage, do not have similar powers to ‘choose’ their parents. One may argue that Singapore’s one-party political system has done away with democracy, anyway. But the parallel of the state-individual relationship runs into a further obstacle. Parents have a direct, personal and universally recognised fiduciary obligation to care for their children. The state’s obligations to its citizens are far less clear. In essence, the Singaporean state is imposing a debt on a person to provide care against his or her will, following the provision of care by his or her parents, who had a fiduciary duty to do so, anyway.

Legally, it does not make sense. But the locals argue that it is, nevertheless, a good law because it is ‘culturally sensible’. The Act upholds people’s common concern for filial piety and sends a clear message to ungrateful children, warning them of their just desserts should they violate this traditional principle. It appeals to traditional Asian values, which Singapore is determined to maintain, as evident in Prime Minister Lee Hsien Loong’s 2009 National Day Speech: “We Asians pay great attention to filial piety. This is a traditional virtue and we must maintain this.” It embodies a particular Singaporean phenomenon, where whenever a person runs out of explanations for a particular policy – whether it is a proposed bill or a canteen rule – they will scratch their heads and simply say: “You don’t get it, it’s Asian values lah.”

This impenetrable cultural divide between the Asian and Western worlds is often a convincing and sometimes tenable explanation in such cases. I noted the extent of this cultural chasm when Singaporean students in my class supported the Act unanimously, despite being the bearers of the Act’s burden in the future. Perhaps this should come as no surprise. It is common practice for children in Singapore, and for the most part in Asia as a whole, to expect full tuition funding and a lofty living allowance until they start working. Almost all live rent-free with their parents until they marry and many will not move out until they have children of their own. It was unthinkable to my classmates that I, not unlike many young Australians, moved out of home upon turning 18, with my parents cutting off all financial ties from that point.

Perhaps the Act is valid if it formalises long-standing and widely accepted social and cultural norms. Yet whilst my ignorance of ‘Asian values’ was at first a persuasive reason to avoid further engagement with the issue, after a month of hearing this rebuttal, I began to suspect that it was merely a convenient strategy to protect poor policy from criticism, under the mask of cultural sensitivity. When one dares to probe further, it becomes evident that the Act does not serve, and perhaps may even circumvent, its professed aims.

The Act merely upholds filial piety in a binding form. But the value of filial piety is one of substance; love cannot be a legal obligation, and genuine concern cannot be commanded by a court order. Court action between a parent and a child evidences a breakdown in their relationship, and in all likelihood intensifies existing animosity. The Act is a blunt instrument that makes an assessment of a maintenance payment based on the child’s average income, his or her circumstances, the parent’s monthly needs, and the parent-child relationship. Disobedience of a payment order is penalised by up to $5,000, or up to six months in gaol.

Whilst … the majority of Singaporeans support the sacred value of filial piety, they need to be wary of the state appealing to these sentiments as a convenient guise for ulterior motives.

If the Act were actually geared to maintaining and improving child-parent relationships, as it purports, surely it should utilise mediation and conciliation procedures. Furthermore, the Act should identify and seek to address the underlying problems that cause some children to ‘abandon’ their parents in later life. The present generation of young adults, sandwiched between feeding their own children and supporting their parents, may simply be unable to make sufficient payments to their parents. On the other hand, if children can afford to take care of their parents but choose not to, this suggests a shift from the values that the Act claims to represent.

A cynical observer will argue that the Singaporean Government is trying to pass the buck of elderly care to those who can be culturally pressured into accepting it. With the cost of healthcare, property and general living in Singapore escalating, it is a convenient political tactic to scapegoat responsibility for providing for the elderly. If this is to be believed, it will come as no surprise that the Singaporean Government has recently proposed an expansion of the Act to allow third parties, including nursing homes, to take action against children on behalf of their patients. Nor is it surprising that other countries in the region, which also have large elderly populations, have taken a growing interest in Singapore’s policy.

Whilst it remains clear that the majority of Singaporeans support the sacred value of filial piety, they need to be wary of the state appealing to these sentiments as a convenient guise for ulterior motives.

Alice Chen Yan is in her fifth year of a combined degree in Commerce and Law.

ASEAN, Southeast Asia’s regional association, has for much of its 42-year history been described as having failed to generate anything near satisfactory results. From its beginnings in 1967 with just five states, the association has grown to 10 with the controversial membership of countries such as Burma and Cambodia. A major criticism that ASEAN has faced is that it is an elitist association, meaning little to the people in the countries that make up its membership. From the Central Javanese rice farmer to the Thai fisherman, ASEAN remains an abstraction to the populations of its member states, especially as the gap between rich and poor widens within and amongst members of the nations of Southeast Asia. If ASEAN is ever to become a viable regional association, overcoming these problems is essential.

This was just one of the many issues debated at the inaugural ASEAN International Relations Students Conference held in October 2008. The conference was organised by students from the Faculty of Political and Social Science at Budi Luhur University in Jakarta, Indonesia, and brought together over 200 students from universities throughout Indonesia, as well as participants from Australia, Cambodia and East Timor. Attendees were addressed by academics from universities across Southeast Asia, as well as ASEAN staff.

As an Australian participant, and thus something of an outsider given Australia’s only connection to ASEAN is as a member of the ASEAN Regional Forum, I was surprised by the great hope placed in ASEAN’s ability to bring about a more integrated and secure Southeast Asia. Even more surprising was the interest in the opinions from those Australians in attendance. Was this perhaps an indication of a future generation of Southeast Asian leaders with an interest in surveying the opinions of those outside of the immediate Southeast Asian membership? Or perhaps a reflection of the regional standing of Australia? Whichever it was, the other participants showed enthusiasm for the interest that we as Australians had in Indonesia and ASEAN.

The conference was held at a pertinent time, with the ASEAN Charter coming into force in December 2008. The Charter is a significant step towards bringing greater legitimacy to the organisation. Apart from the improved efficiency that will come with the creation of new, permanent structures – which includes forming a Committee of Permanent Representatives in Jakarta – the Charter creates space to establish a human rights body.

Given this significant step towards a greater and more legitimate role for ASEAN, the mood of the conference was exceptionally positive. Whilst some attendees voiced disagreement over ASEAN’s importance and suggested Indonesia may benefit more from membership in other organisations, the majority of students in attendance were extremely supportive of a more integrated Southeast Asian region and many disagreed with the idea that ASEAN was an irrelevant organisation.

