Posts by Jesse Gutman
BY Jesse Gutman
FILED UNDER
Constitutional Law
Human Rights
Public International Law
Winds of Change or Hot Air? Decolonization and the Salt Water Test
Nineteen Sixty is considered a watershed moment for the anti-colonization movement: in this single year, seventeen African States were created or ‘decolonized’, obtaining independence from European colonial regimes. In a public address at the time, British Prime Minister Harold MacMillan noted that ‘winds of change’ were sweeping the African continent. The norms of international law followed suit: Resolutions 1514 (XV) and 1541 (XV) of the United Nations General Assembly were adopted in December 1960. Together, they form a fundamental part of the customary law underpinning the right to self-determination. At this anniversary of fifty years, it is useful to critically reflect upon this episode in the history of international law.
The Declaration on the Granting of Independence to Colonial Countries and Peoples, passed on December 14, 1960, recognized that “the peoples of the world ardently desire the end of colonialism in all its manifestations” and consequently affirmed that, “All peoples have the right to self-determination.” The United Nations resolved to assist Trust and Non-Self-Governing Territories (UN Charter, art. 73, i.e. subjugated colonial States) in their movements for independence by supporting the immediate transfer of all powers to the peoples of those territories. Indeed, the United Nations categorically condemned colonization. But this still begged the question – what exactly was colonialism?
One day after Resolution 1514, Resolution 1541 (XV) was passed – a more substantive document specifically…
Justice Prevails?: Notes on a visit to the ICTY
On Thursday, October 20th, I found myself in The Hague, the so-called ‘legal capital of the world’, evaluating my sense of international citizenship. What better way to spend one’s vacation then to visit the International Criminal Tribunal for Ex-Yugoslavia (ITCY)? As a self-fashioned ‘global citizen’, I decided to spend a few hours observing the trial of Zdravko Tolimir (IT-05-88/2), a commander within the Bosnian Serb Army. Tolimir is currently indicted for genocide, conspiracy to commit genocide, exterminations, murder, persecutions, forcible transfer, and deportation in the time period of July to November 1995.
Visiting the ICTY
The Hague is a rainy place with old, colonial buildings and extensive bike paths. En route to the ICTY I passed by the International Court of Justice and a handful of other international legal bodies. After locking up my bike, I prepared for the building security. The guard was friendly and informed me that he had a masters degree in international law from Romania – but that everyone at the UN had to start at the bottom.
After a second checkpoint, we were allowed access to the courts. The observation area was empty, save two guards. Every chair had accompanying headphones which worked with simultaneous translator devices, allowing access to the proceedings in English, French, Bosnian/Croatian/Serbian (BCS), and Albanian; but speakers in the room played the audio aloud in English. The observation…
The Romani People and the Free Movement Directive
On July 28, 2010, Nicolas Sarkozy announced the deportation of Romani people of Romanian and Bulgarian citizenship. More than 8, 300 Roma have been deported from France so far in 2010, up from 7, 875 in 2009. Other European states have also instituted similar policies regarding the Roma. Italy has been publicly attacking the Roma since 2007, when President Silvio Berlusconi demanded the fingerprinting and deportation of Roma communities. Since the summer, Denmark has sent back 23 Roma and Sweden expelled 50. Last year, Germany sent more than 100 Roma back to Romania.
These deportations occur in the face of progressive protections of movement and residence for citizens of EU member states. In 1992, the Maastricht Treaty established a concept of citizenship which challenged traditional borders by conferring the right of member states citizens to move and reside freely within the EU. The Free Movement Directive (2004/38/EC) of 2004 allowed for further integration of European citizens.
How does the deportation of the Roma figure within the Free Movement Directive (FMD)? The statute’s preamble explains that, “the free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers [...]”. Residence is to be exercised, “under objective conditions of freedom and dignity, [and] also granted to their family members, irrespective of nationality”.
The FMD grants a Right of entry (art.…
