Tag Archive | "international law"

Source: https://www.humanium.org/en/child-labour-definition/

Mechanisms Currently Applied in the U.S. to Combat Child Labor: an Analysis of Various Types of Public and Private Policy Measures

Source: https://www.humanium.org/en/child-labour-definition/

Source: https://www.humanium.org/en/child-labour-definition/

The latest estimates by the International Labour Organization (ILO) found that 152 million children between the ages of 5 and 17 are subject to child labor around the world.[1] While there has been significant progress, between 2000 and 2012 the ILO found that child labor had fallen from 246 million to 168 million,[2] the current number of child laborers is still too high and experts in the field are “concerned that the pace of ending child labor has slowed decidedly.”[3] This brief will analyze some policy mechanisms currently applied in the U.S. to combat child labor as well as some new potential solutions.

Child labor is a subject that involves outrage and deep emotions, but besides its moral implications, it should be seen as a public policy priority. In fact, while “no single factor can fully explain the persistence of child labor”,[4] studies suggest that poverty and market forces in the globalized economy are the principal causes of child labor.[5] Thus, although the problem cannot be analyzed through the classical “market failure” lens it still warrants a definition as a public problem. It is, in part, precisely because the market is functioning well and exerting pressure to lower the costs of production as well as obliging businesses to adapt to fluctuation in supply and demand that child labor exists. In fact, employers in poor countries with a weak rule of law and a lack of good governance resort to child labor to lower costs and be able to compete with world prices.[6] By doing so they initiate and feed the vicious cycle of the ‘dynastic poverty trap’: children who labor will lack necessary skills and education as adults and therefore will only be employed in low-paid jobs.[7] Studies have also shown that “there is a high correlation between the prevalence of child labor and mortality among young adults”.[8]

Soft public measures: exerting pressure through public awareness and mediation

In 2008 Congress requested that the Department of Labor create and publish a list of goods produced by child labor and forced labor in order to increase awareness of consumers.[9] However, by not identifying specific companies or supply chains that resort to child labor[10] the list failed to distinguish between economic actors that tried to behave in a more socially responsible manner and the ones not doing any efforts. Thus, the list did not provide consumers with effective alternatives and had a very limited impact.

Other mechanisms such as the U.S. National Contact Point (U.S. NCP) for the OECD Guidelines for Multinational Enterprises[11] offer direct ways to hold specific companies accountable for human rights violations. The Guidelines are “recommendations addressed by governments to multinational enterprises operating from adhering countries. They provide non-binding principles and standards for responsible business conduct in a global context […]”.[12] National Contact Points are “agencies established by adhering governments to promote and implement the Guidelines”.[13] To exert their implementation function, NCPs will analyze grievances brought forth by individuals or NGOs alleging that a corporation has failed to behave according to the Guidelines in so-called “specific instances”[14] and will publish a non-binding “final statement”.[15] Essentially, this mechanism establishes a mediation procedure between victims, NGOs, and specific multinational corporations in cases of human rights violations that can include child labor, and exerts pressure on corporations by menacing them with bad publicity. However, its effectiveness in the fight against child labor is limited by various factors.

The first and most important one is the fact that multinational corporations rarely hire child laborers directly. The causal link between products sold in the U.S. and child labor is extremely stretched by complicated supply chain structures. Second, the mechanism is by its nature individual. It will only focus on the behavior of one specific corporation if the conditions are such that the victims or NGOs are able to bring forth a case. Child labor is a widespread phenomenon touching several different sectors. It is primarily concentrated in agriculture but is also present in the services and industry sectors.[16] Concentrating unevenly on reducing child labor in one sector, and even more so on reducing the child laborers used by one specific multinational corporation, only results in relocation of child laborers who usually find other occupations and end up in an even more precarious state.[17] It also seems inefficient from a cost-benefit standpoint since individual legal or semi-legal procedures are very expensive and, as explained, have a very limited impact on the global situation.[18] Finally, while it is true that the risk presented by potential bad publicity can be a strong incentive for corporations to behave in a more socially responsible manner, this incentive is strongly undermined by the fact that the U.S. NCP publishes very little information in its final statements, it merely proposes its mediation services but refuses to make a determination on whether the Guidelines were disregarded.[19]

Hard public measures: importing bans

One of the strictest mechanisms considered by the U.S. Congress was the 1995 Child Labor Deterrence Bill that aimed to prohibit the import of products made with the involvement of workers under the age of 15.[20] The bill was never adopted; however, it seems that the idea of such a regulatory measure has not been completely abandoned.[21] On first glance, it would seem that such a law could be a very effective tool to combat child labor because of its broad definition and the fact that it encompasses all sectors involved. A more in-depth analysis shows, however, some important implementation difficulties as well as negative side-effects. In order to assure compliance with the law, it would be necessary to establish a system permitting the monitoring of all imported goods and services to make sure that their production did not involve workers under the age of 15. Such a control mechanism would involve important costs for the government and by requiring companies to disclose, for example, the precise origin of their products and all their sub-components, can result in important price hikes for consumers and even unrealistic obligations for enterprises.[22] Most importantly, while such a law does not exclude any economic sector, the impact would be only on those sectors producing export goods and services for U.S. consumption. This excludes production of goods and services that are not exported or not exported to the U.S. market and would have as a consequence reduction of income in countries that already lack resources and displacement of child laborers to other occupations that greatly reduce their earnings and general well-being such as selling goods on the street and even prostitution. [23]
Dell Alienware ALW17 Charger
Dell Alienware M17x Charger
Furthermore, by prohibiting the importation of goods involving the work of children under the age of 15 the law implicitly condemns very different forms of child work activities and fails to take into account local cultural aspects as well as local economic necessities. As one author points out “not all work for children is inherently bad”.[24] Many children in developing countries will need to work to some extent for economic reasons or because of family traditions. The ILO defines child labor as work that is “mentally, physically, socially or morally dangerous and harmful to children; and interferes with their schooling […]”.[25] It is clear from this definition that not all products involving the work of children under the age of 15 automatically use child labor. As demonstrated by James Scott, many schemes that try to improve the human condition fail because they do not take into account local circumstances and differences between countries.[26] It is not enough to imagine that policies towards child labor will have the same effects in developing countries as they do in Western societies. To effectively combat the phenomenon the measure needs to take into account family choices that are driven by local customs, traditions and market structures.

Market-based measures: certification and labeling

Another potential solution is the implementation of voluntary or obligatory labeling. Instead of a strict prohibition to import certain products, this option aims to inform the consumer and allow him to make a choice depending on his preferences. It can take the form of origin labeling (producer needs to disclose the origin of all the components or certain component of the product) or, for example, fair trade certification (a private organization monitors the production and supply chain of the product and certifies that it has been created without child labor and with a fair pay to workers). Establishing mandatory country origin labeling for food products was considered by the E.U. in 2011, albeit not only for purposes of combatting child labor but it was strongly supported by ONGs who called consumers to boycott products that were produced with raw materials imported from countries where child labor prevails.[27] Advocates in the field saw such a measure as essential given that the agriculture sector is by far employing the most children and submits them to very harsh conditions. However, because of the problems mentioned above (prohibitory costs and unrealistic obligations for companies), the E.U. decided that the indication of country origin was voluntary except in very limited cases.[28] In any way, boycotting a food product on the basis of it country of origin, would first need knowledge on the part of the consumer that child labor prevails in that country in relation to that specific product, and second, admitting that consumers could correctly use the information provided and decide to boycott the product, it would have the same devastating effects on the children employed as the importation ban.

Fair trade certification is advanced as being a very effective alternative to current strategies to eliminate child labor. While it is already applied in the U.S. and the E.U mainly for cocoa, coffee, and tea products, it has received “virtually no attention in the legal community”.[29] Advocates of this measure point out that it not only certifies that products are child labor free, but also that adult laborers receive a fair pay thus allowing them to generally improve their condition and eventually break the vicious cycle of poverty. It is different from origin labeling in the sense that it does not condemn indiscriminately products coming from a specific country but gives consumers full information on how a good is produced thus aiming to create pressure to modify production and supply chain structures. Because of its voluntary and private nature, there is no obligation for the government to establish a monitoring system and there are no public costs. The system relies essentially on private monitoring and market incentives.[30] While the costs seem low and the benefits promising should the U.S. support through public policy choices the fair trade movement?