The conference centred on three main discussion areas based on the new communities that ASEAN hopes to found, namely socio-cultural, economic and security communities. As a member of the socio-cultural discussion group, a prominent theme that arose was the need to make ASEAN more relevant to the people within its member nations, thus increasing its legitimacy as a regional organisation. A second focus was the need for greater cultural understanding between nations – no mean feat given the cultural diversity found within many of the member nations, whose arbitrary borders are the legacy of colonial occupation.

This second element was heavily discussed, as many participants considered ASEAN borders to be similarly arbitrary. It was clear from this discussion that, although participants were supportive of a more internationally legitimate ASEAN, of more importance was its legitimacy to the people of the region. Rather than creating an artificially monolithic ASEAN identity, recognising cultural diversity was thought a more important step in maintaining a cohesive region.

“From the Central Javanese rice farmer to the Thai fisherman, ASEAN remains an abstraction to the populations of its member states.”

Education was suggested as a tool that could overcome this problem. Teaching students about the history and culture of the ASEAN member nations could help to ensure that future generations grow up with a better understanding and increased interest in the region. Similarly, an increased role for media in promoting not only cultural understanding between nations, but also the work of ASEAN to populations throughout the region, was suggested.

However ambitious the objectives that the student participants developed for ASEAN’s future, it is clear that ASEAN has not, and will not, in the immediate future fade into obscurity as many predicted it would. The energy witnessed at the conference is likely to intensify in the future, given that the next generation of leaders from within the Southeast Asian countries, especially Indonesia, are enthusiastic and hopeful about the future of ASEAN and the progress that it can make. Given that integration is an important aim of ASEAN, hopefully these conferences will continue into the future, bringing together the next generation of leaders with a fresh outlook on their regional organisation.

Ilana Idrus is in her fourth year of a Bachelor of Arts (Liberal Studies). She thanks the Australian Education International for sponsoring her attendance at the ASEAN Conference.

At King’s Cross, Sydney’s red light district, sandwiched between strip clubs and all-night kebab shops are brothels and ‘massage parlours’, where female migrants are kept for sexual servitude. Without a passport or a means to fight the constant threats of rape and beating, the migrant women represent part of the global slave trade movement that exists beyond Ben Hur and the Atlantic Slave Trade.

The Australian Dream?

Jetsadophorn Chaladone was 13 when she left her home in Thailand to work as a nanny in Australia.  Instead, upon arrival in Sydney, she was placed in a brothel, where she was saddled with a $35,000 ‘debt’, or 600 ‘jobs’ to do.  10 days later, she had already serviced about 100 clients. She was deported back to Thailand, where, in the absence of appropriate laws, no criminal charges were laid against her traffickers. The story is altogether too familiar: young women leaving home to pursue a better life abroad, often hoping they will be able to send money home to assist their families, are unaware of the conditions that will greet them upon arrival.  Some women come to Australia voluntarily to work as nannies or bartenders, just as Australian women go to teach English in Japan, only to find they have a ‘debt’ upwards of $50,000 dollars, which is to be paid off by doing 500 to 1000 ‘jobs’. Victims report working up to 20 hours a day to service clients. If they are lucky, they will have one free day to earn money to send home, with the brothel owner still taking a 70 per cent cut. All the while, threats of alerting Australian immigration authorities, as well as physical and emotional abuse, keep them chained to the bed.

In 2007, Chaladone finally found relief in a landmark decision by the Victims Compensation Tribunal of NSW, in which she was awarded damages for the “moderate to severe depressive disorder” she suffered as a result of her experience in Sydney. It was a marked change from her first experience with the Australian legal system in 1995. How has Australian law evolved over the past decade to combat human trafficking, and what issues remain unresolved?

Laying Down the Law

Legislative reform relating to trafficking commenced in 1999 with the Criminal Code Amendment (Slavery and Sexual Servitude) Act, which introduced offences for slavery, sexual servitude, and deceptive recruiting for sexual services into the Criminal Code Act 1995. At the urging of NGOs such as Project Respect, further reforms were passed in 2005 through the Criminal Code Amendment (Trafficking in Persons) Act, which included offences for child trafficking and ‘debt bondage’, punishable by up to 25 years’ imprisonment.
In September 2005, Australia ratified the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (especially Women and Children), as was promised with the passage of the reform legislation. Currently, there are 117 signatories. Notably absent are China, Malaysia, and North Korea. Problematically, these three nations are starting points for trafficking within the Asia-Pacific region. Moreover, despite the potential that this protocol represents, many of the signatories made reservations regarding Article 15, Paragraph 2, which allows disputes between two signatories to go before the International Court of Justice (ICJ). This article not only limits the scope of the Protocol, but also highlights the fact that signing the instrument may well be an empty gesture.

“Victims fear approaching the authorities for help, as this could also lead to detention and subsequent deportation.”

Complementing toothless laws is a lack of political will. In many cases, countries see the prosecution of foreigners engaging in sex tourism as sufficient to appease the international community, while continuing to allow human trafficking within their borders. This is particularly alarming given that the number of prosecutions for human trafficking in the Asian-Pacific region has halved since 2005. Mu Sochua, the former minister for Women’s Affairs in Cambodia, observes that the number of annual prosecutions of Cambodian nationals and foreigners is roughly equal, despite estimates that 70 per cent of the demand is local. She observes: “It is easier to catch a foreigner and also the government wants to have showcases to make itself look good – that Cambodia is actually taking care of this problem of human trafficking, which is really not the truth.”

One of the greatest issues for the international community is reconciling the need to use aid as a political motivator for change, such as through the Australian-funded program for Asia Regional Cooperation to Prevent People Trafficking, with the reality that poverty is one of the major catalysts for trafficking, and so to deny aid is merely to perpetuate the problem.

Short-Changed?

Even though legal reforms have allowed for significant prosecutions, there still remain issues relating to the availability of visas to support victims’ recovery.  In 2003, the Australian Government released its Action Plan to Eradicate Trafficking of Persons, which included a $20 million dollar package and visa support for victims.  However, in order to be eligible for a visa, the victim needs to cooperate with the Australian Federal Police (AFP) in the viable prosecution of traffickers. Jennifer Burn, of the Anti-Slavery Project at the University of Technology, Sydney, says: “because the visas are so difficult to obtain, […] trafficking victims will be placed in immigration detention centres if they cannot give the police sufficient evidence to lead to a prosecution.  Fear of detention has deterred women from voluntarily coming forward to give evidence to the police and possibly support a criminal prosecution.”

