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Tag Archives: real-estate
Posted: July 8, 2016 at 7:54 am
One of the most fascinating things about Brexit is the impact it will have on the world if it should come to pass. The United Kingdom may be no more than a collection of small islands, but it is … Read more
PIZZA! It doesnt matter if you live in Venice Beach, California or Venice Italy, pizza is universally loved. So when you love something, you definitely dont want to give it up due to a … Read more
It is true that the Forex market offers lots of thrill and excitement to its investors. Simultaneously, the risk involved in the affair cannot be ignored. So in no time, your huge gains can turn into … Read more
A few decades ago, starting a small business was pretty straightforward. You bought or rented a shop or some commercial real estate, you stocked it up with various goods, and you waited for people to … Read more
The path that takes you from the first sparks of start-up inspiration to business success is probably not going to be a straightforward one. Starting a new venture can be hectic, and it can often be … Read more
Click here to get a $20 voucher for your next Airbnb trip! I am a huge fan of Airbnb, the website that allows you to rent out your room to travelers, for a night, a week or a month. I like the … Read more
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Posted: June 29, 2016 at 6:34 pm
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Posted: June 21, 2016 at 6:45 am
The Minerva Reefs (Tongan: Ongo Teleki), briefly de facto independent in 1972 as the Republic of Minerva, are a group of two submerged atolls located in the Pacific Ocean south of Fiji and Tonga. The reefs were named after the whaleship Minerva, wrecked on what became known as South Minerva after setting out from Sydney in 1829. Many other ships would follow, for example the Strathcona, which was sailing north soon after completion in Auckland in 1914. In both cases most of the crew saved themselves in whaleboats or rafts and reached the Lau Islands in Fiji. Of some other ships, however, no survivors are known.
Both North and South Minerva Reefs are used as anchorages by yachts traveling between New Zealand and Tonga or Fiji. While waiting for favourable weather for the approximately 800-mile (1,300km) passage to New Zealand, excellent scuba diving, snorkelling, fishing and clamming can be enjoyed. North Minerva (Tongan: Teleki Tokelau) offers the more protected anchorage, with a single, easily negotiated, west-facing pass that offers access to the large, calm lagoon with extensive sandy areas. South Minerva (Tongan: Teleki Tonga) is in shape similar to an infinity symbol, with its eastern lobe partially open to the ocean on the northern side. Due to the lower reef and large entrance, the anchorage at South Minerva can be rough at high tide if a swell is running. The lagoon also contains numerous coral heads that must be avoided. While presenting an attractive area to wait out harsh weather occurring farther south, the Minerva reefs are not a good place to be when the weather is bad locally. This does not occur often, but it is important to maintain awareness of the situation and put to sea if necessary.
Scuba diving the outside wall drop-offs at the Minerva Reefs is spectacular due to the superb water clarity and extensive coral, fish and other marine life. There are few suspended particles and the visibility is normally in excess of 100 feet (30m) since there is no dry land at high tide. Of particular note are the numerous fan coral formations near the pass at North Minerva and the shark bowl area located by the narrow dinghy pass on the western lobe of South Minerva. The inside of the lagoon at South Minerva is also home to numerous giant clams. Divers at Minerva must be entirely self-sufficient, with their own compressor, and should also be aware that the nearest assistance is a multiple-day boat ride away in Tonga. Due to the vertical drop off and water clarity, divers must watch their depth carefully.
It is not known when the reefs were first discovered but had been marked on charts as “Nicholson’s Shoal” since the late 1820s. Capt H. M. Denham of the HMS Herald surveyed the reefs in 1854 and renamed them after the Australian whaler Minerva which collided with South Minerva Reef on 9 September 1829.
The Republic of Minerva was a micronation consisting of the Minerva Reefs. It was one of the few modern attempts at creating a sovereign micronation on the reclaimed land of an artificial island in 1972. The architect was Las Vegas real estate millionaire and political activist Michael Oliver, who went on to other similar attempts in the following decade. Lithuanian-born Oliver formed a syndicate, the Ocean Life Research Foundation, which allegedly had some $100,000,000 for the project and had offices in New York and London. They anticipated a libertarian society with “no taxation, welfare, subsidies, or any form of economic interventionism.” In addition to tourism and fishing, the economy of the new nation would include light industry and other commerce. According to Glen Raphael, “The chief reason that the Minerva project failed was that the libertarians who were involved did not want to fight for their territory.” According to Reason, Minerva has been “more or less reclaimed by the sea”.
In 1971, barges loaded with sand arrived from Australia, bringing the reef level above the water and allowing construction of a small tower and flag. The Republic of Minerva issued a declaration of independence on 19 January 1972, in letters to neighboring countries and even created their own currency. In February 1972, Morris C. Davis was elected as Provisional President of the Republic of Minerva.
The declaration of independence, however, was greeted with great suspicion by other countries in the area. A conference of the neighboring states (Australia, New Zealand, Tonga, Fiji, Nauru, Samoa, and territory of Cook Islands) met on 24 February 1972 at which Tonga made a claim over the Minerva Reefs and the rest of the states recognized its claim.
On 15 June 1972, the following proclamation was published in a Tongan government gazette:
A Tongan expedition was sent to enforce the claim the following day. It reached North Minerva on 18 June 1972. The Flag of the Tonga was raised on 19 June 1972 on North Minerva and on South Minerva on 21 June 1972.