For such a system to function it is necessary that consumers care about such issues and take them into account when making their purchasing choices. In September 2016 three consumers in California filed a class-action suit against Hershey, Mars, and Nestlé, arguing that if they had known the products were tainted by child labor they wouldn’t have bought them.[31] Free trade advocates point out that consumers are “willing to purchase products at a premium if they were aware which products results from child labor”.[32] However, other studies find that at best “U.S. public-opinion data reveal mixed views regarding the importance to consumers of labor condition around the world.”[33] Most importantly, data advanced in favor of free trade is based only on what consumers say they are willing to do and not on actual consumer behavior.[34]

Besides the fact that consumer support is uncertain, there are other important negative aspects. First, critics argue that international certification mechanisms weaken local governments because of their paternalistic nature.[35] Second, there are important monitoring costs that, while not supported by the government, are paid by the companies and inflate product prices.[36] The resources spent in this way only cover monitoring and administrative activities carried out by the certification agencies and the companies and do not directly contribute to increased wages or better conditions. Finally, because the fair-trade certification market is not regulated or controlled it is difficult for consumers to know which certifications agencies are credible and which are only ‘selling’ their labels. While it would be possible for the government to establish public mandatory or voluntary certification initiatives or to require external monitoring of private certification agencies this would involve heavy bureaucratic structures and important costs.

Direct financial contribution: development aid

A final solution that has been tested is establishing social programs that reward parents financially when they send their kids to school.[37] Developed nations wanting to combat child labor can support such measures financially directly through granting development aid to local governments or in cooperation with local NGOs. Such a measure addresses directly the root of the problem and allows to take into consideration the specific local situation of each country or region as well as existent customs and traditions. While there are administrative and monitoring costs, these do not seem to be excessive. A study found that in general such programs have administrative costs of less than 10% of the budget. [38]The rest is distributed to families directly.

While experts tend to agree that these social programs are cost-effective and the most efficient way to combat child labor,[39] local governments, lobbied by local businesses, are not necessarily motivated to establish them without some degree of public pressure. For example, it wasn’t until the Bangladesh government and garment industry came under intense public scrutiny during the discussions around the 1995 Child Labor Deterrence Bill that local NGOs, UNICEF, and the ILO were able to negotiate a Memorandum of Understanding with employers to slowly eliminate child labor and establish a social program that would grant money to parents who send their children to school.[40]

Conclusion

Strict measures such as an import ban or mandatory origin labeling can appear intuitively to be an effective tool to combat child labor but, as demonstrated, they involve heavy costs, present important implementation difficulties and seem to only displace the problem and have devastating consequences. The real impact on child labor of voluntary certification procedures is at best uncertain and these measures also involve important bureaucratic and administrative costs that do not directly benefit affected populations. In my opinion, the U.S. should focus primarily on direct financial assistance to help promote social programs that incentivize parents to send their children to school. While these programs also involve bureaucratic and administrative costs and require a minimum level of monitoring to assure that the money is used for the intended purpose, they attack the root of the problem directly. However, a minimum form of pressure on countries affected by child labor and businesses using child labor needs to exist in order to create a negotiation climate that is open to such programs. Public soft policy measures aiming to publicly name and shame companies that use child labor are cost-effective ways that create this necessary pressure and should be used. Currently available soft mechanisms could be adapted to fulfill this purpose. Additionally, voluntary certifications procedures can help in creating such pressures if consumer sensitivities continue to evolve. The U.S. should analyze cost-effective ways in which it can support these private initiatives and assure that agencies are credible and transparent.

Samantha Bloch is a LLM student at the University of Denver Sturm College of Law and outgoing Business & Events Editor on the Denver Journal of International Law and Policy.

[1] ILO, 40 Million in Modern Slavery and 152 Million in Child Labour Around the World, ILO Newsroom (Sep. 19, 2017) http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_574717/lang–en/index.htm.

[2] Child Labor Coalition, Child Labor Coalition Statement on New Estimates of Child Labor (Sep. 22, 2017), http://stopchildlabor.org/?p=4443.

[3] Id.

[4] U.N. Secretary-General, Status of the Convention on the Rights of the Child, U.N. Doc. A/64/172 (July 27, 2009).

[5] Shima Baradaran & Stephanie Barclay, Fair Trade and Child Labor, 43 Colum. Hum. Rts. L. Rev. 1, 13-17 (2011).

[6] Id. at 16-17.

[7] Roland Pierik, Fighting Child Labor Abroad: Conceptual Problems and Practical Solutions, in The Ethical Dimensions of Global Development 47, 47 (Verna Gehring ed. 2007).

[8] Fernanda Estevan & Jean-Marie Beland, Mortality Risks and Child Labor (Centre d’Etudes et de Recherche sur le Developpement International, Working Paper), http://cerdi.org/uploads/sfCmsContent/html/199/Estevan.pdf.

[9] Solidarity Center, Labor Dept.: Steps Made in Fight Against Child Labor (Sep. 30, 2016), https://www.solidaritycenter.org/labor-deptartment-says-steps-made-fighting-child-labor/.

[10] Baradaran & Barclay, supra note 5, at 38.

[11] OECD, OECD Guidelines for Multinational Enterprises, 2011 Edition (Oct. 19, 2011), available at http://www.oecd.org/daf/inv/mne/48004323.pdf [hereinafter the Guidelines].

[12] Id. at 3.

[13] Id.

[14] Id. at 68.

[15] Id. at 73.

[16] ILO, supra note 1 (remarking that the agriculture sector accounts for 70.9% of child labor, the service sector for 17.1% and the industry sector for 11.9%).

[17] Pierik, supra note 7, at 48-49.

[18] Baradaran & Barclay, supra note 5, at 37-38 (explaining in more detail the limiting impact of random prosecution on the child labor problematic).

[19] Samantha Bloch, The US and Corporate Social Responsibility in International Business Transactions: has Anything Changed?, The View From Above (May 5, 2018), http://djilp.org/7237/the-us-and-corporate-social-responsibility-in-international-business-transactions-has-anything-changed/.

[20] Pierik, supra note 7, at 48.

[21] Baradaran & Barclay, supra note 5, at 34.

[22] Olivier Nieburg, West Africa Boycott Needed for Slave-Free Chocolate, Says Consumer Group, Confectionery News (Dec. 8, 2014), https://www.confectionerynews.com/Article/2014/12/08/West-Africa-chocolate-Child-labor-origin-labeling (remarking that the European Cocoa Association pointed out that “mandatory origin labeling of cocoa products is pointless and could lead to a 30% price hike in consumer chocolate prices because separate sourcing for specific origins and increased storage capacity would be required. It [also] argues that it is unrealistic for companies to label coca origins because beans are regularly blended from various origins and manufacturers often change sourcing practices to secure a better price”).

[23] Pierik, supra note 7, at 48 (the author writing in 2007 estimates that businesses that export goods only employ 5% of working children).

[24] Id. at 48.

[25] ILO, Child Labor, https://libguides.ilo.org/child-labour-en.

[26] James C. Scott, Seeing Like a State (Yale Univ. Press, 1998).

[27] See, e.g., Nieburg, supra note 22.

[28] Elena Bertolotto, The indication of the place of production on the foodstuffs labels: the Italian proposal, Lexology (Oct. 23, 2015), https://www.lexology.com/library/detail.aspx?g=e82b6031-c7ff-4a9e-bee3-f201f07e8260.

[29] Baradaran & Barclay, supra note 5 at 1.

[30] Id.

[31] Brian O’Keefe, Inside Big Chocolate’s Child Labor Problem, Fortune (Mar. 1, 2016), http://fortune.com/big-chocolate-child-labor/.

[32] Baradaran & Barclay, supra note 5, at 39.

[33] Gary Gereffi, Ronie Garcia-Johnson & Erica Sasser, The NGO-Industrial Complex, 125 Foreign Policy 56, 59 (2001).

[34] Baradaran & Barclay, supra note 5, at 46.

[35] Gereffi, Garcia-Johnson & Sasser, supra note 33, at 56.

[36] Id. at 60.

