November 1999

International law creeping over sovereignty




Three different news stories caught my eye in the last week. At first glance they had nothing in common, except to remind me of one of the most hopeful, albeit very gradual, developments in the last half-century.

The first story was that carried by the Straits Times on 16 Nov 1999, see box beside. A Brazilian woman was incensed that a jewelry store had refused to serve her simply because she was a foreigner. 

She sued, citing the non-discrimination clause in the Japanese constitution, but this clause only applied to Japanese citizens. However, the judge noted that Japan had an international treaty on non-discrimination, and on this basis, decided in her favour.

The last sentence in the news story, however, I found strange. Just because a judgement was based on international law, it could not be appealed. But I don't know anything about the Japanese legal system, so I'll take it at face value. 

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The second story: On 17 Nov, the BBC reported that UK government would introduce, for the third time, a bill to reduce the age of consent for sex among gay men, from 18 to 16. This would harmonise it with the existing age of consent for heterosex. This promise was contained in the Queen's Speech from the Throne (actually a speech drafted by the government), opening a new session of Parliament. 

In the UK, it is legal, as of the time of writing, for people to have heterosex at age 16, the same as in Singapore. But one cannot have male-male homosex till at least 18. (In Singapore one cannot legally have homosex whatever your age.)

The European Commission had ruled in 1997 that this was discriminatory, and that it violated the European Convention on Human Rights. In response, the UK government promised to amend its laws, to avoid being taken to the European Court of Human Rights.

The first attempt to change the law was made in June 1998. In opening the debate in the House of Commons, Labour Party MP Ann Keen, whose son was gay, said it was ludicrous that heterosexual and lesbian teenagers should legally be allowed to have sex at 16, but young gay men were not. At the end of the debate, the Commons voted 336 to 139 in favour of equalising the age of consent at 16 for all. This vote was 70.7% in favour.

However, the House of Lords, in their vote one month later, rejected the bill.

The proposal was re-introduced early 1999. In a fresh vote on 1 March, with the party whips lifted and the House of Commons MPs free to vote according to their conscience, it was approved once again, this time by 281 to 82 votes (i.e. 77.4% in favour). But the following month, the House of Lords rejected it for a second time.

Now, in the Queen's Speech, the government has signalled its determination to push it through. The government has indicated that it would invoke the Parliament Act if necessary. This Act in effect says that if the Commons passes a measure three times in a row, the Lords cannot stand in its way. In any case, the House of Lords had, in the autumn of 1999, been reformed, with the majority of the hereditary peers excluded. This third time around, the bill is expected to become law, equalising the age of consent, and ending one form of discrimination against gay men. 


16 Nov 1999
Straits Times

Tokyo - After Ms Ana Bortz arrived from Brazil six years ago, she grew used to the countless means employed by the Japanese to enforce distinctions between themselves and others. She endured the bureaucratic devices, like the fingerprinting that every outsider has to undergo to get a temporary resident's card, and even became inured to the way Japanese avoided sitting next to foreigners on the subway. Or, worse for her, the almost daily stereotyping of Brazilians as criminals in the local press.

But what Ms Bortz, 35, a Brazilian television reporter, said she had not been prepared for was being escorted out of a jewelry store in Hamamatsu City because the store's owners had a policy of refusing to serve Brazilians. Ms Bortz sued, and to the surprise of many, won.

The Bortz case is being seen by many foreigners grappling with the legal system here as an invaluable precedent in their anti-discrimination struggle.

In English, Japan's 1946 constitution, written largely by American officials during the military occupation, states, "All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin." In the Japanese version, however, "all of the people" is rendered as kokumin, essentially meaning all Japanese people.

In the absence of Japanese laws covering the treatment of foreigners, the judge said that the country had to abide by its international treaties, in this case, the Convention on the Elimination of All Forms of Racial Discrimination adopted by Japan in 1996. "This was an illegal act against an individual," ruled Judge Tetsuro So, who cited Japan's treaty obligation last month in awarding Ms Bortz US$47,000 (S$75,000) in damages.

Because the judgement was based on international law, it cannot be appealed under Japanese law.



Tony Blair's government and the elected MPs are pushing this measure out of conviction. But they were given impetus by Britain's obligations under the European Convention on Human Rights.

