Legal Perspective: Does repealing ACA violate International law?

UN Headquarters in Geneva, Switzerland.
2017/UN photo

Through the journalism of Dana Milbank, in a recent Washington Post column, the world became aware of a secret memo sent from the UN to the US which declared the provisions of the Affordable Care Act to be protected under international law and that repeal would violate US commitments under international agreements.

The argument is based on a 2 February 2017, five-page, confidential memo sent from the Office of the UN High Commissioner on Human Right in Geneva to the US Department of State in Washington, DC. The memo expresses “serious concerns” about the prospective loss of health insurance coverage for nearly 30 million Americans. The memo goes on to urge the US Government to take “all necessary interim measures [. . .] to prevent the alleged violations”. As if the Commission’s memo wasn’t clear enough, there is a bold threat that if the “allegations” of loss of health coverage are proved accurate, then the person(s) responsible for failing to prevent said loss are guaranteed to be held accountable.

The memo was written by Dr Dainius Puras, Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, cites three specific areas of treaty law as grounds for why repealing the ACA would constitute a violation of public international law.

First is that Article 25 of the Universal Declaration of Human Rights “establishes everyone’s right to a standard of living adequate for the health and well-being, including food, medical care and necessary social services.”

Next, Dr Puras cites Article 5(e) of the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, calls on states to “guarantee the right of everyone,” including “the rights to public health, medical care, social security and social services” without regard to race or color.

Lastly, Article 12 of the International Covenant on Economic, Social and Cultural Rights, under which states have “the core obligation to ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups.” The agreement was signed but not ratified by the US, which is still “obliged to refrain from acts that would defeat the covenant’s object or purpose, in conformity with Article 18 of the Vienna Convention on the Law of Treaties.”

When I worked in the diplomatic world, I was taught that the epithet “serious concerns” is kind of like saying “we are so f—ng angry right now that we are ready to fly in a start shooting someone!!” Couple this language with the bold threat of “guarantee the accountability of any person responsible” for the loss of health coverage and now you have a complete cease and desist demand with scathing undertones.

Making demands and threats is not good diplomacy. The UN, through the said declaration, convention, and covenant, has reiterated that the aspirational standard of living includes not only includes food and shelter, but access to medical care and social security and other social services. This is agreeable, but it is a long stretch to say health care is a universal human right.

UN Council on Human Rights Chamber.
2017/UN photo.

What are human rights? According to the UN Human Rights Office of the High Commissioner, “Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination.”

The principle of universal rights was first emphasized in the 1948 Universal Declaration on Human Rights, which lists free speech, freedom from fear and want, and the freedom to rebel against tyranny and oppression if freedoms are not protected by rule of law as values recognized the by the international community. Other core values listed are the dignity and worth of the individual human life, equality between men and women, and the promotion of better standards of life.

Within the Declaration are listed the articles, which resemble the US’ Bill of Rights and a few later amendments. They include right to due process under law, right of a speedy and fair trial, prohibition on slavery, prohibition against torture and inhuman punishment, right of privacy, right to have a nationality, right to flee persecution and seek asylum, right to movement, right to marry and have a family life, right to own property, freedom of thought, conscience and religion, freedom of expression and opinion, right to assemble and associate, right to work and seek employment, et cetera.  

In addressing Dr Puras’ Article 25 Human Rights claim, he stopped shy of reading the entire clause, which indicates that “right of a standard of living adequate for health and well-being” can mean many clean air, pure water, transparency about what is in food and drugs, adequate law enforcement, etc. However, the clause goes on to read that the right to adequate food, clothing, housing, medical care, social security in the event of circumstances beyond the individual’s control, such as disability, widowhood, old age, or sickness.

It is pretty safe to say that the Declaration on Human Rights may be broadly interpreted to suit a person’s needs, falls short in declaring universal affordable health insurance a human right. The Declaration makes clear an obligation on nations to take care of citizens who have fallen through the cracks – the disabled, sick, old, and widowed. The connecting factor between these groups is that they cannot contribute to the economic output of a nation.