[37] Pierik, supra note 7, at 52-53.

[38] Id. at 53.

[39] Eric V. Edmonds & Maheshwor Shrestha, You Get What You Pay For: Schooling Incentives and Child Labor (NBER Working Paper No. 19729, Cambridge MA, Aug. 2013), http://www.nber.org/papers/w19279.

[40] Pierik, supra note 7, at 53.

Posted in DJILP Online, DJILP Staff, Featured Articles, Samantha BlochComments (0)

Source: https://www.miningreview.com/press-releases/mining-top-africa-summit-moves-frankfurt-2017/

What Are the Top Social Risks Facing the Mining Industry?

Source: https://www.miningreview.com/press-releases/mining-top-africa-summit-moves-frankfurt-2017/

Source: https://www.miningreview.com/press-releases/mining-top-africa-summit-moves-frankfurt-2017/

“The [mining] industry’s relationship with society is both critical and under pressure”[1]. This statement made four years ago by Canada’s former Extractive Sector Corporate Social Responsibility (CSR) Counsellor is still as relevant today as it was back then, maybe even more. With metal prices on the rise, a trend that is expected to continue[2], conflicts and social opposition are more likely to appear[3]. Under these circumstances, the top social risks facing the mining industry today are communities’ higher expectations, dependency, and lack of public trust.

With the CSR movement gaining more and more momentum in the consumer, investment and legal spheres[4], and the rising prices of metals, local communities’ expectations towards mining companies have increased significantly.  The industry is now faced with demands requesting the negotiations of agreements that would allow communities to obtain a greater benefit.

A more equitable value-sharing should, however, be established in a manner that will support communities in becoming more independent. The risk of creating dependency of local communities to the mining project is of great importance given that the natural resources extracted are limited and non-renewable and that the industry is cyclic. Mining corporations are challenged to be development actors that work alongside governments instead of replacing them[5] and to help create diversification of mining-based regions[6].

Additionally, the industry is currently facing a lack of public trust. Mining activities are automatically connected with important negative impacts. From environmental concerns to corruption, local communities fear the disruptions that projects may cause. It is therefore critical for the industry to adopt high and continuous transparency and accountability standards and effective methods of information sharing and dialogue. Effective management of this risk directly impacts the two previously discussed issues. As citizens are given practical means to monitor the execution of the project, they not only gain responsibility and therefore independence but also reassurance that benefits are being fairly shared.

In conclusion, although all three identified risks are crucial, the weight of each in a specific project will largely depend on the development status of the country where it is carried out. Demands of greater transparency and accountability will probably need to be addressed more immediately Dell Alienware M17x R1 Charger in countries with a very high or high Human Development Index while issues of equitable value-sharing and dependency will be more pressing in countries with a low or medium index.

Samantha Bloch is a LLM student at the University of Denver Sturm College of Law and outgoing Business & Events Editor on the Denver Journal of International Law and Policy.

[1] Marketa D. Evans, Escalating Social Risk Around Mining, 134 Can. Min. J. Don Mills 36 (2013).

[2]  Evolución de Precios de los Metales, Semana Económica (2017), http://semanaeconomica.com/infographics/evolucion-de-precios-de-los-metales/ (last visited Oct. 27, 2017).

[3] Alvaro Roncal, Mejores Precios Elevan Riesgos Sociales para las Mineras, Semana Económica (2017), http://semanaeconomica.com/article/sectores-y-empresas/mineria/220476-enfrentando-nuevos-retos/ (last visited Oct. 27, 2017).

[4] Ashley Walter, Introducing Corporate SocialDell Alienware M17x R2 Charger Responsibility Law, 42 No. 4 Law Prac. 12 (2016).

[5] Lynne Featherstone, The Changing Role of Mining in Development Economies,  https://www.gov.uk/government/speeches/the-changing-role-of-mining-in-developing-economies (last visited Oct. 27, 2017).

[6] OECD Mining Regions: Building a Network to Enhance Productivity and Well-Being, Antofagasta, Chile, 5-7 October 2017, http://www.oecd.org/regional/regional-policy/Mining-regions-network-background.pdf (last visited Oct. 27, 2017).

Posted in DJILP Online, DJILP Staff, Featured Articles, Samantha BlochComments (0)

Bloomberg

Do the Migrant Protection Protocols Really Protect Migrants?

Bloomberg

Bloomberg

I. Introduction

The Migrant Protection Protocols (“MPP”) announced by Secretary of the Department of Homeland Security (“DHS”),Kirstjen Nielsen, in December 2018 were initially implemented in January 2019.[1] Recent litigation questioning the legal authority of DHS to implement what has been referred to as the “Remain in Mexico” policy, first resulted in an injunction[2] and then a ruling that the policy can continue to be enforced.[3] The rhetoric used by DHS in the MPP and the subsequent litigation reveals that despite its name, the protocols are designed at fortifying the southern border at the expense of migrant protections.

II. Migrant Protection Protocols

 Secretary Nielsen announced that the DHS would begin to implement Section 235(b)(2)(C) of the Immigration and Nationality Act (“INA”) on a “large-scale basis to address the migration crisis. . .”[4] On January 24, 2019, DHS issued a press release stating, “MPP will help restore a safe and orderly immigration process, decrease the number of those taking advantage of the immigration system, and the ability of smugglers and traffickers to prey on vulnerable populations. . .”[5] The press release went on to explain that this policy would be implemented pursuant to Section 235 of the INA.[6]

III. Recent Decisions regarding Migrant Protection Protocols

      On April 8, 2019, the Northern District of California, issued a preliminary injunction against the enforcement of the Migrant Protection Protocols.[7] Specifically, the court held that the plaintiffs made a strong showing that they would be likely to succeed on the merits of their claim that MPP lacks a legal basis for applying the contiguous territory return provision to their cases.[8] The court went on to state that even if there was a legal basis for the application of the contiguous territory return provision to the plaintiffs involved, the plaintiffs were able to show that they were more likely than not to be successful in claiming that MPP does not have sufficient protection to avoid refoulement under Article 33 of the United Nations 1951 Convention.[9]

On May 7, 2019, the Ninth Circuit Court of Appeals stayed the preliminary injunction pending the appeal.[10] While the panel of three ultimately agreed that a stay was appropriate, the substance of their opinions varied. From a desire for efficient administration of immigration law at the border and honoring agreements with the Mexican government to the belief that DHS’ policy not to ask migrants whether they fear persecution in Mexico was irrational and that the government’s reading of the statute was new and clearly wrong, the judges agreed to a stay on widely varied grounds.[11]

IV. The Future of Asylum Law in the United States

            President Trump has proposed four main changes to the way asylum cases are handled in the United States. First, Trump has proposed a fee for asylum applications.[12] Trump has also proposed to end the work authorization that is currently allowed six months after an asylum seeker files an asylum application.[13] The President has also proposed two new regulations affecting the immigrations courts and how they process asylum cases, creating asylum-only immigration courts on an accelerated basis.[14]

The language employed in the MPP Press Release suggesting that such protocols will “reduce the number of aliens taking advantage of U.S. law and discourage false asylum claims”[15] falsely leaves the reader with the impression that the majority of migrants fleeing their country in search of a better life and an opportunity to survive are nothing more than illegal immigrants launching fraudulent asylum claims to take advantage of the United States. While some of Trump’s proposals to process cases more quickly might actually help migrants reach a resolution in their case and more stable immigration status more quickly, rushed court proceedings, fees, and the inability to work does not serve to protect the most vulnerable asylum-seekers.[16]

Elena Engels is a 2L at University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

[1] U.S. Immigration and Customs Enforcement, Policy Guidance for Implementation of the Migrant Protection Protocols 1 (Jan. 25, 2019).

[2] Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110, 1110 (N.D. Cal. 2019).

[3] Innovation Law Lab v. McAleenan, No. 19-15716, 2019 WL 2005745, at *4 (9th Cir. 2019).

[4] U.S. Immigration and Customs Enforcement, Policy Guidance for Implementation of the Migrant Protection Protocols 1 (Jan. 25, 2019).

[5] Press Release, U.S. Dep’t of Homeland Security, Migrant Protection Protocols (Jan. 24, 2019) https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols.

[6] Id.