Tongas claim was recognized by the South Pacific Forum in September 1972. Meanwhile, Provisional President Davis was fired by founder Michael Oliver and the project collapsed in confusion. Nevertheless, Minerva was referred to in O. T. Nelson’s post-apocalyptic children’s novel The Girl Who Owned a City, published in 1975, as an example of an invented utopia that the book’s protagonists could try to emulate.
In 1982, a group of Americans led again by Morris C. Bud Davis tried to occupy the reefs, but were forced off by Tongan troops after three weeks. In recent years several groups have allegedly sought to re-establish Minerva. No known claimant group since 1982 has made any attempt to take possession of the Minerva Reefs.
In 2005, Fiji made it clear that they did not recognize any maritime water claims by Tonga to the Minerva Reefs under the UNCLOS agreements. In November 2005, Fiji lodged a complaint with the International Seabed Authority concerning Tonga’s maritime waters claims surrounding Minerva. Tonga lodged a counter claim, and the Principality of Minerva micronation claimed to have lodged a counter claim. In 2010 the Fijian Navy destroyed navigation lights at the entrance to the lagoon. In late May 2011, they again destroyed navigational equipment installed by Tongans. In early June 2011, two Royal Tongan Navy ships were sent to the reef to replace the equipment, and to reassert Tonga’s claim to the territory. Fijian Navy ships in the vicinity reportedly withdrew as the Tongans approached.
In an effort to settle the dispute, the government of Tonga revealed a proposal in early July 2014 to give the Minerva Reefs to Fiji in exchange for the Lau Group of islands. In a statement to the Tonga Daily News, Lands Minister Lord Maafu Tukuiaulahi announced that he would make the proposal to Fiji’s Minister for Foreign Affairs, Ratu Inoke Kubuabola. Some Tongans have Lauan ancestors and many Lauans have Tongan ancestors; Tonga’s Lands Minister is named after Enele Ma’afu, the Tongan Prince who originally claimed parts of Lau for Tonga.
Area: North Reef diameter about 5.6 kilometres (3.5mi), South Reef diameter of about 4.8 kilometres (3.0mi). Terrain: two (atolls) on dormant volcanic seamounts.
Both Minerva Reefs are about 435 kilometres (270mi) southwest of the Tongatapu Group. The atolls are on a common submarine platform from 549 to 1,097 metres (1,801 to 3,599ft) below the surface of the sea. North Minerva is circular in shape and has a diameter of about 5.6 kilometres (3.5mi). There is a small sand bar around the atoll, awash at high tide, with a small entrance into the flat lagoon with a somewhat deep harbor. South Minerva is parted into The East Reef and the West Reef, both circular with a diameter of about 4.8 kilometres (3.0mi). Around both reefs are two small sandy cays, vegetated by low scrub and some trees[dubious discuss]. Several iron towers and platforms are reported to have stood on the atolls, along with an unused light tower on South Minerva, erected by the Americans during World War II.. Geologically, Minervan Reef is of a limestone base formed from uplifted coral formations elevated by now-dormant volcanic activity.
The climate is basically subtropical with a distinct warm period (DecemberApril), during which the temperatures rise above 32C (90F), and a cooler period (MayNovember), with temperatures rarely rising above 27C (80F). The temperature increases from 23C to 27C (74F to 80F), and the annual rainfall is from 170 to 297 centimeters (67-117 in.) as one moves from Cardea in the south to the more northerly islands closer to the Equator. The mean daily humidity is 80percent.
The Tuaikaepau (‘Slow But Sure’), a Tongan vessel on its way to New Zealand, became famous when it struck the reefs on 7 July 1962. This 15-metre (49ft) wooden vessel was built in 1902 at the same yard as the Strathcona. The crew and passengers survived by living in the remains of a Japanese freighter. There they remained for three months in miserable circumstances and several of them died. Finally Captain Tvita Fifita decided to get help. Without tools, he built a small boat from the wood left over from his ship. With this raft, named Malolelei (‘Good Day’), he and a few of the stronger crew members sailed to Fiji in one week.
Coordinates: 2338S 17854W / 23.633S 178.900W / -23.633; -178.900
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Posted: June 19, 2016 at 3:36 am
I first wrote about seasteading two years ago, shortly after the Seasteading Institute launched. The brainchild of Patri Friedman (grandson of Milton) and others, seasteading is a program for political reform based on a proliferation of self-governing ocean colonies. As I described it in 2008:
A key advantage of seasteads is what Friedman calls dynamic geography, the fact that any given seasteading unit is free to join or leave larger units within seasteading communities. Seasteading platforms would likely band together to provide common services like police protection, but with the key difference that any platform that was dissatisfied with the value it was receiving from such jurisdictions could leave them at any time. [Friedman] argues that this would move power downward, giving smaller units within society greater leverage to ensure the interests of their members are being served.
Seasteading is based on a delightfully bottom-up argument: that the problem with government is the lack of choice. If I dont like my job, my apartment, or my grocery store, I can easily pick up and go somewhere else. The threat of exit induces employers, landlords, and store owners, and the like to treat us well without a lot of top-down oversight. In contrast, switching governments is hard, so governments treat us poorly. Seasteaders aim to change that.
