Opinio Juris

Who could have thought a tax case could be so ... exotic? On remand from the Supreme Court in the case of New York City v. Permanent Mission of India, Judge Rakoff was required to rule on whether New York City could recover property taxes from the Philippines, India, and Mongolia on portions of buildings used for non-consular purposes. But in order to do so the court had to distinguish between consular and non-consular purposes.

In the case of the Philippines, some of the property was leased by the Philippines government to a Philippine restaurant, Philippine bank (PNB), and Philippine airline (PAL). The question was whether any of those entities were performing consular functions within the meaning of the VCCR. The court ruled that the restaurant, but not the bank, was performing consular functions. The court was also quite emphatic that they did not have consular relations with that airline, PAL.

As the court noted, Article 5 of the VCCR "defines the purposes of a consular post broadly, by reference to its functions, i.e., 'furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State', 'protecting in the receiving State the interests of the sending State and of its nationals', 'ascertaining ... conditions and developments in the commercial, economic, cultural and scientific life of the receiving state, reporting thereon to the Government of the sending state', and 'helping and assisting nationals, both individuals and bodies corporate, of the sending State.'"

In assessing whether the restaurant performed such functions, the Court noted that from 1974 to 1982 the Philippine Center leased property to the Maharlika Restaurant, which "served authentic Filipino cuisine, employed Filipinos only, and was staffed with a Filipino dance troupe and musicians who performed a show during dinner. Through its culinary offerings and the evening performance, Maharlika showcased Philippine culture, folk art, ethnic music and dance to guests of the Mission and the Consulate General."

That was good enough for the court to find that the restaurant fell within the definition of consular relations. The purpose of the restaurant was to showcase Filipino culture, not to earn a profit. It did so by hiring only Filipino employees, presenting long Filipino dinner shows, and hosting official Philippine functions. "Maharlika was thus used exclusively for a consular purpose, and so is exempt under the VCCR."

I love it. As long as there is Filipino dancing you fall within Article 5's definition of "furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State." As for the lease with the Philippine bank and Philippine airline, no that just won't do. Far too much focus on Filipino commercial and economic relations, and not nearly enough emphasis on Filipino culture.

Now if the bank tellers had just doubled as Filipino dancers while serving customers, well, ... who knows, perhaps Filipino "teller and dancing" would suffice. Based on this YouTube video of the well-known Bayanihan Philippine Dance Company, it looks like they could multi-task.

It takes little courage to be a blogger in the United States. Perhaps professional reputation is at risk if things go badly, but there is little more to fear than that. Sure, every intellectual community has its village idiot, and the blogosphere is one of the easiest places to find people who crave attention and lack discretion. But the rashness of a buffoon hardly qualifies as courage. I suppose it takes some courage to do serious academic blogging, which has been described as "scholarship without a safety net." But that doesn't feel like courage, at least not to me. Like almost every other type of speech in this country, intellectual discourse on the Internet is both priceless and free.

Things are not so simple in other parts of the world. Reporters Without Borders just issued its annual report and it is a sobering read. The annual report highlights that most cases of censorship in the world today involve the Internet. Here are a few examples of bloggers facing persecution in 2007 for displaying courage:

Afghanistan: “Journalism student, Sayed Perwiz Kambakhsh, 23, who was arrested in October in Mazar-i-Sharif, was sentenced to death on 22 January 2008 after a closed doors trial at which he had no lawyer to defend him. He was convicted of “disseminating defamatory remarks about Islam”, for printing and distributing to friends an article he downloaded from the Internet that analyzes what the Koran says about the role of women.” (p. 70).

Bahrain: “Bahrain stepped up its censorship of online publications, especially those concerning human rights. A score of websites dealing with religion or politics were blocked by the authorities in 2007 on the excuse that they mentioned the Bandargate scandal. Bloggers are often arrested, showing that the rules are confused. More than a dozen journalists, bloggers and webmasters were prosecuted between April and October 2007 under articles 365 of the criminal law and article 47 of the press law. Since 2005, websites about Bahrain have to register with the information ministry, making it easier to control them.” (p. 156).

Bangladesh: “Tasneem Khalil, journalist and blogger (tasneemkhalil.com), was detained and tortured in May after openly criticising the army for the spread of extra-judicial killings.” (p. 74).

China: “Police began arresting dissidents and bloggers calling for improved human rights ahead of the staging of the Olympics. The best known of these “Olympics’ prisoners” is rights activist, Hu Jia, who was arrested at his Beijing home on 27 December. Police produced an arrest warrant accusing him of “inciting subversion of state power”. (p. 80) “100 or so journalists, Internet users and bloggers remain in the country’s prisons.” (p. 8)

Egypt: “Blogger Abdel Nabil Suleiman (“Kareem Amer”) was sentenced to four years in prison in February for “incitement to hatred of Islam” on his blog and for insulting Mubarak. He became the symbol of online repression for the country’s bloggers. Another blogger, Abdul Moneim-Mahmud, spent two months in prison accused of belonging to an “illegal organisation,” the Muslim Brotherhood. But his imprisonment was probably because he had posted text and photos online exposing torture by the security services.” (p. 154).

Iran: “Journalists not already in prison are summoned by judges who remind them they are only free conditionally. The most outspoken and critical Internet websites are closing one after another because of official censorship.” (p. 3)

Malaysia: “In the face of mounting criticism, the government of Abdullah Ahmad Badawi reacted with a crackdown. The internal security ministry, under the pretext of fighting incitement to racial hatred or insulting the king, set out to intimidate dissident voices, in particular bloggers. One minister threatened imprisonment against cyber-activists who opened up an unprecedented area of freedom.” (91)

Thailand: “Blogger Praya Pichaï spent two weeks in custody under Section 14 of the law against cyber-criminality for “defamation” and “harming national security”, accused of “criticising the monarchy” in an article posted on his blog (prachathai.com).The authorities then lifted the charges against him for lack of evidence, but he will be under surveillance for ten years and faces prison if he posts any new political comment on a website.” (p. 114).

Courage on the Internet. It is on full display throughout the world, but it is nowhere more apparent than in those countries where the stakes of free expression are so high. Anytime an academic blogger or commenter thinks he or she has courage, just ask the question, "Would I have the courage of these bloggers and be willing to face prison time just to defend my right to offend the state?"