Dr Puras’ memo fails to consider the notion that repealing the ACA might actually make health insurance in American more affordable and more accessible. There would have to be some tweaks to the law, but certainly allowing consumers to buy across state lines and to allow insurers to offer a la carte plans would reduce the cost.

Considering healthcare costs for the US are three times the OECD average currently (OECD health statistics 2016), the idea of affordable healthcare being only tied to insurance premiums is absurd economics.

The average self-employed Colorado family with a special needs child could expect to pay in 2016 around $50,000 in health insurance premiums. According to the US Census ACS survey, the 2015 real median household income in Colorado was just under $64,000. Assuming that family pays 20% in taxes, that leaves about $1,000 (after health insurance) for rent/mortgage, food, water, clothing, transportation, leisure activities, etc.

According to the Economist, Americans in the lowest 20% of income are 15.5% better off, whereas all other income decile are worse off by 0.3-1.1%. It seems tough to put a number to Americans being worse or better under the ACA, as there are many moving parts, such as Medicaid Expansion, which would have most certainly helped the lowest 20%.

The Economist also reported that in the first quarter of 2017, American household income reached its highest level since the 2007-08 Financial Crisis began. Considering the ACA was signed into law by Pres Obama on 23 March 2010, it is hard to say how much improvement, if any, the law made since American’s earnings ratcheted down and health care and education costs began raising prices astronomically.

Recently I visited Connect for Health Colorado, Colorado’s health insurance marketplace, after plugging in my age, and a few key health stats (note, under the ACA you cannot be turned down for a pre-existing condition, but your premium can increase) and the lowest monthly quote I received was $750! Multiplied by 12 to see a full year’s cost and the number is $9,000! In 2016-17, the penalty for not having health insurance is 2.5 percent of income or $695, whichever is greater. Economically speaking, it is cheaper to pay the penalty, and then quickly enroll in an exchange plan if my health takes a dramatic turn for the worse.

Dr Puras then uses the International Convention on the Elimination of All Forms of Racial Discrimination as grounds that repealing the ACA would unjustly discriminate against some people. Having the ACA in place unjustly discriminates against the middle class and the way the ACA targets self-employed persons is particularly disturbing. Assuming Medicaid Expansion stays in place, it is a tough argument to say that repealing the ACA is discriminatory.

The last part of Dr Puras’ legal authority is the International Covenant on Economic, Social and Cultural Rights, which the US signed, but has not ratified, thus its bindingness is persuasive only. The key argument is over “access to health facilities.” In the US, if you are injured or in need of medical attention, you will receive it at the nearest hospital, with top facilities, highly skilled doctors and nurses, and never will you be discriminated against on the basis of race, economic status, lack of health insurance, religion, sex, gender, political persuasion, et al. The reason is the adherence to the Hippocratic Oath, which is a core principle in American medicine and treatment. If you are unable to pay, the local government will pick up the tab, with reimbursements coming from the state level. This is not the preferred way of doing business and the medical provider will want to work out a payment plan, but at no point in time was access to health facilities denied before or after the ACA.

Under UN General Assembly Resolution A/67/L.36 (6 Dec 2012), affordable universal healthcare became part of the UN's Post-Millennium Development Goals. The resolution is a way to hold member states accountable if they fail to comply. The Commission on Human Rights is charged with overseeing compliance, since spending on healthcare is treated as a fundamental human right. Poorer states may rely on foreign states for financial assistance.

A major problem with basing interpretation and authority on UN General Assembly resolutions is that the United Nations doesn’t consider UNGA resolutions to be legally binding.

Further, United States courts traditionally have not considered UNGA resolutions to be authoritative sources of international law, unless the resolution merely restates legal principles that could be verified by reference to recognised sources such as customary international law, treaties, and judicial decisions.

Even as some US courts are more receptive now days to UNGA resolutions, there is a danger here, as many UNGA resolutions contradict treaties, other resolutions, member state’s constitutions, and member state’s domestic law.

Quick example: UNGA Resolutions 339 A and B - Delegations voted in favour of both resolutions which called for maintaining a UN Command on the North/South Korean border and dissolving the UN Command and remove all foreign troops from South Korea.