The pragmatic incrementalism of seasteading is also appealing. Friedman doesnt have to foment a revolution, or even win an election, to give seasteading a try. If he can just a few hundred people of the merits of his ideas, they can go try it without needing assistance or support from the rest of us. If the experiment fails, the cost is relatively small.
Yet seasteading is a deeply flawed project. In particular, the theory of dynamic geography is based on a fundamental misunderstanding of the relationships among mobility, wealth creation, and government power. In a real-world seasteading community, powerful economic forces would cripple dynamic geography and leave seasteaders no freer than the rest of us.
To see the problem, imagine if someone developed the technology to transform my apartment building in Manhattan into a floating platform. Its owners could, at any time, float us out into the Hudson river and move to another state or country. Would they do it? Obviously not. They have hundreds of tenants who are paying good money to live in Manhattan. Wed be furious if we woke up one morning and found ourselves off the coast of South Carolina. Things get more, not less, difficult at larger scales. Imagine if Long Island (which includes the New York boroughs of Queens and Brooklyn and a lot of suburbs) were a huge ocean-going vessel. The residents of Long Island would overwhelmingly oppose moving; most of them have jobs, friends, familiy, churches, favorite restaurants, and other connections to the rest of the New York metro area. The value of being adjacent to Manhattan swamps whatever benefits there might be to being part of a state with lower taxes or better regulations.
Successful cities need a variety of infrastructureroads, electricity, network connectivity, water and sewer lines, and so forth. At small scales you could probably design this infrastructure to be completely modular. But that approach doesnt scale; at some point you need expensive fixed infrastructuremulti-lane highways, bridges, water mains, subway lines, power plantsthat only make economic sense if built on a geographically stable foundation. Such infrastructure wouldnt be feasible in a dynamic city, and without such infrastructure its hard to imagine a city of even modest size being viable.
I think the seasteaders response to this is that the advantages of increased liberty would be so large that people would be willing to deal with the inconveniences necessary to preserve dynamic geography. But heres the thing: The question of whether the advantages of freedom (in the leave me alone sense) outweigh the benefits of living in large urban areas is not a theoretical one. If all you care about is avoiding the long arm of the law, thats actually pretty easy to do. Buy a cabin in the woods in Wyoming and the government will pretty much leave you alone. Pick a job that allows you to deal in cash and you can probably get away without filing a tax return. In reality, hardly anyone does this. To the contrary, people have been leaving rural areas for high-tax, high-regulation cities for decades.
Almost no ones goal in life is to maximize their liberty in this abstract sense. Rather, liberty is valuable because it enables us to achieve other goals, like raising a family, having a successful career, making friends, and so forth. To achieve those kinds of goals, you pretty much have to live near other people, conform to social norms, and make long-term investments. And people who live close together for long periods of time need a system of mechanisms for resolving disputes, which is to say they need a government.
The power of governments rests not on the immobility of real estate, but from the fact that people want to form durable relationships with other people. The residents of a seastead city would be no more enthusiastic about dynamic geopgrahy than the residents of Brooklyn. Which means that the government of the city would have the same kind of power Mayor Bloomberg has. Indeed, it would likely have more power, because the seastead city wouldnt have New Jersey a few hundred yards away ready to take disaffected residents.
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Posted: June 12, 2016 at 8:24 pm
Although many utopian societies seem doomed from the outset, the Republic of Minerva was up against a unique challenge: creating a libertarian micro-nation on reclaimed reefs in the Pacific Ocean, when the land already had an owner.
Situated 250 miles from Tonga, the Republic of Minerva was conceived by wealthy Nevada real estate mogul Michael Oliver. According to Oliver, his organization the Ocean Life Research Foundation had raised $100 million to create a utopian society on Pacific reefs. Oliver’s plan was to create a micro-nation without taxes, welfare or economic intervention, that lived chiefly off of tourism and fishing.
In 1971, Minerva’s construction began by bringing barges of sand to the reefs to raise them out of the ocean. Oliver then led a conference of neighboring states in which he delcared his intentions, only to find out that Tonga had issued a claim over the land. At that point, Oliver and his organization jumped the gun a little bit. Ignoring other claims to Minerva, Oliver issued a declaration of independence and created a coin currency for his new nation and was all set to launch into his experiment in nation building.
Unfortunately, the King of Tonga did not accept the new country’s legitimacy, and issued a document laying official claim to the reefs. Within months, representatives from Tonga made it clear they were in control of the reefs, and Oliver and his followers left without a fight.
Since that time, a few other groups have tried to set up shop on the islands of Minerva, only to be rebuffed once again by the Tongan government. Almost all of the land brought to the reefs has since been reclaimed by the Pacific Ocean.
Posted: at 12:38 am
Seasteading is the libertarian fantasy of attempting to establish a society on (or under) the sea. Given that a large swath of the oceans are international waters, outside the jurisdiction of any one country, some people see seasteading as the most viable possibility for creating new, autonomous states with their own pet political systems in place.
Given that international maritime law doesn’t, as such, recognize ginormous boats or artificial islands as stateless enclaves or independent nations, diplomatic recognition, if the owners actually need it, is somewhat problematic.