The current legislation works as a double-edged sword. Victims fear approaching the authorities for help, as this could also lead to detention and subsequent deportation. The statistics of successful prosecutions are alarmingly low: as of May 2007, of the 125 cases of human trafficking investigated by the AFP, only 10 had been referred to the Director of Public Prosecutions.

How to Ask for ‘Help’ in Thai

Changes in the legislation do not necessarily translate into immediate compensation for victims.  Language is one of the most obvious barriers that victims face. The human trafficking hotline is answered by the AFP’s English-speaking switchboard operator. Even Project Respect, a leading non-governmental organisation that promotes the interests of foreign sex workers, does not have a multilingual website. An immigrant child who attends school regularly could take up to six months to master enough language skills and confidence to ask for an interpreter. It could be even more difficult for a victim to acquire the language skills necessary to ask for an interpreter, let alone to communicate his or her circumstance.

A lack of lingual support means that, by the time that victims receive help, violence, rape and exploitation have already taken place. Women are most likely to seek help while they are seeking an escape route, before they become desensitised to violence and lose the psychological strength to escape their situation. Italy’s national ‘Numero Verde’ (green number) – with hotlines in Albanian, Bulgarian, English, French, Russian, Romanian and Spanish – offers a model that Australia could adopt to ensure it reaches those women who most need help.

“Only the Cost of a Lousy Second-Hand Car, Really!”

The recent developments in the Australian government’s policies mirror the popular perception of the crisis as an ‘Asian prostitute murder mystery’. The investigation does not begin until after the trafficking has taken place, and the remedies are reactive rather than proactive.  The media representation of human trafficking as a crime by an Asian migrant against an Asian woman, mediated by Asian parents who ‘sell’ their children into slavery, localises what is an transnational crisis, and stems popular misconceptions within Australian society.

“The media representation of human trafficking localises what is a transnational crisis.”

Conspicuously absent in the public discourse are the predominantly white, Australian, male customers who generate the demand for sex slavery. When this group is mentioned, its members often assume the role of benevolent gentlemen who rescue damsels in distress by offering support and assistance with immigration procedures.

Human trafficking represents ‘home delivery’ sex tourism and cannot be viewed in isolation from the racialised image of Asian women in Western culture.  From the Google advertisements for Asian mail-order brides, to a film that invokes the Thai victims of domestic violence for humorous effect, pop culture normalises sexual exploitation and violence against Asian women.  Project Respect further argues that one of the prominent reasons for the trafficking of Asian women to Australia is the “racialised ideas that Asian women have certain qualities, for example that they are more compliant and will accept higher levels of violence.” In his book War of the Sexes (1992), Ken Morgan, who married a Filipina bride after three divorces, writes: “You will need about $3000 or maybe a bit more … It’s not a lot of money compared to what you earn in twelve months, only the cost of a lousy second-hand car, really!” Although Morgan’s book was written almost 20 years ago, the prevalence of this attitude is evident in the higher-than-average level of violence faced by the victims.

The cultural insensitivity and racialised perceptions that penetrate even the media were initially produced to raise awareness of the crisis. The 2005 TV mini-series Human Trafficking followed a team sent to search for a virtuous, white, American girl who was kidnapped for the purposes of sexual servitude in the Philippines. Unfortunately, this portion of the series was shot in Thailand with actors and extras who were obviously Thai. Such refusals to acknowledge variances in language and culture typify the view of Asians as a racial group, rather than as oppressed individuals with specific grievances, and serve to prevent the public from responding to the victims appropriately.

Conclusion

Despite the successes of the past decade, many challenges remain: we need a legal framework that does not criminalise victims, as well as more long-term solutions aimed at reaching out to victims and changing popular attitudes within Australia. The financial crisis brings with it more concerns for trafficking in the region, as Foreign Minister Stephen Smith commented in April 2009: “The severe downturn in the world economy will push more migrants into the hands of people traffickers as they seek better lives abroad.”

Neroli Austin is in her fourth year of a combined degree in Law and Economics, majoring in Economics. Misa Han is in her third year of a combined degree in Law and Arts, majoring in History.

Tragedy as a result of one’s own ideas is like a knife slicing off its own handle.

– Cambodian proverb

When discussing the murderous reign of the Khmer Rouge in Cambodia from 1975 to 1979, this ancient proverb is particularly fitting. Led by Pol Pot, the Democratic Kampuchean regime envisioned a Cambodia unaffected by the past; they brought the nation back to Year Zero and instigated what they considered to be a communist, agrarian utopia. In truth, the Khmer Rouge killed more than 1.7 million of their own people through execution, starvation and overwork.

This year, the Khmer Rouge is finally being put on trial. In March, the Extraordinary Chambers of the Courts of Cambodia, or the Khmer Rouge Tribunal, commenced. One of five indicted was the Director of the infamous Tuol Sleng (S-21) prison, 66-year-old Kaing Guek Eav, commonly known as Comrade Duch. At least 15,000 people were tortured and murdered for political dissent in his prison.

Khmer Rouge officials have not faced their victims until now. Although Pol Pot and his foreign minister Ieng Sary were tried by the newly installed People’s Republic of Kampuchea in 1979, the People’s Revolutionary Tribunal was arguably for show and lasted for only five days. Pol Pot and Ieng Sary were not present to face the charges or the death sentence handed down for genocide and crimes against humanity. This time, however, victims are able to directly confront their tormentors in court.

While Ieng Sary is scheduled to face the Tribunal, Pol Pot is no longer alive. In 1998, he died under house arrest in the Cambodian jungle while the international community was still debating how and when to try him. There has been much debate over why the United Nations and the Cambodian government have taken so long to see the Khmer Rouge Tribunal come to fruition.  The process has been rife with disagreement over the level of Cambodian involvement in legal proceedings and the number of Khmer Rouge officials indicted.

Dr. Milton Osborne, Visiting Fellow at the Lowy Institute for International Policy, says: “The tribunal faces a fundamental problem of believability … observers have reason to ask why it has cast its net in such a limited fashion and after such a long time since the Pol Pot regime was pushed out of Phnom Penh.”

“Dr. Milton Osborne, Visiting Fellow at the Lowy Institute for International Policy, says: ‘The tribunal faces a fundamental problem of believability … observers have reason to ask why it has cast its net in such a limited fashion.’”