[7] Innovation Law Lab v. Nielsen, 366 F. Supp. 3d at 1114.

[8] Id. at 1126.

[9] Id. at 1126-27.

[10] Innovation Law Lab v. McAleenan, No. 19-15716, 2019 WL at *4.

[11] Id.

[12] Aaron Reichlin-Melnick, Trump Wants to Make These 4 Disastrous Changes to the Asylum System, Immigration Impact (May 1, 2019), http://immigrationimpact.com/2019/05/01/trump-wants-4-changes-asylum-system/.

[13] Id.

[14] Id.

[15] Press Release, U.S. Dep’t of Homeland Security, Migrant Protection Protocols (Jan. 24, 2019) https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols.

[16] Aaron Reichlin-Melnick, Trump Wants to Make These 4 Disastrous Changes to the Asylum System, Immigration Impact (May 1, 2019), http://immigrationimpact.com/2019/05/01/trump-wants-4-changes-asylum-system/.

Posted in DJILP Online, DJILP Staff, Elena Engel, Featured ArticlesComments (0)

Source: LexOrbis

The Misappropriation of Traditional Knowledge

Source: LexOrbis

Source: LexOrbis

“Traditional knowledge constitute[s] [an] integral [element] of indigenous peoples’ societies and cultures and, consequently, indigenous peoples’ rights to autonomy and self-governance [extends] to such knowledge.”– James Anaya, Former Special Rapporteur on the rights of indigenous peoples[1]

 I. What is Traditional Knowledge?

This article will discuss examples of misappropriation of traditional knowledge, existing international legal frameworks aimed at protecting it, and new developments in international law. Traditional knowledge (TK) is the “knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles.”[2] TK is “developed from experience gained over the centuries” and is passed down “from generation to generation.”[3] TK is collectively owned and takes the form of “cultural values, beliefs, rituals, community laws, local language, and agricultural practices, including the development of plant species and animal breeds.”[4]

 II. Misappropriation of Traditional Knowledge

Biopiracy is the appropriation of traditional knowledge for commercial profits.[5] Biopiracy has produced billions of dollars worldwide primarily in the pharmaceutical industry. Communities in States with the most biodiversity and/or high populations of indigenous communities are most at risk of biopiracy. Instances of biopiracy include:

Community/Country of Origin Resource Associated with Traditional Knowledge
iTaukei in Fiji Kava
Andean People in Peru Maca
India Turmeric
India & Pakistan Basmati Rice
India Neem
India Jamun
Indigenous Peoples in Amazon Ayahuasca
San Tribes in Southern Africa Hoodia
Mexico Tepezcohuite
Indigenous Peoples in Andes Quinoa

III. International Instruments

As the commercial misappropriation of traditional knowledge proliferates around the world, traditional knowledge demands greater protection. However, given the gradual, inter-generational, and communal nature of traditional knowledge, existing intellectual property regimes have failed to protect it.[6] Key principles that have attempted to protect traditional knowledge thus far include the principle of prior informed consent and the principle of fair and equitable benefit sharing.

TheWorld Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (Committee)is currently negotiating a new treaty that could allow for the protection of traditional knowledge by harmonizing national, regional, and international standards.[7] However, protection must also be flexible enough to account for the context-specific concerns of traditional knowledge holders, potential users, and States involved.

IV. The Convention on Biological Diversity (CBD) and The Nagoya Protocolon Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD (Nagoya Protocol)

Article 8(j) of the CBD puts forth a general obligation, requiring States to “respect, preserve, maintain and promote knowledge” of indigenous peoples and “promote their wider application with the approval and involvement of the holders of such knowledge.”[8] Article 7 of the Nagoya Protocol expounds upon this obligation by requiring States to “take measures, with the aim of ensuring that traditional knowledge” held by indigenous communities is accessed with their “prior and informed consent or approval and involvement.”[9] The CBD also requires States to “encourage the equitable sharing of the benefits arising from the utilization” of TK.[10] The Nagoya Protocol furthers this obligation by requiring States to take “legislative, administrative or policy measures” to ensure fair and equitable benefit-sharing for uses of TK.[11]

 V. The Protection of Traditional Knowledge:Draft Articles (Draft Treaty)

The most recent version of the Draft Treaty was transmitted to the Committee at its 39thSession on March 22, 2019, which they will revisit between June 17-21, 2019.[12] The Preamble recognizes the right of indigenous and local communities “to maintain, control, protect and develop their intellectual property over their cultural heritage, including their traditional knowledge”; promotes “respect for . . . the dignity, cultural integrity and spiritual values of [] traditional knowledge holders”; and recognizes “the need for new rules and disciplines concerning the provision of effective and appropriate means for the enforcement of rights relating to traditional knowledge, taking into account differences in national legal systems.”[13]

Elements of the misappropriation of traditional knowledge covered in the Draft Treaty’s alternative definitions include: (1) “access” or “use”; (2) “without free, prior and informed consent or approval and involvement, and, where applicable, without mutual agreed terms,” “in violation of customary law and established practices governing the access or use of such traditional knowledge,” or in “violation of national law in the provider country”; and (3) for the purpose of “commercial, research, academic and technology transfer.”[14]

While there are three alternatives of the Draft Treaty’s objectives, the first most specifically addresses three key issues required to protect traditional knowledge. In particular, the Draft Treaty states, “The objective of this instrument is to provide effective, balanced and adequate protection relating to intellectual property against”: (1) misappropriated traditional knowledge; (2) “uncompensated” (or failure to provide monetary or non-monetary benefits) traditional knowledge use; and (3) “the erroneous grant of intellectual property rights over traditional knowledge.”[15]

The Scope of (and Conditions of) Protection affirms the following principles: (1) Member States should refer to customary laws and practices of TK holders; (2) “Member States [should/shall]” take national measures to ensure TK holders have an “exclusive and collective right to maintain, control, use, develop, authorize or prevent access to and use/utilization of their traditional knowledge; and receive a fair and equitable share of benefits arising from its use”; and (3) “Member States [should/shall]” take measures to “protect the integrity of traditional knowledge” or protect economic and moral interests of TK holders or respect “cultural norms and practices.”[16]

While the Draft Treaty has made progress in terms of recognizing and prioritizing the needs and interests of local and indigenous communities, several gaps remain. The Committee has identified the following areas in which the law can be further developed (a non-exhaustive list): (1) specifying which elements of TK are subject to legal protection; (2) stronger or more specific prior informed consent language than the Nagoya Protocol; (3) how to account for inventions based on TK; (4) how to protect against misappropriation of TK; (5) whether TK needs to be disclosed and what would be required for disclosure; (6) whether intellectual property law protection is applicable in the context of traditional knowledge apart from the invalidation of unlawful patents; and (7) an appropriate framework for equitable benefit sharing.[17]

 VI. Conclusion

While challenges to protecting some of the world’s most vulnerable populations persist, the international community has finally prioritized the issue of traditional knowledge by negotiating the Draft Treaty. By recognizing customary laws and the cultural value of traditional knowledge as integral to the identity of local and indigenous communities, the Draft Treaty demonstrates potential. It remains to be seen how the negotiations will attempt to balance the areas of sovereignty over a State’s natural resources, intellectual property rights, human rights, indigenous rights, and environmental concerns. Another area of future interest for the negotiations will be how the Draft Treaty frames the relationship between national law and international law protection. Traditional knowledge reflects “a rich cultural heritage”[18] and it is up to all actors in the global community to protect it.

Meera Nayak is the Executive Editor of the Denver Journal of International Law & Policy, and a 3L at the Sturm College of Law.

[1]Statement, Professor James Anaya, Special Rapporteur on the rights of indigenous peoples, Indigenous Peoples’ Rights to Genetic Resources and Traditional Knowledge, U.N. Statement (February 4, 2013).

[2]Convention on Biological Diversity, art. 8(j), June 5, 1992, 1760 UNTS 79 [hereinafter CBD].

[3]Traditional Knowledge, Innovations and Practices, Convention on Biological Diversity, https://www.cbd.int/traditional/intro.shtml[hereinafter CBD Website].

[4]CBD Website.

[5]John Reid, Biopiracy: The Struggle for Traditional Knowledge Rights, 34 Am. Indian L. Rev.77, 79 (2009).