Seasteading is inspired by real life examples of boat-based provision of services not legal in certain countries. Examples include casino boats (ships that, upon reaching international waters, open up their gambling facilities to passengers) and the organization Women on Waves,[wp] which provides abortion services in countries (such as Ireland, Poland, Portugal and Spain) where abortion is illegal or in which the rules are stricter than they would prefer. Another example is pirate radio stations, which got their name from the fact that many of them operated from boats in international waters.
Several seasteading projects have been started; only two have ever been completed (three if you count Sealand and its ‘Prince’), and the vast majority have never even really begun. It is quite possible that herding libertarians is difficult.
Some cryonicists are seasteaders, which implies truly remarkably compartmentalised thinking about the value of large, stable social structures.
As they age, some libertarians are realising that replacing government may be more work than they can personally achieve as actualised individuals.Reason, of course, tells them not to stop thinking about tomorrow.
With the exception of Sealand, there have been three seasteading projects that could be considered “successful” in any sense of the word.
The longest-lived and most successful was the “Republic of Minerva,” an artificial island in the South Pacific constructed by real estate millionare Michael J. Oliver and his Phoenix Foundation using dredged sand to expand the tiny Minerva Reef. The intention was to establish an agrarian anarcho-capitalist utopia; presumably the libertarian supermen would evolve past the need to drink, as there was no source of fresh water on the island. Minerva formally declared independence in 1972 and attempted to establish diplomatic relations with the surrounding nations, though it was mostly ignored. The small settlement lasted for approximately five months, until the government of Tonga sent a military expedition (along with a convict work detail, a brass band, and HRM King Taufaahau Tupou himself) to claim the island by force (or rather, re-claim it; the original reef had been considered a culturally important Tongan fishing region). In 1982 a second group of Libertarians tried to reclaim the atoll but were again forced off by the Tongan military. Since then, the project has collapsed, and the island has since been mostly reclaimed by the sea.
Unabashed, Oliver tried to funnel funds into various separatist groups and revolutionaries in the Bahamas and Vanuatu, but was met with extremely little success. Today, the Phoenix Foundation still chugs on, eyeing tiny islands like the Isle of Man and the Azores and grumbling to themselves.
Rose Island (officially the “Respubliko de la Insulo de la Rozoj”) was a 400-square-meter artificial platform in the Mediterranean founded by an Italian casino entrepreneur in 1968. It styled itself as a libertarian capitalist state with Esperanto as its official language, but was in fact little more than a tourist resort complex, and had virtually no space for permanent residents. The Italian government, seeing the project as nothing more than a ploy to avoid having to pay taxes on revenue from the resort, seized the platform with police a few weeks after it opened and destroyed it with explosives.
Operation Atlantis was an American attempt by Libertarian soap-magnate Werner K. Steifel to create an anarcho-capitalist utopia (noticing a trend here?) in the Bahamas by building a large ferro-cement ship, sailing it to its destination, anchoring it there and living on it. The boat was built, launched from New York in 1971, and (after capsizing once on the Hudson river and catching fire) taken to its final position in the Caribbean, where it was secured in place. Preparations were made for the residents to immigrate to their new floating city-state, but unfortunately for them it sank almost immediately. After two more attempts and eventually pouring a lot of money into an island off the coast of Belize that he couldn’t get autonomy for, the project collapsed.
Libertarians are hardly the only people to try and colonize the ocean. China, for instance, has used a version of seasteading in order to enforce its claims on the Spratly Islands, an archipelago in the South China Sea that’s claimed in whole or in part by six nations (the PRC, the ROC, Vietnam, the Philippines, Malaysia, and Brunei). They’ve been hard at work using land reclamation to build artificial islands with airstrips, piers, harbors, and helipads, which they say are for military “and civilian” use.
The video game Bioshock features what is probably the best-known example of a seastead in popular culture.
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Posted: May 9, 2016 at 7:41 am
The Arango Orillac Building where the Mossack Fonseca law firm is situated at inPanama City. The absence of any prominent US institutions or citizens in the first list of names revealed by the ICIJ has spurred rumours ranging from a conspiracy to media bias. (REUTERS)
From China censoring its social media to the Kremlin alleging a CIA conspiracy, the Panama Papers revelations have caused major ripples through global powers, with implicated world leaders denying allegations of wrongdoing.
The Panama Papers on Monday brought to light the shadowy world of offshore companies and how the rich and the famous hide their wealth from public view, with its first list of names including heads of state, celebrities, prominent businessmen and football stars.
Spearheaded by the International Consortium of Investigative Journalists (ICIJ), and worked on by over 100 media organisations through the world, the leaks place a Panama-based law firm, Mossack Fonseca, at the centre of the tangled web of shell companies and paper trails.
However, the information, or the blank spaces in between, has led to sharp criticism on social media, with many commenting on the lack of US names or banks in the list. Conspiracy theorists allege a western plot to destabilise Russian president Vladimir Putin, while others raised more serious concerns of media bias.
Corporate media protecting the 1%?
The only direct US link to the Panama Papers so far is that of financial writer and life coach Marianna Olszewski – who allegedly employed a 90-year-old British man as a stand in to mask funds she had confidentially invested in an offshore company.