“If the hope of many observers was that the tribunal would both provide an answer as to why the Pol Pot regime functioned as it did and lead to the conviction of those responsible for its actions, then it is far from clear that these goals will be achieved. Despite Duch’s readiness to testify in detail to his actions, it is not certain that the other defendants will do so … Given the age and poor health of the other defendants, they may never come to trial. Indeed, the current timetable is [such that] they will not be before the court until next year.”

Unlike similar hybrid tribunals set up by the United Nations in Sierra Leone, the judges of the Khmer Rouge’s Tribunal are mainly Cambodian. In the pre-trial and trial chambers, where charges are laid and cases heard, Cambodian judges occupy three of the five judicial posts and five of the seven positions in the Supreme or Appeals Chambers. However, an international judge will join with the Cambodian judges for a decision to be confirmed. In another unusual move, there are two co-prosecutors: one Cambodian and one foreign.

The high level of Cambodian involvement has been the source of a number of corruption allegations. In 2007, accusations emerged that Cambodian court staffers had to pay kickbacks to the government official who gave them their job. Further allegations of corruption surfaced last July, prompting the United Nations to initiate a review of the tribunal’s ability to withstand scrutiny.  In April, the results of this review had still not been released and talks between the United Nations and the Cambodian government had failed to produce an agreed set of ethics monitoring mechanisms.

The corruption allegations have created further controversies for the Tribunal. The United Nations Development Programme has frozen funding from international donors to the Cambodian side of the court over suspicions of inappropriate usage, pushing it to near bankruptcy. This continues despite some nations such as Australia, which granted $USD456,000 last year, calling for their contributions to be released. The defence team of one of the indicted, Nuon Chea, filed a request to the Tribunal’s co-investigating judges to examine the corruption allegations, but the judges denied the request, claiming that probing such allegations was outside their jurisdiction.

Dr Osborne says that the allegations of corruption must be fully investigated.

“If corruption is found to have occurred but no action is taken as a result, this will damage the tribunal’s reputation and so its credibility. I have long argued that both in Cambodia and elsewhere where endemic corruption exists it will only be possible for it to be eliminated … when it is tackled at the highest levels of government. There seems little sign of this happening in Cambodia.”

“Although Pol Pot and his foreign minister Ieng Sary were tried by the newly installed People’s Republic of Kampuchea in 1979, the People’s Revolutionary Tribunal was arguably for show and lasted for only five days.”

In recent years, the Cambodian government has tried to overcome corruption allegations by promoting a new image of accountability. Heng Hok, the Press Secretary for the Royal Cambodian Embassy in Canberra, said the government was “deepening reforms in all sectors” and that the trials were an opportunity “to promote the end of impunity in Cambodian society”. However, Prime Minister Hun Sen has strongly opposed the foreign co-prosecutor’s push to investigate at least six more Khmer Rouge officials.

In an April edition of Cambodia’s leading newspaper, the Phnom Penh Post, Prime Minister Hun Sen opined that pursuing other Khmer Rouge figures would lead to civil unrest.

“I would prefer to see this court fail than for war to come back to Cambodia,” he said. “That is my absolute position … just focus on these few people.”

Prime Minister Hun Sen and other government officials were low-ranking members of the Khmer Rouge. Few professionals with administrative experience meant that when the new People’s Republic of Kampuchea government was installed, there was little choice but to employ officers of the previous regime.

A report compiled in March this year by a leading genocide research centre, the Documentation Centre of Cambodia, found that 57 per cent of the more than 1000 Cambodians surveyed supported the prosecution of up to 10 more Khmer Rouge leaders. However, in former Khmer Rouge areas, low-ranking soldiers fear that if the tribunal expands its caseload, arrests could spread further down the regime hierarchy. Youk Chhang, the Director of the Documentation Centre of Cambodia, says “we need to leave this to judges to decide” and hopes that the tribunal can deliver “a final judgment of what happened under the Khmer Rouge.”

But what of the likely outcome of the Tribunal?

Dr. Osborne says he has little doubt Comrade Duch will be convicted of crimes against humanity.

“If the other defendants remain alive to be brought to trial, I would think it likely that they, too, will be convicted. But it is highly likely that they will seek to argue that they were not prime movers within the regime, and that others, including Norodom Sihanouk [the former King of Cambodia] should be brought before the tribunal.”

As the Cambodian government continues to oppose further prosecutions, however, the likelihood of further individuals being called to account remains doubtful. With the Tribunal’s future also clouded by corruption allegations, justice seems a long way off for the victims.

Diana Tjoeng is in her third year of a Bachelor of Arts (Media and Communications), majoring in Chinese Studies and English.

The coca leaf – small, dark green and relatively unremarkable – would probably not be noticed by an untrained eye. Tourists arriving in La Paz eagerly take photos of Indigenous women selling the plant, while bewildered locals look on. As you chew the coca leaf your mouth numbs, your headache clears and breathing becomes easier at the extreme altitude. Apart from these humble side effects, the leaf is used for another purpose: as the base ingredient in the manufacture of cocaine. It is this fact that has caused an international legal, political and economic war for over 48 years.

The Andean people have been chewing the coca leaf for centuries, with British anthropologist Alison Spedding revealing traces of the leaf amongst ancient Peruvian storehouses dating back to 1,000 BC. After their first introduction to coca, tourists realise that it will take a lot more for the effects of the leaf to turn into those of its more infamous by-product. 72 chemicals and extensive processes are needed to turn the green coca leaf into a white powder, and tourists’ initial excitement soon wanes as they realise how normal and everyday the presence of the coca leaf is to the Bolivians.

However, the coca leaf has come onto the international stage once more. It is wedged between U.S.-backed arguments that all traditional practices should be banned and the calls of the new Bolivian President, Evo Morales, for the leaf to be returned to its rightful position as a traditional plant that has been used not only for its physical benefits, but also as a symbol of Indigenous life.

In 1961, the UN adopted the Convention on Drug Control, officially defining the coca leaf as a drug in the same category as cocaine, and instructing that the chewing of the coca leaf should be abolished within 25 years of a signatory signing the Convention. Bolivia signed the Convention in 1976, but although the deadline for abolition expired in 2001, the coca leaf remains as prominent as ever in Bolivian culture.

In general, Bolivia saw few of the consequences of signing the 1961 Convention until the 1980s. In 1988, the UN adopted the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances to reinforce both the 1961 Convention, and the 1971 Convention on Psychotropic Substances. On July 19, 1988, Bolivia passed the infamous Law 1008, which promoted voluntary coca crop eradication and the enforcement of a national legal limit of 12,000 hectares of coca crop for traditional use. These 12,000 hectares were to be restricted to the Los Yungas region and all other crops, including those of the traditional Chapare region, were to be destroyed.