[6]Teshager Dagne, The Protection of Traditional Knowledge in the Knowledge Economy: Cross-Cutting Challenges in International Intellectual Property Law, 14 Int’l Comm. L. Rev.137, 147-148 (2012).

[7]The Protection of Traditional Knowledge:  Draft Articles, March 22, 2019, WIPO/GRTKF/IC/40/4 [hereinafter Draft Treaty].

[8]CBD, art. 8(j).

[9]The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, art. 7, October 10, 2010[hereinafter Nagoya Protocol].

[10]CBD, art. 8(j).

[11]Nagoya Protocol, art. 5(1).

[12]Draft Treaty.

[13]Draft Treaty, Preamble.

[14]Draft Treaty, art. 1.

[15]Draft Treaty art. 2.

[16]Draft Treaty, art. 5.

[17]The Protection of Traditional Knowledge: Updated Draft Gap Analysis, WIPO Doc. WIPO/GRTKF/IC/39/6 (January 16, 2019).

[18]Nagoya Protocol, Preamble.

Posted in DJILP Online, DJILP Staff, Featured Articles, Meera NayakComments (0)

Source: Financial Times

Citizenship issues for returning ISIS fighters

Source: Financial Times

Source: Financial Times

In recent years, more and more countries across Europe and the United States have been running into legal issues in deciding whether or not to strip returning ISIS fighters and their families of their citizenship. After the collapse of ISIS’ caliphate, those members, who joined ISIS from Western countries, are now trying to return to their home countries. An estimated 6,000 European nationals joined ISIS over the last few years.[1] And an estimated 300 joined from the United States.[2] This leads the governments of returnee citizens to worry about, not only the implications of letting them return in terms of consequences for their actions, but also the risk of returnees further radicalizing and influencing other individuals in society, or even in prison.

Most recently, the question of legality of the practice of not allowing ISIS fighters to return, came up when two women who joined ISIS in Syria and Iraq were trying to return to their respective countries, the United Kingdom and the United States. President Trump instructed the State Department not to allow the U.S.-born woman to re-enter the U.S., after she left for Syria from Alabama in 2014, where she is currently retained in a Kurdish camp.[3] Meanwhile, Home Secretary Javid, of the U.K., has moved to revoke citizenship for a woman who is begging to return to the U.K., after leaving four years ago, to marry an ISIS fighter in Syria.[4]

Most countries of returning fighters have been struggling with how to deal with these issues. The European Union has been adamant on keeping ISIS returnees as far away as possible, leaving hundreds of E.U. citizens in Kurdish-led Syrian Democratic Forces (SDF) camps for captured fighters. The main reason for this E.U. practice is that it would be tremendously difficult to prosecute these foreign fighters in E.U. courts, as the burden of proving foreign terrorist involvement would rely very heavily on evidence from and investigations in a conflict zone.[5] A related cause for European governments is that, even if there is limited evidence, this so called ‘battlefield evidence’ would not be admissible in court, due to the manners in which it would have been obtained.[6]

Another reason European countries specifically want to keep returnees away, is that governments are not allowed to strip persons of their citizenship, as no person is to be without citizenship of a country, as Article 15 of the Universal Declaration of Human Rights states that “everyone has the right to a nationality”.[7] The German government decided that it will, under this human right, strip dual-citizens who fought for ISIS and other terrorist groups of their German citizenship, arguing that, because those individuals are still left with the other citizenship, it is lawful, although not retroactively.[8]

As of the date of this article, governments of France, Germany, and the U.K. are looking to fellow countries’ courts, awaiting decisions on these cases; but are so far reviewing them on a case-by-case basis, trying to prosecute and rehabilitate these foreign fighters, without violating their Human Rights.[9]

Vanessa Jacobsen is a 2L at University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

[1]Joana Cook & Gina Vale, From Daesh to ‘Diaspora’: Tracing then Women and Minors of Islamic State, International Centre for the Study of Radicalization, 2018, https://icsr.info/wp-content/uploads/2018/07/Women-in-ISIS-report_20180719_web.pdf.

[2]Alexander Meleagrou-Hitchens et al., The Travelers – American Jihadists in Syria and Iraq, Program on Extremism, 2018, https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/TravelersAmericanJihadistsinSyriaandIraq.pdf.

[3]Joseph Hincks,How ISIS Returnees Are Stirring a Debate Over Citizenship, Security and Rule of Law, TIME, 2019, http://time.com/5534674/shamima-begum-hoda-muthana-isis/.

[4]Id.

[5]Anthony Dworkin, In legal limbo: EU Returnees in the post-ISIS Era, European Council on Foreign Relations, 2019, https://www.ecfr.eu/article/commentary_in_legal_limbo_eu_returnees_in_the_post_isis_era.

[6]Rachel Kennedy, What is Europe’s approach to repatriating ISIS members?, Euronews, Mar. 7, 2019,https://www.euronews.com/2019/03/07/what-is-europe-s-approach-to-repatriating-isis-members-euronews-answers.

[7]G.A. Resolution (III) 217 A at art. 15(1), Universal Declaration of Human Rights (Dec. 10, 1948).

[8]Germany to Strip Dual-Nationals Who Fight for Isis of Citizenship, Financial Times, https://www.ft.com/content/1c929f90-3e6b-11e9-9bee-efab61506f44.

[9]Rachel Kennedy, supranote 6.

Posted in DJILP Online, DJILP Staff, Featured Articles, Vanessa JacobsenComments (0)

Source: CNBC

The Impact of the European Union on American Businesses: Google Fined for Antitrust Violations

Source: CNBC

Source: CNBC

In March, the European Commission fined Google LLC and its parent company, Alphabet Inc. (Google), €1.49 billion (which equals almost $1.7 billion) for abusive online advertising practices that broke the European Union’s (EU) antitrust rules.[1] Google’s practices prevented or limited its rivals from working with companies that were doing business with Google and shielded Google from competitive pressure. This is the third multi-billion dollar penalty the EU has recently laid on Google.[2]

Google’s as Online Search Advertising Brooker

When a consumer conducts a search through a search function that is embedded in another website, the website delivers search results as well as search adverts which appear alongside the search results. Google provides these search adverts through its program AdSense for Search (AdSense) and acts itself as intermediary between the advertisers and the website owners. For years, AdSense contracts gave Google a wide range of control over the adverts.[3]

European Commission

Source: European Commission

EU Antitrust Rules and the European Commission’s Decision

EU antitrust policy is developed from two central rules set out in the Treaty on the Functioning of the European Union (TFEU).[4] The first rule is article 101 TFEU which prohibits agreements between independent market operators that restrict competition. The second rule is article 102 TFEU which prohibits market participants that hold a dominant position on a given market to abuse that position. The European Commission is empowered to apply these rules and impose fines.[5] It has done so with its decision finding that Google has abused its market dominance by preventing rivals from competing in the online search advertising intermediation market.

Google Antitrust Threads in the US

Although one of the most significant characteristics of the new antitrust approach in the United States has been the increased focus on innovative companies in high-tech industries,[6] the most serious antitrust thread Google faced in the United States was an investigation without penalties conducted in 2013 by the Federal Trade Commission.[7]

Conclusion

The EU is one of the largest partners of the United States,[8] and it appears that the EU is increasingly setting standards that American companies must meet to remain competitive in the global marketplace: As a result of the fines by the European Commission, Google has changed how it does business.[9] Given the tendency of the EU to generally attribute a higher priority to protection of consumer rights and the minimization of free-market distortions resulting from monopolies or unfair trade practices, the increased impact of EU regulations may be welcomed by many consumers.

Julia Robert is the incoming Executive Editor  for the Denver Journal of International Law and Policy and a 2L at the University of Denver – Sturm College of Law.

[1]European Commission Press Release IP/19/1770, Antitrust: Commission fines Google €1.49 billion for abusive practices in online advertising (Mar. 3, 2019).

[2]European Commission Press Release IP/18/4581, Antitrust: Commission fines Google €4.34 billion for illegal practices regarding Android mobile devices to strengthen dominance of Google’s search engine (July 18, 2018); Commission Press Release IP/17/1784, Antitrust: Commission fines Google €2.42 billion for abusing dominance as search engine by giving illegal advantage to own comparison shopping service (June 27, 2017).