The lack of any prominent US citizen or institutions name appearing on the list – that too despite the ICIJ listing 617 middlemen that Mossack Fonseca worked with in the United States – has begun to attract conspiracy theories and criticism.
One of the most searing criticisms has been that of Craig Murray, the former British ambassador to Uzbekistan, and a prominent human rights figure.
In a blog post on Monday, Murray said that German daily Suddeutsche Zeitung had made the dreadful mistake of turning to the western corporate media to publicise the results.
In consequence the first major story, published today by the Guardian, is all about Vladimir Putin and a cellist on the fiddle. As it happens I believe the story and have no doubt Putin is bent, Murray wrote.
But why focus on Russia? Russian wealth is only a tiny minority of the money hidden away with the aid of Mossack Fonseca. In fact, it soon becomes obvious that the selective reporting is going to stink.
Do not expect a genuine expose of western capitalism. The dirty secrets of western corporations will remain unpublished.
Murray points to the US-based ICIJs funders as being a reason why no American politician or public figure has been named so far.
Their funders include the Ford Foundation, the Carnegie Endowment, The Rockefeller Family Fund, the WK Kellogg Fund and the Open Society Foundation (Soros) – all significant (and significantly wealthy) industrial and corporate entities.
I know Russia and China are corrupt, you dont have to tell me that, writes Murray. What if you look at things that we might, here in the West, be able to rise up and do something about?
While Murrays points have more substance than, say, conspiracy theorists on social media, its more likely that no United States citizens have been named because of the sheer volume of data that needs to be analysed.
Nonetheless, questions about media bias have been raised onTwitter.
I’m not saying #Putin isn’t guilty of any wrongdoing, I’m just pointing out the framing of the #PanamaPapers suggests a clear media bias.
World leaders actually named in the #PanamaPapers but Putin, who is NOT named, is used by all media covering story? pic.twitter.com/nthb26QtTE
These #Panama leaks don’t mention Putin once. Yet MSM have somehow found him guilty of multiple crimes. Propaganda overload! ?? #BlamePutin
Read: Panama Papers: N Korea shell companies funding nuclear weapons surface
Among the most high-profile names implicated in the leaks was Russian president Vladimir Putin. While the Russian leader was not directly named in the Panama Papers, some of his closest associates including Sergei Roldugin, godfather to Putins daughter Maria, and Yuri Kovalchuk, Bank Rossiyas biggest shareholder, were.
The leak exposes the offshore holdings of 12 current and former world leaders and reveals how associates of Russian President Vladimir Putin secretly shuffled as much as $2 billion through banks and shadow companies, the ICIJ wrote, while The Guardian on Monday led with how Putins closest friends had operated a network of companies and banks to allegedly create a slush fund for the former-KGB spy.
Read:Journalists working on Panama papers ex-CIA operative: Kremlin
Russia, unsurprisingly, has denied the allegations, with a spokesperson for the Kremlin saying that the leaks were a result of a CIA-backed anti-Putin campaign; a statement which has found vociferous support among Twitter users
Only very naive and stupid people open off-shore accounts in #Panama which is controlled by the CIA. #PanamaLeaks
Its obvious the main aim of this dump is our president in the context of parliamentary elections and, in the longer term, presidential elections… Its obvious the barbs of this attack are directed against our country and, personally, against our president, Dmitry Peskov said on Monday, according to RCB News.
The degree of Putinophobia has reached such a level that youre just not allowed to say good things about Russia or about Russias successes. The bad things that you have to talk about, Peskov added.
One of the few other Russian officials to address the sensational claims was Andrei Kostin, the head of state-owned banking giant VTB.
Mr. Putin was never involved. Its bullshit, Kostin said in an interview with Bloomberg on Monday.
Watch | The Panama Papers leak explained
Meanwhile, China also appears to be censoring social media posts about the Panama Papers leak which has named several members of Chinas elite, including President Xi Jinpings brother-in-law, Deng Jiagui.
The ICIJ shows Deng as having registered two companies in 2009; around about the same time that Jinping was rising in power.
An investigative report by Bloomberg News in 2012 revealed that Deng and his wife had hundreds of millions of dollars in real estate, share holdings and other assets.
Hundreds of posts on networks such as Sina Weibo and Wechat on the topic have been deleted since Monday morning.
The website Freeweibo.com, which actively tracks censorship on Weibo, listed Panama as the most censored term on the network.
The American angle
Given that the ICIJ has listed 617 middlemen in the US, it would be surprising, to say the least, if American figures were not linked to the growing scandal.
The law firm, which helped its clients (including firms subject to sanctions, such as in North Korea and Syria) set up offshore companies, came into the spotlight after more than 11 million of its internal files were leaked to German daily Suddeutsche Zeitung.
Zeitung then approached the ICIJ, which helped organise a 9-month long global investigation into the leaked files, the results of which were made public on Monday.
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Censorship, CIA and no US citizens: Panama Papers …
Posted: April 23, 2016 at 2:45 pm
The Fifth Amendment to the U.S. Constitution reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Bill of Rights, which consists of the first ten amendments to the U.S. Constitution, enumerates certain basic personal liberties. Laws passed by elected officials that infringe on these liberties are invalidated by the judiciary as unconstitutional. The Fifth Amendment to the Constitution, ratified in 1791, represents five distinct liberties the that Framers attempted to safeguard from majoritarian impulses: (1) the right to be indicted by an impartial Grand Jury before being tried for a federal criminal offense,(2) the right to be free from multiple prosecutions or punishments for a single criminal offense, (3) the right to remain silent when prosecuted for a criminal offense, (4) the right to have personal liberties protected by Due Process of Law, and (5) the right to receive just compensation when the government takes private property for public use.