“As you chew the coca leaf your mouth numbs, your headache clears and breathing becomes easier at the extreme altitude.”

Current estimates place the size of the Bolivian coca leaf crop anywhere between 22,000 and 25,000 hectares. Therefore, any excess of the 12,000 mark is open to U.S.-backed eradication programs, most often conducted by the U.S. Drug Enforcement Agency (DEA).

Tensions between Bolivia and the U.S. have escalated since the 2005 election of the outspoken Indigenous President Evo Morales, who has staunchly opposed increased U.S. pressure to begin expanding coca eradication. In early March 2009, the International Narcotics Control Board (INCB) released a report stating that to “allow the cultivation and consumption of the coca leaf … in particular coca leaf chewing … is contrary to the provisions of the 1961 Convention on Drug Control”. In the same month, Morales attended the UN Commission on Narcotic Drugs, where he attempted to convince the UN to remove the coca leaf from the narcotics list and to reintroduce it as a legal plant.

The argument Morales presented to the Commission was that the drug classification was a “mistake” and that it is time “for the international community to reverse its misguided policy toward the coca leaf”. This argument is rooted in the belief that the coca leaf is an integral part of Bolivian culture and identity, and that its eradication, based on what are perceived to be U.S. interests, is a form of Western neo-imperialism.

The unwillingness of the U.S. to soften its hardline approach is not aiding the problem in any way. The attitude that “there is no other use for coca but cocaine” and that the properties of the coca leaf are in fact dangerous is pervasive within their proposed strategy.

In the 1990s, the World Health Organisation presented a report stating the coca leaf did not present any foreseeable health problems. In 2006, it released a further report, which identified the ability of the coca leaf to suppress appetite and increase endurance, as well as recognising the leaf’s historic use “for the relief of gastrointestinal problems and respiratory ailments and treatment of altitude sickness”. According to a 1975 Harvard study, the leaf is rich in phosphorous, calcium, riboflavin, vitamins, and iron.

“The coca leaf is an invaluable and integral part of Bolivian life. U.S. attempts to eradicate it represent a narrow-minded assault on traditional Bolivian life.”

By invoking the criminalised status of the coca leaf, the U.S.-backed ‘War on Drugs’ has been able to continue its operations for eradication within Bolivia. The well-funded project is largely based on the false notion that it is possible to solve U.S. domestic narcotic issues by stemming international supply.

By pretending to shrug off Morales’ dismissal of DEA officials and expulsion of U.S. ambassadors from Bolivia, the U.S. has found itself between a rock and a hard place. Refusing to pull out of a process that has already cost it so much, the U.S. is now left fighting a determined and popular leader who, with his famous statement “Coca Si, Cocaina No”, has risen on a wave of cocalero support from the very section of the population that the U.S. is attempting to influence.

The election of Morales as head of both the Coca Growers Union and the Movement Toward Socialism (MAS) party reflects the Bolivians’ desire for a strong nationalistic leader who will rectify Bolivia’s long-standing lack of international confidence. Since being elected, Morales has taken a firm and confident stance against U.S. intervention. Ignoring U.S. requests, he has expanded policies regarding coca growth, allowing an extension to 1,600 square metres, otherwise known as a cato, of coca leaf cultivation per family. U.S. intervention in Bolivia’s domestic affairs has become highly unwelcome, with the coca leaf, as an integral aspect of Bolivian cultural identity, being used as the rally call.

Coca leaf eradication programmes, as well as the overarching ‘War on Drugs’, have generally been considered a failure and the U.S. has not been able to offer any new or flexible alternatives. Cocaine is still widely available within the U.S. and its price has fallen significantly over the past two decades. The U.S. strategy will continue to fail until it recognises the basic economic rule that demand will inevitably create its own supply. Attempting to prohibit the coca leaf has only further financed organised crime, both in Bolivia and the U.S.

Isolated and impoverished peasants looking to sell their excess crops will attempt to sell it to the highest bidder, which in most cases will take the form of the ‘narco-trafficker’. High demand for cocaine thus leads to greater profits for peasants, whose only other option is to destroy their excess crop and forsake much-needed money.

The question is not only one of economics. Why should Bolivian coca growers change what they have been growing for centuries in order to appease another state? In essence, the U.S. is holding Bolivia, as well as Peru and Columbia, responsible for its domestic problems of drug abuse.

The double standards of the situation are harshly illuminated when the scenario is inverted. If Bolivia were battling national alcoholism, would the U.S. ever stand to be told to stop producing the barley that goes into the manufacture of alcohol? The situation is further exacerbated by the U.S. Government’s allowance of the Coca-Cola Company to import the coca leaf to flavour its famous soft drink. A member of the constituent assembly, Sabino Mendoza, asked the simple question: “Why they don’t also ban Coca-Cola? If they think coca is poisoning their people, why they don’t also ban alcohol and tobacco?”

The solution may be in line with what Morales and others are suggesting. The coca leaf market should be expanded rather than contracted by diverging into markets where the coca leaf can be used in toothpaste, confectionary, teas, and drinks. Allowing a greater legal base of demand will soak up excess supply and allow fewer coca leaves to fall into the wrong hands. Such projects have already been successfully implemented in Peru, where the state company Enaco has begun exporting coca teas to South Africa and supplying coca as an anaesthetic to Japan and Belgium.

Dogmatically pursuing the hardline will not win the U.S. the results for which it is searching. The coca leaf is an invaluable and integral part of Bolivian life. U.S. attempts to eradicate it represent a narrow-minded assault on traditional Bolivian life. A new, more flexible and more pragmatic solution is required and it may be time to turn an ear to those straining to be heard. It might just be time to embrace the coca leaf instead of persisting in the fruitless war to destroy it.

Alexandra Dzero is in her second year of a Bachelor of International and Global Studies, majoring in Political Economy and Government and International Relations.

According to Aristotle, politics is ethics: both in terms of the ends it attempts to serve, and the means by which this should be achieved. Because politics deals with the fundamental question of what we ‘ought’ to do, it is intimately intertwined with the ethical conception of the ‘good’ and the behaviours that must be attributed to its achievement. Misunderstandings of the nature of ethics and politics attempt to construct a clear line between issues deemed to be ‘practical’ and therefore external, and those considered ‘moral’ and therefore belonging to the ethical realm.