There is a related story about the UK and the European Court of Human Rights, in the pink box on the right. I wove it together from various news stories.

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The third news item (17 Nov 1999) was about Kofi Annan visiting Beijing. The UN Secretary-General said that among his priorities was to discuss with the Chinese about the way they were handling the Falungong group. Recently, the Chinese government banned them and have been arresting hundreds, if not thousands, of their members.

Kofi Annan said that the issue was basically about the tensions between state sovereignty and the individual. "How we reconcile the need to protect state sovereignty and individuals within the state -- this question is a challenge faced by all of us."

But in addition to that, China is a signatory to the International Covenant on Civil and Political Rights, which guarantees freedom of speech and religion. Was its action against the Falungong in violation of the Covenant?

* * * * *

The way in which absolute sovereignty is being modified by treaty obligations is one of the most interesting developments in international law. For centuries, sovereignty was a principle whereby each state was free to act in any way it wished within its own territory and in relation to its own people. That's stating it a bit simplistically, but it's the gist of it. Some states chose to have internal checks and balances. Other states were characterised by virtually unchecked power given to the government of the day, who sometimes inflicted severe abuse on its own citizens. But whatever the system of administration, whatever way the government exercised its powers over its territory and its people, was no concern of outsiders. That was sovereignty.

When governments treated their people badly, and the state had no internal process for checking the abuse, who was there to hold such governments back? No one. Way back in the Roman Empire, Juvenal posed the question, Quis custodiet ipsos Custodes? Who is to guard the guards themselves?

Putting another government on top of the existing government would not solve the problem. Who could constrain the new, higher, level of government?

Treaties in the past were mostly used to regulate states' relationships with each other. It wasn't considered appropriate to interfere in each others' internal affairs. In the last half-century, however, there has been a number of treaties signed by various states in which they each undertook to abide by certain standards in their internal governance. The first two stories above illustrated the effect this had in Japan and Britain. In short, what is developing is a kind of peer review. States agree to subject their internal governance in key aspects, e.g. race or gender discrimination, to external comment and vetting.

Most of these treaties also included mechanisms that could apply pressure on the errant state to comply with the new undertakings, if not directly enforce them. The European Court of Human Rights is one such institution, outside the reach of the British government, but one to which the individual British citizen had recourse.

Even the WTO process, in which Singapore is proud to be participating, is one such example of this trend. By joining the World Trade Organisation, a country agrees to certain standards of free trade and level playing fields in its domestic economy, if not immediately, then at least as future goals. In return, the country enjoys more ready access to others' markets. There is also an international dispute-resolution mechanism to enforce the terms of the treaty on any errant member.

Singapore is not a signatory to any treaty so far on human rights. Does this mean that Singapore retains complete freedom of action with regard to these issues?

There is no easy answer there. On the face of it, yes, but I understand from a lawyer friend that there is an evolving body of opinion in international law that says that when the great majority of states in the international community have accepted certain norms, even states which did not explicitly accede to those norms, would increasingly be held to them. In a way, it's kind of parallel to human society. If the great majority of people think it is wrong for a man to beat his wife, then it won't be acceptable anymore for one man to argue that within his home he is free to act as he pleases. That is why my opening paragraph of this essay said it's a hopeful development. Perhaps one day, no sovereign government will be free to ill-treat its citizens.

Yawning Bread 


Gay ex-servicemen win legal battle

In late September 1999, the European Court of Human Rights ruled against the British government in a case brought by 4 gay persons who had been sacked from the UK armed forces because of their sexual orientation. The 3 men and 1 woman all had exemplary service records; even the government acknowledged that to be so.

As reported by the BBC, the European Court's judges declared unanimously that such a bar on entry into the army, navy and air force was illegal under the European Convention of Human Rights.

The government, defending its policy, had argued that their approach was based on a 1996 report by the Homosexuality Policy Assessment Team. Of that, the judges said, "Insofar as the views of the personnel outlined in the report could be considered representative, those views were founded solely on the negative attitudes of heterosexual personnel towards those of homosexual orientation."

Effectively, this was saying that any survey that did no more than collate homophobic attitudes and weak excuses why gay people could not serve, e.g. "adverse effect on morale", "don't want to share a shower with a gay person", however widespread these views were, could not be a basis for a policy of discrimination.