Only 58 out of 200+/- nations have a form of affordable universal health care hardly constitutes sufficient state practice to establish customary international law (other element required is opinion juris, which is the belief that practice is legally obliged).

Even if affordable health care is deemed a right under treaty or convention, enforcement will be a problem.

It seems that if the UN is so concerned about the domestic affairs of nations, they should fund and provide the services they are desirous of compelling.

At a time when nations are ever more sceptical of large International organisations, perhaps flaming the dissatisfaction is inimical diplomacy.

Whose prerogative is it anyway? Britain’s referendum to withdraw from EU draws constitutional legal challenges*

1. Introduction

On June 23, 2016 the British people voted to exit the European Union, or simply “Brexit”. The
United Kingdom’s EU Referendum, in which a record 72.2% of the electorate voted, resulted in 48.1% choosing to “remain” and a surprising 51.9% opting to “leave”.

Immediately after the plebiscite’s unexpected outcome, a snowball reaction began that caused turmoil in Britain’s political leadership , a weakened pound-sterling, havoc within financial markets , and challenges to the royal prerogative power . Following the vote, solicitors at Michcon de Reya, acting on behalf of an anonymous group of clients, sought assurances the government would not act without parliament.

2. R (Miller) v Secretary of State for Exiting the EU

In October 2016, the High Court of Justice’s three most senior judges – Lord Thomas of Cwmgiedd, Sir Terence Etherton, and Lord Justice Sale – heard oral arguments in London addressing whether the Crown, acting through the government, is entitled to use royal prerogative powers to trigger Article 50 of the Treaty on European Union (TEU)?  The issue central to this debate is whether the Prime Minister is entitled to use powers of the royal prerogative to commence the two year exiting process, without a vote in Parliament.

This case is the biggest British Constitutional question of the century and pits the royal prerogative powers of the executive branch against the sovereign powers of parliament. The government lost in the high court and is currently appealing to the UK Supreme Court.  Prime Minister Theresa May, through a spokesperson, said, “[T]he government’s planned timetable for triggering Article 50 is unchanged after the court ruling.”

a. Royal Prerogative

The royal prerogative powers were historically exercised by Britain’s monarch acting on his or her own initiative. Today, by constitutional convention, the monarch exercises the prerogative on the advice of the prime minister and the cabinet. It is under the royal prerogative that money is minted, assets allocated for war, pardons granted, and foreign affairs conducted.

b. Parliamentary Sovereignty

In the British Constitutional system, the doctrine of ‘parliamentary sovereignty’  implies the Parliament of Westminster is the supreme legal authority for the entire United Kingdom. Contrast this principle with the United States’ system of government, where a codified constitution is the highest law and the Supreme Court has the power to judicially review acts of Congress and the executive. In the UK, courts cannot generally overrule legislation and no parliament can pass laws binding a future parliament.

2. EU Referendum Act

The legal authority for the EU Referendum came from legislation passed by Parliament in December 2015.  The act said nothing whatsoever about the effect of the vote’s outcome, and the referendum was persuasive and not binding on the government. In practice, the UK government will, most likely, have to respect the vote’s results.


3. Article 50 TEU: Withdrawing from EU

Under Article 50 of the Treaty of European Union (TEU), the framework is laid for withdrawing from the EU. A two-part process is required for invoking Article 50. First, a Member State must “decide” to withdraw, and second, that member state “shall notify” the European Council of their desire to withdraw.

A “decision,” for the purposes of Article 50(1) TEU, must be in accordance with the given member state’s own constitutional requirements. This means a “decision” is made by either the exercise of the prerogative powers (i.e. Prime Minister acting on behalf of the Crown) or through a piece of primary legislation (i.e. Parliament acting in its role as sovereign).

4. Looking forward

The British government announced they planned to “notify” the EU Council of the withdrawal decision by the end of March 2017. The Queen’s 2017 Speech to Parliament will be used to introduce the Great Repeal Bill, which will nullify the European Communities Act 1972 from the statute books. The anticipated date for Brexit to be official would be the end of March 2019, which would be in time for the 2020 General Election.