[3]For details, see European Commission Press Release IP/19/1770, supra note 1.

[4]Consolidated Version of the Treaty on the Functioning of the European Union, Oct. 10, 2012, 2012 O.J. (C 326) 47 [hereinafter TFEU].

[5]TFEU, supra note 4 at art. 105.

[6]Geoffrey A. Manne & Joshua D. Wright, Google and the Limits of Antitrust: The Case Against the Case Against Google, 34 Harv. J. L. & Pub. Pol’y 171, 173 (2011).

[7]Federal Trade Commission, Press Release, Google Agrees to Change Its Business Practices to Resolve FTC Competition Concerns In the Markets for Devices Like Smart Phones, Games and Tablets, and in Online Search, https://www.ftc.gov/news-events/press-releases/2013/01/google-agrees-change-its-business-practices-resolve-ftc (Jan. 3, 2013).

[8]Countries and Regions, United States, European Commission, http://ec.europa.eu/trade/policy/countries-and-regions/countries/united-states/ (last updated Apr. 15, 2019).

[9]EU Fines Google $1.7 Billion Over ‘Abusive’ Online Ad Strategies, NPR(Mar. 20, 2019, 1:25 PM), https://www.npr.org/2019/03/20/705106450/eu-fines-google-1-7-billion-over-abusive-online-ad-strategies.

Posted in DJILP Online, DJILP Staff, Featured Articles, Julia RobertsComments (0)

Enterra Solutions

The Rise of Corporate Social Responsibility

Enterra Solutions

Enterra Solutions

Corporate social responsibility (CSR) is a rising trendin business practices as consumers continue to demonstrate their preference for socially and environmentally conscious companies.[1] Though consumers, and their ethically use of buying power, are the predominant factor pushing companies towards socially and environmentally conscious practices, legal developments are also creating legally binding obligations for business to respect human rights. The most relevant developments in the field holding companies liable for human rights violations include mandatory disclosure laws, legislation to stop unfair business practices, and innovative use of contractual terms.

Mandatory disclosure laws are a legally binding obligation for companies to engage in a form of human rights due diligence. In the United States, the California Supply Chain Transparency Act mandates companies doing business in California with a revenue greater than 100 million dollars supply a statement describing how the organization verifies no human trafficking exists in its supply chain.[2] Similar legislation is currently being discussed in the United States’ Congress; if this law is passed this same disclosure mandate would apply to all companies doing business in the United States. The United Kingdom’s Modern Slavery Act[3] and the recently passed Duty of French Vigilance Law[4] are other disclosure laws that impose even greater obligations on business to respect and protect human rights. For example, the Duty of French Vigilance law imposes compensatory damages of up to 10 million euros for violation of the obligations in the act.[5]

Beyond mandatory disclosure laws, Section 17200 of the California Business and Professions Codehas been repeatedly used by California courts as legally binding precedent mandating companies respect and protect human rights.[6] In Doe v. Unocal, Burmese villagers suffered forced labor, rape, torture, and murder while working for the defendant, Unocal.[7] The company defendant ultimately settled after the California court held that Section 17200 supports claims “brought in California for injuries occurring outside of California as long as some of the wrongful conduct occurred within California.”[8] Furthermore, in Kaksy v. Nike, the California Supreme Court again interpreted the unfair business practices regulation widely, holding it to include “any unfair or fraudulent business act of practice.”[9]

Finally, human rights advocates, such as Corporate Accountability Lab,[10] are utilizing innovative ways to create contractual terms that hold companies to respect human rights. Some examplesof these contractual terms include ethical intellectual property licensing agreements and third-party beneficiary clauses.[11] Through ethical intellectual property licensing agreements, inventors who wish to ensure their property is not used for human rights violations can include specific legal clauses that prohibit the licensee from using their inventions in unethical ways.[12] If these terms are violated, the inventor will be entitled to liquidated damages that should be given to the victim of the human rights violation. Similarly, third-party beneficiary terms can be included alongside mandatory working conditions in manufacturing contracts.[13] These terms establish the workers of the factory as third-party beneficiaries to the contract, and if the labor standards are violated the factory workers have a right of action.[14]

Though CSR is predominantly advancing based on consumer pressure, some developments in the legal field are creating binding obligations for companies to respect human rights. Hopefully, human rights advocates can utilize both forms of pressure to promote and advance the fundamental human rights of citizens around the world.

Mallory Miller is a Staff Editor with the Denver Journal of International Law & Policy, and a 2L at the Sturm College of Law.

[1] Temasek, The Rise of the Conscious Consumer, Medium (July 7, 2017), https://medium.com/future-of/the-rise-of-the-conscious-consumer-bcc5235cb80d.

[2]Cal. Civ. Code § 1714.43 (West).

[3]The Companies Act 2006, c. 46 (Eng.)

[4]L. no. 2017-399, 27 Mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre[French Corporate Duty of Vigilance].

[5]Id.

[6]Roger Alford, The Future of Human Rights Litigation After Kiobel, 89 Notre Dame L. Rev.1749, 1758 (2013-2014).

[7]Doe I v. Unocal Corp., 395 F.3d. 932 (9th Cir. 2002).

[8]Alford, supra note 6 at 1759.

[9]Alford, supra note 6 at 1759.

[10]Our Mission, Corporate Accountability Lab, https://legaldesign.org/.

[11]Projects,Corporate Accountability Lab, https://legaldesign.org/projects/.

[12]Id.

[13]+Cal Employment Agreement Assignment Clause,Corporate Accountability Lab, https://legaldesign.org/assignment-clause.

[14]Id.

Posted in DJILP Online, DJILP Staff, Featured Articles, Mallory MillerComments (0)

Source: New York Times

No-Deal Brexit – What Happens to the UK and its Global Neighbors?

Source: New York Times

April 12th is quickly approaching, and with it comes the growing reality of a no-deal Brexit.[1] The effects will extend far beyond the confines of the U.K. An estimate from the Leibniz Institute for Economic Research Halle (IWH) and the Martin Luther University Halle-Witternberg in Germany predicts that 612,000 people, in 43 countries, will be impacted by a no-deal exit.[2] Even with a trade agreement, London alone can lose up 5,000 jobs.[3] The Bank of England predicts its economy will decrease by 6.3-9% in the 15 years post no-deal Brexit compared to if the U.K. remained in the E.U. [4] The Bertelsmann Foundation estimates that a no-deal Brexit will cost the U.K. approximately 57 billion euros a year and the E.U. 22 billion euros.[5]

Stark change is also inevitable in the day-to-day lives of those living in the U.K. Housing markets are predicted to drop by as much as 30%.[6] Furthermore, an already decreased food supply due to increasingly prevalent summer droughts is likely to become more diminished with the addition of custom delays.[7] As of now, only 50% of the U.K.’s food supply comes from the U.K. itself,[8] with 33% being imported from the E.U.[9] This becomes troublesome when combined with the potential tariffs as high as 22% for orange juice, 74% for tobacco[10], and up to 15% for meat and dairy on other E.U. countries.[11] Brexit means British citizens will only be allowed to travel to the E.U. for up to 90 days without a passport,[12] and U.K. companies will likely lose the option to bid on E.U. public contracts.[13]

Surrounding countries will feel the effect, as economies are expected to contract by 8% in Scotland and 9.1% in Northern Ireland.[14] Loss in income per head can be expected to be as high as 726 euros/head in Ireland, 732 euros in the U.K., 120 euros in France, and 115 euros in Germany.[15] The U.K. imported approximately 70 billion pounds worth of goods from the U.S. and close to 78 billion pounds from Germany while exporting more than 110 billion in pounds to the U.S. and close to 55 billion in pounds to Germany in 2017 alone.[16] Germany is predicted to have as many as 100,000 jobs effected by the exit, with 15,000 people in Germany currently employed in motor exports specifically targeting the U.K. alone [17] (approximately 800,000 cars/year[18]). In January 2019, France announced a 50 million euro plan to assure additional customs-hiring such that ports and airports can remain in place to assure that UK companies can continue operating in France following a no-deal Brexit.[19] The U.S. will certainly feel the effects as transactions with their fourth largest market become significantly more costly[20]and American companies lose their English-speaking port into the European economy. [21]

In the meantime, an emergency E.U. summit on April 10 determines the fate of Theresa May’s request for an exit extension until June 30, 2019.[22]

Lisa Caris is the incoming Candidacy Editor for the Denver Journal of International Law and Policy and a 2L at the University of Denver – Sturm College of Law.