The Framers of the Fifth Amendment intended that its provisions would apply only to the actions of the federal government. However, after the Fourteenth Amendment was ratified, most of the Fifth Amendment’s protections were made applicable to the states. Under the Incorporation Doctrine, most of the liberties set forth in the Bill of Rights were made applicable to state governments through the U.S. Supreme Court’s interpretation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. As a result, all states must provide protection against Double Jeopardy, Self-Incrimination, deprivation of due process, and government taking of private property without just compensation. The Grand Jury Clause of the Fifth Amendment has not been made applicable to state governments.
The Double Jeopardy Clause of the Fifth Amendment prohibits state and federal governments from reprosecuting for the same offense a defendant who has already been acquitted or convicted. It also prevents state and federal governments from imposing more than one punishment for the same offense.
For more than a century, courts have wrestled with the question of what constitutes an acquittal such that a person has already been placed in jeopardy for a particular offense. However, all courts agree that the Double Jeopardy Clause applies only to legal proceedings brought by state and federal governments in criminal court. It does not apply to legal proceedings instituted by purely private individuals in civil court.
The U.S. legal system has two primary divisions, criminal and civil. Criminal actions are designed to punish individuals for wrongdoing against the public order. Civil actions are designed to compensate victims with money damages for injuries suffered at the hands of another. An individual who has been acquitted in criminal court of murder can, without violating the Double Jeopardy Clause, be required in civil court to pay money damages to the family of a victim. Thus, the successive criminal and civil trials of O. J. Simpson, regarding the deaths of Nicole Brown Simpson and Ronald Goldman, did not constitute double jeopardy.
The Fifth Amendment’s prohibition against double jeopardy is rooted in Anglo-Saxon Jurisprudence. Yet, in England, the Crown sometimes ignored the right against double jeopardy. In certain important cases where an acquittal undermined royal interests, the defendant was tried again in a different manner or by a different court. The protection against double jeopardy was also extremely narrow under English Law. It applied only to capital crimes, in which the defendant would be subject to the death penalty if convicted. It did not apply to lesser offenses such as noncapital felonies and misdemeanors.
Massachusetts was the first colony that recognized a right against double jeopardy. Its colonial charter provided, “No man shall be twise [sic] sentenced by Civil Justice for one and the same Crime, offence, or Trespasse” (as quoted in United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 ). This charter, which served as a model for several other colonies, expanded the protection against double jeopardy to all crimes and offenses, not just capital felonies. Nonetheless, when the Bill of Rights was ratified in 1791, the constitutions of only two states expressly afforded double jeopardy protection. Thus, when James Madison submitted his proposal for the Fifth Amendment to Congress, he wanted to be sure that the right against double jeopardy would not be abused by the government, as it had been in England, or altogether forgotten, as it had been in the constitutions of eleven states.
Although Congress and the state ratifying conventions said very little about the Fifth Amendment’s Double Jeopardy Clause, the U.S. Supreme Court has identified several concerns that the Framers were trying to address when they drafted it: (1) preventing the government from employing its superior resources to wear down and erroneously convict innocent persons; (2) protecting individuals from the financial, emotional, and social consequences of successive prosecutions; (3) preserving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes; (4) restricting prosecutorial discretion over the charging process; and (5) eliminating judicial discretion to impose cumulative punishments not authorized by the legislature.
The Fifth Amendment’s right against self-incrimination permits an individual to refuse to disclose information that could be used against him or her in a criminal prosecution. The purpose of this right is to inhibit the government from compelling a confession through force, coercion, or deception. The Self-Incrimination Clause applies to any state or federal legal proceeding, whether it is civil, criminal, administrative, or judicial in nature. This privilege is frequently invoked during the trial phase of legal proceedings, where individuals are placed under oath and asked questions on the witness stand.
The privilege is also asserted with some frequency during the pretrial phase of legal proceedings. In the pretrial phase of criminal cases, it is usually asserted in response to pointed questions asked by law enforcement agents, prosecutors, and other government officials who are seeking to determine the persons responsible for a particular crime. During the pretrial phase of civil cases, parties may assert the right against self-incrimination when potentially damaging questions are posed in depositions and interrogatories.
The right against self-incrimination largely took hold in English law with the seventeenth-century trial of John Lilburne. Lilburne was a Puritan agitator who opposed British attempts to impose Anglican religious uniformity across England. In 1637, Lilburne was prosecuted for attempting to smuggle several thousand Puritan pamphlets into England. Before the Star Chamber (an English court with jurisdiction to extinguish nonconformity in the realm), Lilburne refused to take an oath requiring him to answer truthfully any question asked of him. He said that he could see that the court was trying to ensnare him, and he claimed that the law of God and the law of the land supported his right against self-accusation. Lilburne was whipped and pilloried for refusing to take the oath. Parliament later declared his punishment illegal, abolished the Star Chamber, and ultimately recognized the right against self-incrimination.