The government’s timetable could be complicated by the Supreme Court upholding the High Court’s decision, Scotland pressing for a second Independence Referendum, or the Prime Minister asking the Queen to dissolve parliament, triggering a shotgun election.

Even if the Supreme Court upholds the claimant’s position that parliament, as supreme constitutional law, must vote to “decide” to withdraw, more likely than not, Members of Parliament will uphold the people’s determination to leave the EU.

___________________________________
*ABA Year-in-Review 2016, Section on International Law, Europe Committee (summer 2017)

West African piracy escalates

West Africa becomes the most dangerous waters for seafarers as piracy becomes more violent.

Nigerian Navy captures 6 pirates who hijacked & renamed a Saudi Arabian oil tanker.

Recently, for example, a training manoeuvre off the coast of West Africa turned into a real-life rescue mission. French embassy officials notified Ghanaian and US diplomats of a possible pirate ship loitering off Abidjan, Ivory Coast. The referenced ship was the Dubai-owned MT Maximus, which was leased to a South Korean firm, carrying a cargo of 4,700 tonnes of diesel fuel.

The MT Maximus had been hijacked on February 11th. Navy ships from the US, Ghana, Togo, and Nigeria shadowed the MT Maximus for 800 miles across the Gulf of Guinea until Nigerian Special Forces stormed aboard on February 20th. A firefight broke out and the Nigerian forces killed their first pirate ever during a boarding. Six pirates were captured and 18 seafarers were freed. Several pirates escaped in a skiff, along with two crewmen, who still remain held hostage for ransom.

This anecdote of the MT Maximus illustrates the successes and challenges posed by increased piracy activity in the Gulf of Guinea. The International Maritime Organization (IMO) reports that over 90% of the world’s trade is carried by sea. About 2-3% of all vessels broadcasting AIS globally, transit the Gulf of Guinea region annually, but 20% of all maritime crime occurs in the Gulf of Guinea.

Nigerian Rear Admiral Henry Babalola, recently commented, “International cooperation is the new

mantra for maritime security. We cannot go at it alone.” Admiral Babalola stressed the economic impact of piracy on the world; by pushing up maritime insurance, security, et cetera, all of which is ultimately passed on to the consumers.

While the percentage of International commercial shipping that transits through the Gulf of Guinea region may seem small, the total economic cost incurred by the International community, regional states, and the industry, through combatting or preventing piracy for the year 2015, was estimated at $719.6 million; the shipping industry has borne 61% of this cost.

Nigerian Rear Admiral Henry Babalola

In 2015, the European Union (EU) spent nearly $3.5 million (€3 million) on counter-piracy related activities in the Gulf of Guinea region. These projects included the Gulf of Guinea maritime transport support and the Critical Maritime Route in the Gulf of Guinea Project (CRIMGO). The EU is responsible for funding over 60% of all International counter-piracy efforts in the West African region.

For the first time in half a decade the United Nations Security Council, on 26 April 2016, sitting in New York City, dedicated a session to discussing Gulf of Guinea piracy and associated crimes.

H.E. Paul Menkveld, Deputy Permanent Representative of the Netherlands to the UN, said, “Illegal maritime activities in the Gulf of Guinea are not only a problem of West-African states. They are our problem as well. Because these activities harm regional trade and economic development. Because they hinder the flow of commerce between Europe and West-Africa and thus prosperity at a larger scale.”

In the first quarter of 2016, the International Chamber of Commerce (ICC) International Maritime Bureau’s (IMB) Piracy Reporting Centre (PRC) reported 6 successful attacks and 6 unsuccessful attacks by pirates off the coast of Nigeria, Côte d'Ivoire, and the Democratic Republic of the Congo. These latest figures highlight growing violence as 44 seafarers have been kidnapped, as of 27 April 2016. This is compared with 15 seafarers who were kidnapped in all of 2015.

On 3 May 2016, the US-based non-governmental organization, Oceans Beyond Piracy (OBP), presented their sixth annual State of Maritime Piracy 2015 report in London at the United Kingdom Chamber of Shipping. Lead author, Matthew Walje, explained that the business model for West African pirates shifted in 2015 from theft, robbery, and hijack-for-theft to kidnap-for-ransom.