This underlying assumption (particularly prevalent within international relations theory), which claims that the pragmatic is distinguishable from the ethical, is wrong. Rather than existing externally from the ethical realm, what we classify as ‘pragmatic’ simply offers an alternate ethical frame. Ultimately, all political theories are ethical ones, classifying actions as morally right or wrong, on the basis of how they function within their own understanding of the ‘good’ (the ‘telos’) and therefore prescribing what ‘ought’ and ‘ought not’ be done.

‘Ethics’ versus ‘practicality’: A shaky morality

The matter as to whether international or political dilemmas can or should be construed as either inside or outside the ethical realm raises further questions regarding perceptions of ethics, politics and the relationship between them. Fundamentally, the debate hinges on our definition of ethics and politics, and from this, how, if at all, we choose to distinguish between the ‘moral’ and the ‘practical’.

A broad conception of ethics would present this definition as the principles that guide and regulate human behaviour. Whereas morality has to do with the rightness or wrongness of an action, ethics deals with the wider framework of ideas that determine this judgment. Aristotle notes that “every inquiry, and simultaneously every action and pursuit, is thought to aim at some good”. Ethics is teleological; that is, it conceptualises an ultimate ‘good’ and thus sets out a normative structure as a means to achieve that end.

In understanding politics, it is necessary to understand ethics, not simply because one informs the other, but more fundamentally because politics is the epitome of ethics. As politics has the capacity to legislate over society (domestic or international), prescribing what we are to do and from what we are to abstain, it is by its very nature a normative discipline. Politics is ‘architectonic’ in that the decisions it makes assume the existence of, and aim towards, a particular ‘good’, and in doing so articulate a particular mode of behaviour in the process. Politics is therefore an ethical realm; its aims are concerned with an ultimate end. The idea that a political issue might be deemed beyond the scope of ethics is therefore inherently contradictory.

Opposing this view is a conceptualisation that presents ethics and politics as distinct entities, drawing a clear line between the ‘moral’ and the ‘practical’ areas of an issue. Machiavelli’s foundational realist text The Prince epitomises the attempt at drawing this distinction. Rather than making claims about man as he ought to be, Machiavelli endeavours to record man’s nature and make suggestions on how this is best served. Practically speaking, all individuals are self-interested and should therefore do whatever is necessary to achieve and maintain power, and, in doing so, reject what might be classified as ‘moral behaviour’. By pitting moral and practical against each other, Machiavelli seeks to distinguish a politics beyond ethical frameworks.

Typically, international relations frameworks tend to create the same false ethical dichotomies between theories of state behaviour. The most prominent of these is the distinction between realism (which is practical, detached and amoral), and liberalism (normative and moral). Contemporary realists, such as Carr and Morgenthau, reassert Machiavelli’s claim. Whilst it cannot be denied that both of these frameworks contain distinct and at times conflicting perspectives, the classifications made on the basis of morality are flawed because they misunderstand the nature of ethics.

The translation of this alleged theoretical disparity to the real world of international politics is evident in the rhetoric of state leaders and diplomats. Recently, U.S. Secretary of State Hilary Clinton asserted that: “Foreign policy must be based on a marriage of principles and pragmatism, not rigid ideology.” Policy documents, such as the International Commission on Intervention and State Sovereignty (ICISS) paper on the Responsibility to Protect, distinguish between a ‘practical’ and a ‘principled’ approach. By failing to identify the fact that the pragmatic can be an ethical or principled framework, the paper demonstrates both a misunderstanding that leaders have towards their roles and decisions, and also a confusion as to the fact that the actions they take might somehow be neutral or ‘outside’ of moral judgment.

Rather than engaging with ethics as a philosophical umbrella under which different and competing understandings of the ‘good’ operate, a popular tendency is to conceptualise it through a narrow and individual lens. The question of ethics is brought down to a purely deontological perspective: a code of moral absolutes.  This characterisation misappropriates and confuses the distinction between ethics as an overarching and inescapable system to comprehend teleology, and the specific ethical interpretations that operate internal to it.

Morality is not merely an autonomous realm of conduct, unconnected to nature or self-interest. It is the opposite: integrated with each of these in accordance with what might be deemed ‘good’. What distinguishes ethics is not the fact that it has a concrete and absolute conception of the ‘good’ in and of itself, but that the frameworks within it conceive this end in accordance with their own pursuits. Of course, this means the existence of competing and irreconcilable internal interests of what this ‘good’ might be, but that does not mean it does not exist to begin with.

Because the arguments of realism pit ethics against pragmatism, by basing themselves on a flawed and limiting understanding of what ethics and morality entail, the assertion that political decisions are somehow external to ethics cannot stand. Aristotle’s concept of an integrated politics and ethics (a blurred line between what we might deem the practical and the moral) must hold.

Beyond a false dichotomy: Pragmatic matters as ethical frames

Flowing from this, we find that in the false dichotomy of ethics versus pragmatism, the arguments, theories and perspectives that we associate with the latter are ethical frameworks in and of themselves. Contrary to assertions that ‘practical’ behaviour is amoral and therefore not party to the ethical realm, it is false to believe that it does not yield to an ethic. Machiavelli’s language, at the foundation of this debate, is telling; he is advocating a ‘should’, a set of practical actions that ought to be followed to achieve an end of power. Applying Aristotle’s conceptualisation of ethics to Machiavelli’s theory simply sees power as the ultimate ‘good’. In this sense, what The Prince deems to be immoral or amoral behaviour is the necessary means to achieve it. Within this ethical understanding, ‘evil’ is accepted as practically good or useful, and individuals are morally obligated to adopt this behaviour if they are to achieve the desired ‘telos’, or powerful ends.

Realism is often classified as amoral because of its claim that it does not strive to be normative. Unlike liberalism, which describes a world with the potential for cooperation, realist theory merely focuses on describing the world as it is: anarchic, with states vying for power in order to survive. However, alongside its description of the status-quo, realist thought also analyses the behaviour of states: monitoring motivations, and the success and failure of actions in relation to how they serve their attempt at survival.

In this way, realism deals just as much with prescribing particular behaviour as liberalism does. If the international system operates in a particular way, and states must do whatever it takes to survive in this system, survival becomes the ethical ‘good’. As a result, any action that perpetuates this ‘good’ – no matter how it might be deemed through other lenses (invasion, nuclear proliferation, state sovereignty etc.) – is morally right. Within the ethical framework of realism, states ‘ought to’ take actions to secure power, in order to achieve the ‘good’ of survival.