The American colonists, particularly the Puritans in Massachusetts, were familiar with the plight of Lilburne. Nonetheless, the Massachusetts Body of Liberties, a collection of rules of conduct for the Puritan colonists taken nearly verbatim from the Bible, permitted the use of torture to extract confessions from defendants who were accused of capital crimes. Many other colonies subjected political and religious dissenters to inquisitorial judicial proceedings not unlike those employed in England. In many of these proceedings, the accused persons were not entitled to remain silent but were often asked to provide evidence of their innocence. Even after the Revolution, the constitutions of four states offered no protections against self-incrimination. As Madison drafted the original version of the Fifth Amendment, the lessons of English and colonial history were firmly in his mind.
The U.S. Supreme Court has interpreted the Self-Incrimination Clause more broadly than many of the Framers probably would have. miranda v. arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), illustrates this point. In Miranda the Court held that any statements made by defendants while in police custody before trial will be inadmissible during prosecution unless the police first warn the defendants that they have (1) the right to remain silent, (2) the right to consult an attorney before being questioned by the police, (3) the right to have an attorney present during police questioning, (4) the right to a court-appointed attorney if they cannot afford one, and (5) the right to be informed that any statements they do make can and will be used in their prosecution. Although the Miranda warnings are not provided in the Fifth Amendment’s Self-Incrimination Clause, the Court has ruled that they constitute an essential part of a judicially created buffer zone that is necessary to protect rights that are specifically set forth in the Constitution.
In Dickerson v. United States 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed.2d 405 (2000), the U.S. Supreme Court concluded that the Miranda decision was based on Fifth Amendment principles and therefore that it could not be over-turned legislatively. Congressional anger at the Miranda decision had led to the passage in 1968 of a law, 18 U.S.C.A. 3501, that had restored voluntariness as the test for admitting confessions in federal court. However, the United States department of justice, under attorneys general of both major political parties, has refused to enforce the provision, believing the law to be unconstitutional. The law lay dormant until the Fourth Circuit Court of Appeals ruled in 1999 that Congress had the constitutional authority to pass the law. Chief Justice william rehnquist, a frequent critic of the Miranda decision, joined the majority in rejecting the Fourth Circuit interpretation. Although members of the Court might not agree with the reasoning and the rule of Miranda, Rehnquist acknowledged the essential place that Miranda has in U.S. law and society. He pointed out the importance that the judicial system places on Stare Decisis, a concept that counsels courts to honor judicial precedents to ensure stability and predictability in decision-making. A court should only overrule its case precedents if there is, in Rehnquist’s words, “special justification.” The Court in Dickerson concluded there were no special justifications.
Despite this decision the controversy over Miranda has not abated. In 2002 the Supreme Court took up the matter again when it reviewed Martinez v. Chavez, 270 F.3d 852 (9th Cir. 2001). The Court must decide whether the Fifth Amendment conveys a constitutional right to be free of coercive interrogation, or merely a right not to have forced confessions used against them at trial.
The Fifth Amendment’s Due Process Clause has two aspects: procedural and substantive. Procedural due process is concerned with the process by which legal proceedings are conducted. It requires that all persons who will be materially affected by a legal proceeding receive notice of its time, place, and subject matter so that they will have an adequate opportunity to prepare. It also requires that legal proceedings be conducted in a fair manner by an impartial judge who will allow the interested parties to present fully their complaints, grievances, and defenses. The Due Process Clause governs civil, criminal, and administrative proceedings from the pretrial stage through final appeal, and proceedings that produce Arbitrary or capricious results will be overturned as unconstitutional.
Substantive Due Process is concerned with the content of particular laws that are applied during legal proceedings. Before World War II, the U.S. Supreme Court relied on substantive due process to overturn legislation that infringed on a variety of property interests, including the right of employers to determine the wages their employees would be paid and the number of hours they could work. Since World War II, the Court has relied on substantive due process to protect privacy and autonomy interests of adults, including the right to use contraception and the right to have an Abortion.
The line separating procedure from substance is not always clear. For example, procedural due process guarantees criminal defendants the right to a fair trial, and substantive due process specifies that 12 jurors must return a unanimous guilty verdict before the death penalty can be imposed. The concepts of substantive and procedural due process trace back to English law. The Magna Charta provided, “No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way except by the lawful judgment of his peers, or by the law of the land” (art. 39). According to eminent English jurist Sir Edward Coke, law of the land and due process of law were interchangeable terms that possessed both procedural and substantive meaning.
The American colonists followed the English tradition of attributing substantive and procedural qualities to the concepts of due process and the law of the land. Maryland and Massachusetts, for example, equated the two concepts with colonial Common Law and legislation regardless of their procedural content. On the other hand, Virginia, Pennsylvania, and Vermont all passed constitutional provisions identifying the law of the land with specific procedural safeguards, including the right against self-incrimination. Thus, when the Due Process Clause was submitted to the state conventions for ratification, it was popularly understood to place procedural requirements on legal proceedings as well as substantive limitations on the law applied in those proceedings.
When the government takes Personal Property for public use, the law calls it a taking and protects it under the eminent domain clause of the Fifth Amendment. The Eminent Domain Clause permits the government to appropriate private property, both real estate and personal belongings, for a public purpose so long as the owner receives just compensation, which is normally equated with the fair market value of the property. The Fifth Amendment attempts to strike a balance between the needs of the public and the property rights of the owner.