OBP’s report showed that the cooperative International efforts by the EU, the US, China, Russia, India, and Japan naval task forces of over two dozen vessels has reduced piracy off the coast of Somalia from 151 attacks in 2011 to 17 pirate attacks in 2015. Mr Walje urged caution, saying when the EU Naval Force concludes its task force in 2018, there needs to be a shift to capacity building, economic development within Somalia, and local maritime law enforcement, otherwise the conditions remain ripe for potential future hijackings, kidnappings, and ransom demands.

Southeast Asian piracy has seen spikes over the last 15 years, but regional states have proven capable of supressing piracy. In 2015, there were 199 reported instances of piracy in Southeast Asia, with 67% of those occurring near Malacca or the Straits of Singapore. A major decline occurred in the fourth quarter of 2015, as law enforcement began arresting and prosecuting pirate kingpins.

The International community has arrested and prosecuted hundreds of pirates from the Gulf of Aden and the Western Indian Ocean region, but the process is expensive and complex, not to mention the kingpins onshore continue to operate with near-complete impunity from the law. This scenario is especially true in the Niger Delta Region in West Africa, Mr Walje commented.

Unrest in the Niger Delta Region culminated when militants caused massive disruptions to the continent’s largest producer of crude oil. In 2009, an amnesty deal was reached with militants, which included huge cash payments to fighters. According to Daniel Alabrah, the programme’s spokesman, $1.2 billion (€1 billion) has been paid to some 30,000 militants.

States in the Gulf of Guinea are struggling to keep their seas under control. While lower oil prices have cut the costs of naval patrols and embankment teams in half, it has also meant a shift in the pirate business model from hijack-for-theft to kidnap-for-ransom.

In addition to lower oil prices and increased maritime law enforcement patrols, the 28 March 2015 Nigerian presidential elections were a catalyst for increased uncertainty. Incumbent Goodluck Jonathan, whose support came from the Niger Delta states, lost to General Muhammadu Buhari. Elections have been a powder keg, as the predominantly Muslim north, which is poorer than the southern, mainly Christian, Niger Delta, tends to align with opposing political parties. Boko Haram, a jihadist group, operates in the north, organized pirate gangs base their operations in the Niger Delta region. Nigeria is not only Africa’s most populace nation, but in 2014 it overtook South Africa as the continent’s largest economy.

In a recent interview with American University Professor Stefano Costanzi, an expert in the computational study of complex problems in biomedicine and social sciences, he observed three main trends in Gulf of Guinea piracy thus far in 2016, as compared to 2015.

First, there have been more attacks on vessels, especially in waters off the Niger Delta Region. Local militants are allegedly behind most of these attacks. The amnesty program, which provides income for former militants, is winding down, and is supposed to be completely shutdown by 2017. It is likely more militants in the Niger Delta Region will turn to piracy to replace lost income.

Second, piracy in the Gulf of Guinea shifted from oil theft to a kidnap for ransom model. Oil prices are low and the Nigerian government shutdown several illegal refineries, making oil theft less profitable than kidnapping. As of 10 May 2016, all major attacks on vessels have involved kidnapping.

Third, there have been more unsuccessful attacks. The fact that more attacks are foiled indicates that maritime security in the region is getting better. The Nigerian navy responded promptly to several incidents. Perhaps more importantly, many attempted attacks were foiled by armed guards riding onboard.

UK-based Dryad Maritime’s Head of Operations, Michael Edey, in an interview with World Maritime News, said, “Kidnap is a relatively easy crime with big financial returns. Unlike the hijack of ships for ransom or for their cargoes of valuable fuel, the groups involved do not need to worry about how to offload and sell the cargo, as in the Gulf of Guinea, or maintain control of the ship in a safe area while the ransom negotiations took place, as with Somali pirate hijacks. In short, kidnap is significantly less risky.”

OBP’s research indicates that as many as 70 percent of all kidnapping incidents in the Gulf of Guinea

go unreported.