Furthermore, if, according to realist thought, the state represents the primary actor in the international relations system, it must also be considered the ultimate moral force, because its existence creates the possibility for an ethical political community to exist domestically.  In this understanding, the existence of the state represents the supreme ‘good’, and an ethic of responsibility towards its protection is thus required. Therefore, states ‘ought’ to focus on policies that strengthen sovereignty and security, and ‘ought not’ accept behaviours that threaten these.

For this reason, any distinction made between ethical and pragmatic approaches is intellectually unsound. Terms like ‘ethical realism’ (whose antithesis is ‘amoral realism’) are not just synonyms, but miss the point. Perceptions of issues in terms of pragmatic considerations simply emphasise a different kind of ‘good’. They are not, as Machiavelli might argue, external to ethical concerns, but rather yield to their own internal ethic.

Reconsidering the issue: A situated debate between ethical frames

Political and pragmatic theories, therefore, are not external to the question of ethics when it comes to the consideration of matters of international relations. Even more fundamentally, if politics, as we have seen, is essentially concerned with the determination of behaviour in light of what is views to be the ‘good’, then it follows that we conceptualise politics as ethics. In this light, it cannot be argued that any political issue falls outside of the scope of ethical debate.

Situations in international relations considered through a framework of realism are ethical dilemmas. Justifications for actions on the basis of being ‘practical’ and therefore non-ethical, whether made within the theoretical realm or espoused by our leaders, are grounded in a false approach to ethics. International relations needs to move forward and embrace the full ramifications of the frameworks it adopts, including their ethical dimensions. Until this occurs, we will remain muddled in our efforts and limit our ability to explain and shape the politics around us.

Rebecca Beard is in her fourth year of a Bachelor of Arts.

Coffee farmers ... worried about the Central America Free Trade Agreement

Robert Knight argues free trade is not always win-win.

Marcos Gonzalez barely ekes out a living on his 16-acre farm in the mountains of Cedral. Each square-inch is worked year round to generate the produce that has sustained his subsistent level lifestyle year after year. It is a life typical of rural Costa Rica. But his biggest worry these days is Costa Rica’s free trade agreement with the U.S., which will only encourage the stiff market competition he already has with some of America’s biggest corporations.

A man who does just about everything with a machete, Mr Gonzalez depends on selling about 13 tonnes of coffee a year to finance the rest of his tiny operation. Since Costa Rica’s legislature approved the Central America Free Trade Agreement (CAFTA) in October 2007, Mr Gonzalez has faced the prospect of competing with the large, mechanised American producers that are expected to invade the market over the next few months. His modest surplus is bound to suffer.

As part of a team of Australian and Canadian volunteers, our role was to develop a long-term working project that would ensure the longevity of Cedral’s financial future in the face of powerful corporate competition.

“Corporations have little incentive to pursue the ‘just profits’ that will keep domestic markets profitable for local farmers.”

However, it is more or less assumed that these vulnerable communities should be the ones undergoing substantial structural change or else ‘risk losing the lot’. Defendants of the pact believe it encourages development and foreign investment. By contrast, critics understand it as a one-way street benefiting U.S. multinational corporations at the expense of Central America’s small businesses and farmers.

From this perspective, the presumption of ‘change’ should originate in the decisions of multinational corporations. But serious consideration is seldom given to such a suggestion. Indeed, it would seem nonsensical for corporations to expand their operations if those expansions were exactly the reason for restrictions and change.

As such, corporations have tended to approach these areas with little regard to their social impact. Corporations have little incentive to pursue the ‘just profits’ that will keep domestic markets profitable for local farmers.

Coffee farmers in particular see the treaty as an unmitigated disaster that provides “U.S. companies … who already have better technology and receive huge subsidies … with further profits”. It costs about U.S.$450 to produce a tonne of coffee in both countries, but the Americans sell it on the world market for much less.

“The least we can do is support our local businesses through our consumption choices.”

In an attempt to dampen the impact free trade will have on rural Costa Rica, poor farmers with fragile lifestyles are having to undergo huge structural changes at high cost. Ideally, U.S. corporations should be taking the initiative to monitor the impact their decisions have at the grassroots level. Realistically, such ethical behaviour can’t be taken for granted. With the treaty coming into effect in October this year, farmers like Mr Gonzalez will be bracing themselves for strangling financial shortfalls.

The least we can do is support our local businesses through our consumption choices. The money we save in choosing cheaper, heavily subsidised foreign goods cannot possibly reflect the reciprocating pressure this choice puts on the lifestyles of those commanding these struggling businesses.

Robert Knight is in his second year of a combined degree in Law and International Studies, majoring in Political Economy and Government and International Relations.

Suzannah Morris explores the role of the judiciary in protecting human rights and restraining executive power in the fight against terrorism.

The Universal Declaration of Human Rights (UDHR) is the world’s most translated document. And rightly so. The Declaration represents the first global expression of rights to which all human beings, regardless of their circumstances, are entitled. With the Declaration celebrating its 60th anniversary in 2008, it is easy to profess the importance of human rights. Indeed, all statesmen and women, even those whose countries have questionable human rights records, boldly assert their support for them.

It is difficult, however, to ensure the promotion and protection of rights during circumstances of armed conflict, natural disaster or terrorism. Nonetheless, it is during these emergencies that human rights need the most protection.

“The judiciary … must monitor two parties: those perpetrating the crimes and an executive seeking to act beyond its mandate.”

As Lord Hoffmann noted, “the real threat to the life of the nation is not the individual terrorist attacks, but rather the arbitrary exercises of executive power”. However tempting, popular or convenient it is for a government to curtail individual liberties, it should be resisted in all but the most urgent cases. This is where the judiciary has an important role to play. Upholding the rule of law and fundamental human rights in what seems to be a situation of chaos is essential to ensuring that terrorists do not achieve their ultimate objectives.

The world changed after September 11, 2001. Not just because a tragic event occurred, but because the fear of terrorist attacks became personalised and popularised. Subsequent events in Madrid, London and Indonesia exacerbated this fear. The detention of terrorists following the events of September 11 has generated significant political, judicial and media debate. Anti-terror laws are simultaneously aimed at the difficult tasks of trying to protect the community from an attack, and punishing the perpetrators. As Paul Wilkinson from the London Times commented, “fighting terrorism is like being a goalkeeper. You can make a hundred brilliant saves but the only shot that people remember is the one that gets past you”.

What has the response been?