The power of eminent domain was first recognized in England in 1215. Article 39 of the Magna Charta read,”no free man shall be disseised [deprived] of his freehold except by the lawful judgment of his peers, or by the law of the land.” No compensation was awarded to owners whose property was taken by the government for public use. Instead, English law merely required that the government obtain ownership of private property through existing legal channels, such as parliamentary legislation. This principle was followed in England for several centuries, and was later adopted by the American colonies.
Uncompensated takings of private property by colonial governments generally involved unimproved land (i.e., land that had not been built on). Colonial governments often appropriated private land to build roads and bridges in order to develop America’s frontiers. During the American Revolution, the power of eminent domain was used to seize the land of colonists who were loyal to Great Britain, and to obtain various goods for military consumption. Compensation was rarely given to individual owners who were deprived of their property by colonial governments because making personal sacrifices for the common good, including forfeiting personal property, was considered an essential duty of every colonist.
Not everyone in the colonies believed that personal property interests should always be sacrificed for the greater good of society. Many colonists expressed distress over legislatures that were abusing their power of eminent domain. New York, for example, regularly failed to recognize title to real estate in its colony that was held by residents of Vermont. Other colonies also discriminated in favor of their own residents, and against persons whose patriotism was questionable during the Revolution. It was in this context that the Eminent Domain Clause of the Fifth Amendment was drafted.
During the twentieth century, the U.S. Supreme Court has enlarged the protection against uncompensated takings of private property by state and federal governments. The Eminent Domain Clause has been interpreted to protect not only owners whose property is physically taken by the government, but also owners whose property value is diminished as a result of government activity. Thus, compensable takings under the Fifth Amendment result from Zoning ordinances that deny property owners an economically viable use of their land (Agins v. City of Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 ), environmental regulations that require the government to occupy an owner’s land in order to monitor groundwater wells (Hendler v. United States, 952 F.2d 1364 [Fed. Cir. 1991], land-use regulations that curtail mining operations (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322), and government-owned airports that lower property values in adjacent neighborhoods (United States v. Causby, 328 U.S. 256, 66S. Ct. 1062, 90 L. Ed. 1206 ).
The U.S. Supreme Court, in Palazzolo v. Rhode Island, 533 U.S. 606, 121 S. Ct. 2448, 150L. Ed.2d 592 (2001), declared that property owners may file lawsuits without filing additional permit applications. Most importantly, the Court overturned a ruling that barred property owners from filing suit if they took possession of the property after the environmental regulations had been enacted. It made no sense to allow a state to avoid suit simply because of a transfer of legal title to the property. Thus, the state “would be allowed, in effect, to put an expiration date on the Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.”
A grand jury is a group of citizens who are summoned to criminal court by the sheriff to consider accusations and complaints leveled against persons who are suspected of engaging in criminal conduct. Grand juries do not determine guilt or innocence. Instead, they determine whether Probable Cause exists to believe that the accused has committed a crime, and they return an indictment (i.e., a formal charge against the accused) if they do find probable cause. In common law, a grand jury consisted of not fewer than 12, and not more than 23, men. Today, grand juries impaneled before a federal district court must consist of not fewer than 16, and not more than 23, men and women.
Potential jurors are usually drawn from lists of qualified residents. Persons who are below the age of majority, who have been convicted of certain crimes, who or are biased toward the accused are ineligible to serve as grand jurors.
The grand jury originated in England during the reign of henry ii (115489). In 1166, a statute called the Assize of Clarendon was enacted. The assize provided that no person could be prosecuted unless four men from each township and 12 men from each hundred appeared before the county court to accuse the individual of a specific crime. This compulsory process, called a presenting jury, foreshadowed the grand jury as an accusatory body that identified individuals for prosecution but made no finding as to guilt or innocence.
As the grand jury system developed in England and colonial America, it protected innocent persons who faced unfounded charges initiated by political, religious, and personal adversaries. The impartiality of grand juries is essential. This is a significant reason why the proceedings are convened in secrecy; otherwise, public scrutiny and similar prejudicial influences could affect their decision-making process. Although grand juries must be impartial, accused persons have no constitutional right to present evidence on their behalf or to cross-examine witnesses, and Hearsay evidence may be introduced against them.
Helmholz, R.H. 1983. “The Early History of the Grand Jury and the Canon Law.” University of Chicago Law Review 50 (spring).
Hickok, Eugene W., Jr., ed. 1991. The Bill of Rights: Original Meaning and Current Understanding. Charlottesville: Univ. Press of Virginia.
Mermelstein, Mark, and Joel M. Athey. 2002. “In the Fifth Dimension: Problems Faced by Trial Lawyers When a Witness Invokes the Fifth Amendment.” Los Angeles Lawyer 25 (October).
Roxas, Angela. 2002. “Questions Unanswered: the Fifth Amendment and Innocent Witnesses.” Journal of Criminal Law and Criminology 93 (fall).
Treanor, William M. 1995. “The Original Understanding of the Takings Clause and the Political Process.” Columbia Law Review 95 (May).
Criminal Law; Criminal Procedure; Custodial Interrogation.