Margaret Orakwusi, the former president of the Nigerian Trawler Owners Association, said, “It’s just like the sea pirate attacks; most of the attacks are not being reported. Probably out of frustration by the owners of the vessels. You know when you continuously report and nothing is happening and the victims are not helped.”

During 2015, ransoms in the Gulf of Guinea, of up to $400,000 were recorded being paid by ship owners to recover vessel and crew from pirates. While the total amount paid to pirates remained nearly unchanged from $1.68 million in 2014 to $1.6 million in 2015, the level of violence significantly increased, including mock executions. At least 1,225 seafarers were subjected to attacks in 2015 and 23 were killed. By contrast, only one seafarer was murdered in the Gulf of Guinea during 2014.

The rise in kidnappings has been especially alarming for European shippers. Pirates believe they can demand higher ransoms for crew from the West. Currently, seafarers from Poland, the Ukraine, and Russia are being held by West African pirates.

The situation in the Gulf of Guinea will remain uncertain, as the political developments in Nigeria have resulted in former amnesty payees taking to the seas to back-fill lost income. Low global oil prices caused a shift in the criminal model from theft and robbery to kidnap and ransom. Nigeria and regional states have increased maritime security patrols and placed armed guards aboard commercial ships transiting the gulf. These tactics have quelled the situation for now, but the International community, in particular the EU, will need to help develop sustainable alternatives to piracy, increase capacity building, and put political pressure on regional states to prosecute the kingpins, who are ultimately responsible for the increased levels of piracy off the west coast of Africa.

Tyranny of the majority: Is secession a justified response?

From Colorado counties proposing secession to Crimea voting to break-away from Ukraine; and from Venice adopting unofficial independence status to Scotland wanting to dissolve the 307 year-old marriage with England – Who’d have thought we are living in an age of social contract renewal?

Over the past four months – majorities in 5 out of 11 counties voted to become the 51st US State; an

unbelievable 96% of Crimeans voted to join Russia; 89% of Venetians voted to create independent city-state within Italy; and in September Scottish voters will take to the polls to decide whether to become a free and independent country.

Opponents of these secessionist movements have quickly taken to the bully pulpit to point out the unconstitutionality of these votes. What if it’s illegal to vote for smaller regions, such as a county, to secede from lager entities, such as states or nations? Does a law make separatists feelings “go-away”?

Secessionist ideas do not begin at the ballot box or in a parliamentary chamber. The ideas of dissolving the bands that tie one region to another begin with disaccord and minority dissatisfaction – tyranny of the majority. Where one political party dominates and punishes the opposition or one geo-cultural group forces its views onto another.

Under the US Constitution, no mention is made of an acceptable dissolution of the union. The Civil War and the Supreme Court’s decision in Texas v. White (1869) arguably established the Constitution ordained a perpetual and indissoluble union.

In 1776, when the founders declared independence from the United Kingdom, that act was in violation of the British Constitution’s supremacy of parliament. If there had been any doubt of Parliament’s authority, The Declaratory Act of 1766, which asserted the right of Parliament to legislate for the colonies "in all cases whatsoever," would have settled the question.

To consider our founders revolutionaries seems abhorrent. The situation was an impasse, Parliament told the colonists to ‘go pound sand’ and the colonists responded by crafting a legal justification based on social contract theory, tyranny of the majority, and natural law.

Colorado counties which proposed secession; orange is where measure passed. 

As for the Colorado counties wanting to follow the West Virginia Model, that dream ended when the 69^th Colorado General Assembly adjourned on May 7^th.

Under Article 4 §3 of the US Constitution, no new state can be created from within an existing state without the consent of both the state’s general assembly and Congress.

Without the Colorado legislature taking action, our state will remain intact. Remaining united is not to say the dissatisfaction with the Democrats who control the governor’s office and legislature has gone away.

Similar to Colorado, the Crimea and Venice referendums were a protest to majority tyrannizing the minority. Unlike Colorado, Crimea’s vote was unconstitutional. Venice’s ballot was unofficial.

The Ukrainian Constitution specifically states in Article 73: “Alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum.”

Many have argued the Crimea referendum was illegal according to Public International Law.