Executive action taken to protect citizens from an enemy that is difficult to identify, and difficult to defend against, has been under intense scrutiny. The internment of foreign nationals, extraordinary surveillance powers and indefinite detention, are all measures that have been used by governments to defend the community. They form part of an alarming pattern. Historians have long observed that there is reason to expect, in general, that in times of crisis, executive leaders will overestimate the population’s security needs and discount the value of liberty.

“However tempting it is to curtail individual liberties, it should be resisted in all but the most urgent cases.”

Terrorist attacks, by their very nature, are targeted at civilian infrastructure, governments and the rule of law. The proper functioning of courts is essential in order to uphold this rule. It is an understandably delicate balance. Give too much lenience to government and watch fundamental human rights erode, albeit gradually. Come down too harshly and you restrict the ability of the Executive to effectively target current threats and their root causes. While the Executive is prone to overestimating the population’s security needs, or gambling its political capital on the support of the public in introducing unpopular reform, the community places its faith in the courts to maintain reason and judgment.

What is at stake?

Liberty is one of the fundamental tenets of the human rights regime. The UDHR, as well as the International Covenant on Civil Political Rights, prohibit arbitrary detention. Indefinite detention, however, is often the instinctive reaction of many states facing terrorist threats. This short-term solution does little to prevent future threats of terrorist attacks, as terror networks are far larger than one person. Furthermore, it ignores the role that the suppression of human rights can play in fuelling further attacks against the state.

The protection and promotion of human rights and the restraint of arbitrary exercises of executive power have an important role to play in that long-term solution. This illustrates the fallacy of the justification for recasting individual rights to benefit the community. As Benjamin Franklin observed, “those who give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety”.

Both in the United States and the United Kingdom, appeal courts have been faced with cases involving Executives attempting to restrict liberty by implementing forms of indefinite detention. In the United States, the Supreme Court was faced with a constitutional case concerning the availability of habeas corpus. In the House of Lords, UK legislation was measured against the European Convention on Human Rights.

Recent United States jurisprudence centres on cases arising from Guantanamo Bay. The U.S. controlled Cuban enclave has been a lightning rod for the debate concerning individual rights versus community protection. The decision of the Supreme Court in the consolidated cases of Boumediene and Al Odah in June 2008 represents the latest judicial ruling in the area.

Six-and-a-half years after the United States began transporting alleged Taliban and Al-Qaeda members from countries such as Afghanistan, Bosnia-Herzegovina and Egypt to Guantanamo, the Supreme Court held in a 5-4 opinion that aliens designated as enemy combatants and detained at the U.S. Naval Station in Guantanamo Bay do have the constitutional privilege of habeas corpus.

“The right of habeas corpus is one of the most basic principles of liberty in the Anglo-American tradition.”

The decision of Boumediene follows six years of contentious litigation. In Rasul v Bush (2004), the Supreme Court originally held that the detainees had a right to habeas corpus. However, the Bush Administration later ousted the jurisdiction of District Courts to hear habeas corpus claims.

The Supreme Court may have been dealing with certain American constitutional entitlements to be afforded to detainees, but the right of habeas corpus is one of the most basic principles of liberty in the Anglo-American tradition. Major General Jay Hood, former Commander at Guantanamo Bay, admitted the possibility of innocent individuals being detained. Innocents remained at the base, he contended, because “nobody wants to be the one to sign the release papers … there is no muscle in the system”.

The immediate impact of the decision is that detainees at Guantanamo may petition United States courts for habeas reviews of the circumstances of their detention. The main criticism of this decision has been that it places ‘military decisions’ in the hands of a judiciary that is unfamiliar with military issues. Had the Guantanamo Bay commissions established by the 2006 Military Commission Act allowed the proper exercise of habeas corpus rights, this might be a valid argument. As these Commissions fall short of the requisite standards of due process, however, they cannot, and should not, be seen as providing the right of habeas corpus.

The U.S. presidential candidates are acutely aware of the damage that Guantanamo Bay has done to the United States at home and abroad. Curiously, they have both come out on different sides of this issue. Barack Obama recently argued that habeas corpus is the “essence of who we are” and we should do “all we can to restore it”. John McCain, himself a former prisoner of war, argued that the case belongs on the list as “one of the worst decisions in the history of this country”. His concern is that “courts will be flooded with so-called ‘habeas corpus suits’ against the government, whether it be about the diet or about the reading material”. This is a surprising position, given McCain’s own, personal story.

“Upholding the rule of law is essential to ensuring that terrorists do not achieve their ultimate objectives.”

Across the Atlantic, the House of Lords was considering similar anti-terror legislation. Under the Anti-Terrorism, Crime and Security Act 2001 (ATCSA), foreign nationals who were “suspected international terrorists”, could be subject to periods of indefinite detention, yet could not be deported. By granting powers of indefinite detention to the Home Secretary, the UK Government chose to derogate from its obligations under Article 5 of the European Convention on Human Rights. Nine detainees of the Belmarsh prison (none of whom had been the subject of a criminal charge) challenged the lawfulness of their detention under the ATCSA. For only the second time in its history, the House of Lords constituted a bench of nine Law Lords to hear the case.

In December 2004, the House of Lords judged this system to be incompatible with the European Convention. In considering the case, the Law Lords considered the propriety of affording the executive a “wide margin of appreciation”. While maintaining a near monopoly on the ability to determine the extent of the threat, it was apparent that the court still had a role to play in scrutinising the proportionality of the government’s response. The decision may not have attracted as much attention as Guantanamo Bay jurisprudence, but it reaffirms the importance of maintaining a check on execution action, even during times of terror. These checks and balances are of particular importance when human rights are the casualty of executive action. As Lord Scott noted, indefinite detention on undisclosed grounds was the “stuff of nightmares”, reminiscent of a Stalinist regime.

The Supreme Court and the House of Lords both acted to ensure that executive action was consistent with fundamental human rights and the rule of law. The judiciary can be seen as a peacekeeper in the ‘war on terror’. It must monitor two parties: those perpetrating the crimes and an executive seeking to act beyond its mandate.

For some, the immediate need for protection satisfies the argument that rights should be suppressed. However, abrogating the responsibilities and principles that underpin our understanding of democracy and human rights causes more lasting damage. It is not the damage caused directly by terrorist attacks that should be feared. It is the effect that these attacks have on our commitment to the universality of human rights that is more concerning.

Suzannah Morris is in her fifth year of a combined degree in Law and Economics, majoring in Economics. Illustrations by Peter Yeldham.