[1] Kimberly Amadeo, Brexit Consequences for the U.K., the EU, and the United States (Apr. 3, 2019), https://www.thebalance.com/brexit-consequences-4062999.

[2] David Reid, A ‘No-Deal’ Brexit Could Hit 100,000 German Jobs(Feb. 18, 2019), https://www.cnbc.com/2019/02/18/a-no-deal-brexit-could-hit-100000-german-jobs-study-claims.html.

[3] Amadeo, supra note 1.

[4] Marjorie Chorlins, The Harsh Consequences of a No-Deal Brexit(Jan. 30, 2019), https://www.uschamber.com/series/above-the-fold/the-harsh-consequences-of-no-deal-brexit.

[5] Tobias Buck, No-Deal Brexit Will Hammer Both UK and EU(Mar. 21, 2019), https://www.ft.com/content/f9a5fd52-4b2a-11e9-bbc9-6917dce3dc62.

[6] Allison McCann, Milan Schreuer & Amie Tsang, Where Europe Would Be Hurt Most by a No-Deal Brexit(Feb. 7, 2019), https://www.nytimes.com/interactive/2019/02/07/world/europe/brexit-impact-on-european-union.html.

[7] Amadeo, supra note 1.

[8] BBC Visual Journalism Team, Brexit: 10 Ways You Could Be Affected (Mar. 22, 2019), https://www.bbc.com/news/uk-politics-47470864.

[9] Amadeo, supra note 1.

[10] Amadeo, supra note 1.

[11] McCann, supra note 6.

[12] Agence France-Presse, EU Approve Visa-Free Travel for Britons after “No Deal” Brexit(Apr. 3, 2019), https://www.france24.com/en/20190403-eu-approves-visa-free-travel-britons-schengen-after-no-deal-brexit.

[13] Amadeo, supra note 1.

[14] Orla Ryan, Impact of No-Deal Brexit Would Be “More Severe” and Last Longer in Northern Ireland Than Anywhere Else(Feb. 26, 2019), https://www.thejournal.ie/impact-of-no-deal-brexit-on-northern-ireland-4514836-Feb2019/.

[15] Buck, supra note 5.

[16] BBC Visual Journalism Team, supra note 8.

[17] Amadeo, supra note 1.

[18] McCann, supra note 6.

[19] Victor Mallet, French Employers Warn of No-Deal Brexit “Chaos” (Feb. 2, 2019), https://www.ft.com/content/89aae73c-2632-11e9-b329-c7e6ceb5ffdf.

[20] Amadeo, supra note 1.

[21] Amadeo, supra note 1.

[22]Peter Barnes, Brexit: What Happens Now? (Apr. 5, 2019), https://www.bbc.com/news/uk-politics-46393399.

Posted in DJILP Online, DJILP Staff, Featured Articles, Lisa CarisComments (0)

Source: REUTERS/Naif Rahma

The Yemeni Civil War: Human Rights Violations by Coalition Forces

Source: REUTERS/Naif Rahma

Source: REUTERS/Naif Rahma

CONFLICT OVERVIEW:

The Yemeni Civil War is currently considered the world’s largest humanitarian crisis.[1] More than three million Yemenis have been displaced; one million have contracted cholera—the largest outbreak of the disease in history; and 22 million—roughly three-quarters of the country’s population—are at risk of famine.[2] The conflict is rooted in a failed political transition that forced the longtime authoritarian president, Ali Abdullah Saleh, to hand over power to his deputy, Abdrabbuh Mansour Hadi.[3] In November of 2014, the Civil War broke out when Houthi Rebels allied with forces loyal to former President Saleh and seized control over much of the country.[4] President Hadi subsequently fled to Saudi Arabia and sought assistance from the international community.[5]

It was at this point that Saudi Arabia intervened based on an Article 2(4) exception to the U.N Charter[6], and formed the Saudi-led coalition.[7] On March 26, 2015, Saudi Arabia began a military intervention alongside eight other Arab states.[8] The U.S., U.K. and France also began supplying the coalition with logistical support.[9] Despite the apparent legality of the Coalition’s initial use of force, the Coalition has subsequently been accused of violating both international humanitarian law and human rights law.

AIRSTRIKES:

The principle of distinctionrequires that “parties to [a] conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.”[10] While humanitarian law recognizes that some civilian casualties are inventible, it imposes a duty to distinguish between combatants and civilians, and to target only combatants and other military objectives at all times.[11]

Despite this established legal norm, the Coalition has seemingly failed to make these necessary distinctions. Coalition air strikes are responsible for most of the documented civilian casualties.[12] In 2018, the United Nations condemned the Saudi-led military coalition for killing civilians and destroying infrastructure, including health centers with airstrikes.[13] The Protocols to the Geneva Convention afford special protections to medical facilities and educational, cultural and religious sites in times of conflict.[14] Despite this, many such facilities and sites have been hit by coalition air strikes throughout this conflict, suggesting that either 1) distinctions are not being made between military targets and protected persons or objects; or 2) the no-strike list of protected objects has not been adequately shared or respected within the coalition command chain.[15]

BLOCKADES:

Even before civil war erupted, Yemen relied heavily on food imports because of a scarcity of water for agriculture.[16] Since the beginning of the Civil War, an air, land and sea blockade by the Coalition has choked off supplies of critical resources including fuel, food, and medical aid.[17] International humanitarian law requires that all parties to a conflict allow and facilitate rapid and unimpeded passage of humanitarian relief, including food, medical supplies, and other survival items.[18] This de factoblockade has left an estimated 78% of the Yemeni population in need of food, water and medical aid.[19] Even when supplies do make it to Yemeni ports, the war has disrupted critical infrastructure, including the road networks used for distribution.[20]

ADDITIONAL HUMAN RIGHTS VIOLATIONS:

Although the airstrikes and blockades constitute the bulk of the Coalition’s alleged violations, a 2018 U.N. report also outlined grounds to substantiate the belief that the Governments of Yemen, the United Arab Emirates and Saudi Arabia are responsible for additional human rights violations, including unlawful deprivation of the right to life, arbitrary detention, rape, torture, ill-treatment, enforced disappearance and child recruitment.[21]

THE FUTURE OF YEMEN:

The humanitarian crisis in Yemen is rarely covered at length in the media, in part due to restrictions and difficulties traveling to the country, combined with reticence about explaining the complexities of the conflict. However, if an end to the conflict is to ever fully be realized, it is imperative that the world keeps in mind and acknowledges the human price of this war. This can only be done if world leaders, including those at the head of the American government, acknowledge the very real and very severe human cost of war, condemn the human rights violations occurring in Yemen, and ultimately end and rectify their own complicity.

Payton Martinez is a Staff Editor with the Denver Journal of International Law & Policy, and a 2L at the Sturm College of Law.

[1] Daniel Nikbakht & Sheena McKenzie, The Yemen War is the World’s Worst Humanitarian Crisis, UN Says, CNN(Apr. 3, 2018), https://www.cnn.com/2018/04/03/middleeast/yemen-worlds-worst-humanitarian-crisis-un-intl/index.html.

[2] Alan Sipress et al., Five Reasons the Crisis in Yemen Matters, Washington Post(June 8, 2018), https://www.washingtonpost.com/graphics/2018/world/why-yemen-matters/?utm_term=.2e7a9b98dd77 [hereinafter Why Yemen Matters].

[3] BBC, Yemen Crisis: Why is There a War?, (Nov. 20, 2018), https://www.bbc.com/news/world-middle-east-29319423 [hereinafter Why is There a War?].

[4] Human Rights Watch, Yemen Events of 2017, (2017), https://www.hrw.org/world-report/2018/country-chapters/yemen.

[5] Id.