Firstly, under the Montevideo Convention on the Rights and Duties of States (1933), four requires must be satisfied to be considered an independent nation: permanent population, a defined territory, a government, and the capacity to enter into diplomatic relations.

Secondly, a country must be recognised by another country.

Crimea, a peninsula region in the Black Sea. 

The Crimean referendum asked voters whether they wanted to join Russia as a federal subject or restore the 1992 Crimean Constitution which granted greater authority to the regional parliament. With 83% voter turn-out, 96% voted in-favor of joining Russia. This act was certainly illegal under the Ukrainian Constitution, but as for International law, the jury is still out.

The Venice ballot asked voter whether they wanted to secede from Italy and become and independent city-state. With 65% of the region voting, a whopping 89% or 2.1 million people voted in-favor of breaking away from Rome! The Italian Government had no fear of Venice actually breaking away, as the referendum had been unofficial.

Much like rural Colorado having difficult with Denver listening; Crimea has a Kiev problem; Venice a Rome problem; and Scotland, an English problem.

On September 18^th, Scots will take to the polls to decide their fate. Legally, Scotland has the same problem the American Colonists had with the British Constitution, namely the supremacy of parliament.

The UK Parliament in London has the ability to enact or resend any legislation, including the grant of independence. The Edinburgh Agreement, merely a gentleman’s handshake, is where the UK Parliament has pre-agreed to acquiesce to the outcome of the referendum.

While the votes remain to be cast, one thing is certain, laws banning secession don’t make secessionist ideas go away. Revolution and civil war should be avoided. Elections, whether official or unofficial; lawful or unlawful should be a wake-up call to majority-leaders who are unwilling to respect the ideologies, customs, or traditions of minority constituencies.

Legal & political aspects of military intervention in Syria

Should the US attack Syria? Has Assad used chemical weapons against his own people? Would US intervention violate public International law?

Regardless of the answers to these questions, an upcoming vote on Capitol Hill illustrates how foreign affairs are as much about domestic politics, as it is about International relations.

Syrian President Bashar  al-Assad and his wife, Amsa.

President Obama has played a brilliant game of chess against the Republicans. How you might ask?

Prudently, the President is wise in asking for a Congressional vote. It is a tough decision and vesting everyone in the decision process is smart.

Politically, a Congressional vote on Syria puts the Republicans on record prior to the 2014 mid-term

elections, which makes such a vote all the more sensitive and strategic.

The Constitution does not require the President to ask Congress’ permission to engage the armed forces in hostilities. War making powers are shared jointly between the Executive and Congress.

Is military action against Syria legal under public International law?

Under the UN Charter, states may only use force in two instances: self-defence or when the Security Council has authorized force to maintain or restore international peace and security.

Here, Syria has not attacked American citizens, assets, or allies; nor has the Security Council authorized the use of force. The Syrian government is merely engaging in an internal conflict to suppress rebels.

Additionally, Customary International law would allow Syrian government officials, such as Bashar al-Assad to be prosecuted for crimes against humanity and the use of chemical weapons, even though Syria has not become a party to the Genocide, Torture, or Ban on Chemical Weapons conventions.

Regardless of International conventions and customs, US law recognizes the ratified treaties at taking the same status as federal law. This means, the UN Charter, as a treaty, is tantamount to federal law. Congress is free to override federal law by adopting resolutions. So under an American law analysis, Congress can do whatever the hell it wants, so long as that action doesn’t violate the Constitution.

The notion that Congress must pre-approve military action is erroneous. Article I, Section 8 of the Constitution grants Congress a non-specific power to ‘declare war.’ However, of the 130 plus times military action has been taken abroad, Congress has only declared war 5 times.

US President Barak Obama with Speaker John Boehner (left).

Under the Presidential War Powers Act, President Obama, as commander-in-chief, may introduce the military to hostilities without Congressional notice for a period of 60 days. The Act goes on to mention that hostilities must comply with: (i) declaration of war, (ii) statutory authority, or (iii) national emergency. Additional time for hostilities is granted upon Congressional approval.

Here, President Obama would be allowed to introduce the military into foreign involvement without Congressional approval.