[6] U.N. Charter art. 2, ¶ 4. The legal basis for Saudi’s initial intervention in Yemen relates to Article 2(4) of the United Nations Charter. Id.Article 2(4) functions as an absolute prohibition on the use of force, however the use of force has been deemed permissible if it falls under one of three exceptions, including invitation by the government of the State in which the force is being used. Id.In the case of Yemen, the Coalition’s initial use of force has been justified under this exception. Oona Hathaway & Aaron Haviland, View from Socotra Island: Yemen War and Threats to UN Charter, Just Security (May 22, 2018), https://www.justsecurity.org/56585/yemen-war-arm-sales-socotra-island-eroding-norm-territorial-sovereignty/.

[7] Human Rights Watch, supranote 4.

[8] Human Rights Council, Rep. on the Situation of Human Rights in Yemen, Including Violations and Abuses Since Sept. 2014, U.N. Doc. A/HRC/39/43, at 4 (2018) [hereinafter Rep. on the Situation of Human Rights] (explaining Bahrain, Egypt, Jordan, Kuwait, Morocco, Senegal, Sudan, and the United Arab Emiratesform the Saudi-led coalition).

[9] Id.at 4-5.

[10] Id.

[11] Id.

[12] Rep. on the Situation of Human Rights, supranote 8 at 5.

[13] U.N. News, U.N. Agency Chiefs Condemn Saudi-coalition Led Air Strike that Killed Dozens in Western Yemen, U.N. (Aug. 24, 2018), https://news.un.org/en/story/2018/08/1017742.

[14] Rep. on the Situation of Human Rights, supranote 8 at 6.

[15] Rep. on the Situation of Human Rights, supranote 8 at 6.

[16] Why Yemen Matters, supranote 2.

[17] Id.

[18] Rep. on the Situation of Human Rights, supranote 8 at 8.

[19] Selam Gebrekidan & Jonathan Saul, In Blocking Arms to Yemen, Saudi Arabia Squeezes a Starving Population,Reuters(Oct. 11, 2017), https://www.reuters.com/investigates/special-report/yemen-saudi-blockade/.

[20] Why Yemen Matters, supranote 2.

[21] Id.at 14.

Posted in DJILP Online, DJILP Staff, Featured Articles, Payton MartinezComments (0)

Garza post image

US/Somalia: Allegations of International Law Violations

Garza post imageThe majority of States, including the U.S., are bound by the Geneva Conventions of 1949 which requires member states to treat persons not engaged in hostilities humanely.[1] The convention further prohibits “violence to the life and person [not engaged in hostilities], in particular murder of all kinds, mutilation, cruel treatment and torture.”[2] International Humanitarian Law (IHL) is based on the Geneva Conventions of 1949 and subsequent agreements among states.[3] IHL governs the relations between States during times of conflict with the intention to limit its effects and aims to protect civilians or persons no longer engaged hostilities from harm during times of armed conflict.[4]

In 2011, the United States began launching limited air strikes against “high value targets” in areas of Somalia that were largely controlled by Al-Shabaab, an armed terrorist group associated with Al’Qa’ida.[5] The limited attacks were initially justified by the global war against Al’Qa’ida and then, in 2016, the attacks were justified by operations conducted by the African Union Mission in Somalia, a peace enforcement force authorized by the United Nations and the African Union.[6] The 2013 Presidential Policy Guidance (PPG) provided detailed procedures for counterterrorist actions, including lethal actions against terrorist targets.[7] The PPG only permitted direct action against an “identified high-value terrorist” in “ . . . extra-ordinary circumstances . . . when there [was] near certainty that the individual being targeted [was] in fact the lawful target and located at the place where the action will occur” and direct action would only be takin if “ . . . the action [could] be taken without injuring or killing non-combatants.”[8] The policy was also limited by international legal principles, including State Sovereignty and the “laws of war.”[9] From 2013 to 2016, twenty nine targeted air strikes were reported in Somalia.[10]

In March 2017, the restrictions regarding the use of force against terrorist targets set forth in the 2013 PPG were superseded by an undisclosed directive issued by President Donald Trump.[11] The new directive designates parts of Somalia as “area[s] of active hostility” and “reportedly gives U.S. forces the greatest latitude to carry out strikes as is allowable under the U.S.A.’s interpretation of IHL.”[12] Since the signing of the new directive, the number of air strikes has increased dramatically. Between 2017 and 2018, there were a total of eighty air strikes conducted targeting “areas of active hostility,” Thirty five strikes and forty five strikes respectively.[13] In June 2018, the Department of Defense issued a statement confirming there were zero civilian deaths resulting from military operations in Somalia.[14] The United States African Command (AFRICOM) also continues to deny any civilian deaths as a result of its military operations.[15] When asked about the procedures to avoid civilian deaths and how the organization confirms civilian deaths, AFRICOM refused to comment on their surveillance and intelligence measures.[16] Reporters could only confirm that AFRICOM officials fly over the attacked area to evaluate the damage.[17] Furthermore, the Somali government is unable to investigate civilian causalities because the military lacks the resources to complete these investigations.[18] Somali’s affected by the strikes are also limited in their ability to report injuries or deaths in their communities because of the location of the attacks and security risks.[19]

The lack of transparency from the U.S. executive branch and AFRICOM has led independent organizations to complete private investigations into the damage caused by the ever-increasing air strikes. A recent investigation conducted by Amnesty International revealed a minimum of fourteen civilian deaths and a minimum of eight civilian injuries, which resulted from only five out of the more than 100 airstrikes completed since the beginning of 2017.[20] It is logical to conclude that the death toll and injuries are far greater than reported by Amnesty International because of the increasing number of strikes completed in the past two years. The U.S.’s failure to be transparent in its use of lethal force in Somalia has raised valid accusations of violations of IHL and the Geneva Conventions of 1949. Many human rights groups have urged the U.S. to complete transparent investigations into the credible allegations of civilian casualties resulting from military actions in Somalia.[21] Only when the U.S. government acknowledges the harm they have caused to the civilians of Somalia, can those victims pursue justice for the U.S.’s alleged violations of the Geneva Conventions of 1949 and IHL.[22]

________________________________________________________________________

Brittany Garza is a 2L law student at University of Denver Sturm College of Law and staff editor on the Denver Journal of International Law and Policy.

________________________________________________________________________

[1] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 85, 86.

[2] Id. at 87.

[3] Int’l Comm. of the Red Cross, What is International Humanitarian Law? 1 (2004), https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf.

[4] Id.

[5] Amnesty Int’l, The Hidden U.S. War in Somalia: Civilian Casualties From Air Strikes in Lower Shabelle 6 (2019), https://www.amnesty.org/download/Documents/AFR5299522019ENGLISH.PDF.

[6] Id.

[7] Exec. Office of the President, Procedures For Approving Direct Action Against Terrorist Targets

Located Outside the United States and Areas of Active Hostilities (2013), https://www.justice.gov/oip/foia-library/procedures_for_approving_direct_action_against_terrorist_targets/download.

[8] Id.

[9] Id.

[10] Amanda Sperber, Inside the Secretive US Air Campaign in Somalia, The Nation (Feb. 7, 2019), https://www.thenation.com/article/somalia-secret-air-campaign/.

[11] Amnesty Int’l, supra note 5, at 7.

[12] Id.

[13] Sperber, supra note 10.

[14] Amnesty Int’l, supra note 5, at 7.

[15] USA/Somalia: Shroud of Secrecy Around Civilian Deaths Masks Possible War Crimes, Amnesty Int’l (Mar. 20, 2019), https://www.amnesty.org/en/latest/news/2019/03/usa-somalia-shroud-of-secrecy-around-civilian-deaths-masks-possible-war-crimes/ [hereinafter USA/Somalia].

[16] Sperber, supra note 10.

[17] Id.

[18] Id.

[19] USA/Somalia, supra note 15.

[20] Id.

[21] Amnesty Int’l, supra note 5, at 9; Eyder Peralta, U.S. Airstrikes in Somalia May Amount to War Crimes, Says Rights Group, NPR (Mar. 20, 2019), https://www.npr.org/2019/03/20/705090399/u-s-airstrikes-in-somalia-may-amount-to-war-crimes-says-rights-group.

[22] Id.

Posted in Brittany Garza, DJILP Online, DJILP Staff, Featured ArticlesComments (0)

University of Denver Sturm College of Law
Resources