Why ask Congress for permission if President Obama doesn't legally need it?

Remember the mid-term elections are fast approaching. A Congressional vote on Syria puts the Republicans on record prior to the 2014 elections, which makes this vote highly political. This is why Speaker John Boehner, a supporter of Syrian intervention, isn't making this a partisan vote – he needs to ensure Republicans are re-elected.

Politically, the issue of Syria is dividing the Republican Party into the Paul Republicans (non-interventionists) and the McCain Republicans (the war-hawks).

Here in Western Colorado, Congressman Scott Tipton announced he would be voting ‘no’ during a town hall meeting recently in Durango.

Both of Colorado’s US Senators, Mark Udall and Michael Bennet, are vacillating over how to vote regarding Syrian intervention to punish the use of chemical weapons.

Meanwhile, on the International stage (remember, I said foreign affairs was only partly about domestic politics), Russian President Vladimir Putin has asked the US to present evidence before the UN Security Council that the Assad government was responsible for the chemical weapons attack.

If the US proceeds without a UN Security Council resolution, then legally this action would be pre-emptive self-defence or a unilateral enforcement an International custom (the ban on chemical weapons). Both concepts would dramatically expand the Bush precedent.

Targeted Syrian assets.

Recently, in Stockholm, President Obama said, “My credibility isn't on the line, the whole international

community's credibility is on the line, Congress' credibility is on the line.”

Actually, Mr President, your credibility is on the line, as you’re the one proclaimed Syria used chemical weapons and that the US should take punitive action.

While the White House has gotten the entire International community in a frenzy, one thing is for certain, if the US strikes Syria, no longer will President Obama be able to blame the results on the George Bush Administration. 

Lugar: Libyan "Conflict" lacks exit strategy, clear purpose, & US Senate approval to engage in war

US Sen Lugar (R-IN) has criticized Obama for deploying U.S. forces without a clear exit strategy, repeatedly called the conflict a “war” (a term the White House rejects), and said the president violated the Constitution in intervening without a formal authorization from Congress.[1]

Barack Obama left the Senate after two years there for a presidential run, making few close friends in the chamber because of his short tenure. But before he left, Obama cultivated an unlikely bond with a Republican US Senator 29 years his senior: Richard G. Lugar. Lugar was the former Chair of the Senate Foreign Relations Committee and negotiated the START Treaty. Many Democrats have floated Lugar's name as a possible Sec of State replace to Sec Clinton - not now, not after his remarks about Libya. Talk has shifted to Sen John Kerry.[2]

“The president still has not clearly stated what our goals are or what would constitute success. He has not stated whether the United States would accept a stalemate in the civil war, nor has he put forward a plan for ending Gaddafi’s rule,” Lugar said.[3]

The intervention in Libya is to oust an enemy of the US, create a new market for American energy companies (currently Libya has been dominated by Italian, British, French and Turkish Energy companies, which is anti-competition), use blow-up missiles so the US can purchase new ones (which helps the American Military Industry), and support the US allies in the NATO and the Arab League. Oh yes, and justify the war (my bad, “conflict”) with a UNSC resolution and calling the action one of humanitarianism. The US should be a pro at these things, they practiced in Iraq.

The senator’s criticisms of Obama’s Libya policy are similar to those of other members of both parties. Lugar is obviously one of those old anti-war, pro-rule of law, anti-humanitarian and anti-capitalistic Republicans. He should be ashamed of not seeing the potential economic benefits of Libya and the potential of killing an enemy of the US - Muammar Muhammad al-Gaddafi.[4]
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[1] Landler & Shanker. "Gates and Clinton Unite to Defend Libya Intervention, and Say It May Last Awhile" The New York Times 28 March 2011 p A9
[2] "US public, Congress remain skeptical of Libyan mission" DEUTSCHE WELLE 1 April 2011 accessed 3 April 2011
[3] Bacon, P. "On Libya, former ally takes on Obama" The Washington Post 2 April 2011 accessed 3 April 2011 [4] Shanker & Cooper. "Doctrine for Libya: Not Carved in Stone" The New York Times 30 March 2011 accessed 3 April 2011