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Is less more? Settlement Agreements in the Fight Against Bribery of Foreign Public Officials

OECD Anti-Bribery Ministerial Meeting

The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions[1] (the Convention) will celebrate its 20th anniversary at the end of this year. There is a consensus that the Convention has achieved an important change in the way that foreign corruption is perceived. Bribery is no longer seen as “business as usual” and there is a “higher level of consciousness on the part of the media and public opinion.”[2] It has also been successful making countries equip themselves with rules against international bribery. Perhaps one of the most important examples is how the Convention served as a catalyst for the adoption and refinement of systems of liability of legal persons.[3]While research conducted in 2014 by the OECD shows that “enforcement of anti-bribery laws has drastically increased since the entry into force of the Convention,”[4] more skeptic voices point out that active investigation and prosecution is weak or completely inexistent in most of the countries[5]. Recent developments show that more and more countries have introduced settlement procedures into their legal systems that allow the public prosecutor and the investigated company to reach an agreement and suspend charges provided that the company accepts a series of terms. These procedures have been used to resolve some of the most important enforcement actions not only in the United States but also in other jurisdictions, including in countries seen as weak performers under the Convention.

This subject raises various interesting questions related to the reasons, limits, and necessary safeguards that are inherent to negotiated settlements in bribery allegations. After providing background information on the way the Convention and related instruments operate, this article will discuss how more and more countries are introducing and using settlement procedures. The possible reasons will be analyzed as well as the main critiques. Finally, the article will discuss necessary safeguards to assure credibility, legitimacy and effectiveness of these proceedings.

Background

The Convention was signed in December 1997 and has been ratified by all 35 OECD member countries and 8 non-OECD countries.[6] Since then, several other international anti-bribery instruments and initiatives have been adopted,[7] but the Convention retains unique features including that it (1) specifically targets the “supply side” of bribes and, therefore, targets the behavior of companies that do business abroad and (2) established a control mechanism which seeks to monitor implementation efforts by member countries in a strict, comprehensive, and systematic way using mutual evaluation and peer pressure to induce compliance. The body that carries out the monitoring is the OECD Working Group on Bribery (the Working Group), a group composed of representatives from State Parties to the Convention. Today, the Working Group controls not only the implementation of the Convention but also compliance with the 2009 Anti-Bribery Recommendation (the Recommendation) and the Good Practice Guidance on Internal Controls, Ethics and Compliance,[8] two soft law instruments that were added to the body of OECD anti-bribery “rules.” In order to comply with the Convention, countries have to, first, adopt a robust regulatory system criminalizing foreign bribery, and second, equip themselves with the willingness and means to implement that system.

Research shows that over two-thirds of foreign bribery cases are settled out of court.[9] However, until 2014 only six member countries had concluded foreign bribery cases using settlement procedures.[10] In the U.S., these procedures usually take the form of a deferred prosecution agreement (DPA) or a non-prosecution agreement (NPA). Appellations, requirements, and procedures vary between countries but the principle is the same: give enforcement authorities and private entities or individuals the possibility to reach an agreement and avoid prosecution.

Neither the Convention nor the Recommendation require parties to set up settlement procedures. Participation of member countries in the Working Group gives them the opportunity to take part in the examination of systems established in other countries and in discussions on best practices. Important events in the last year show how more and more countries are deciding to follow the example of their peers and adopt settlement procedures.

More countries are adopting settlement procedures

In August 2013 Brazil introduced the possibility of an out-of-court settlement called a “leniency agreement”[11] and the UK introduced DPAs into its legal system on 24 February 2014[12]. Since its introduction, it has been used three times to resolve bribery investigations. It’s most recent and probably most important settlement occurred in the Rolls-Royce case. With a total combined monetary sanction of $800 million,[13] the case entered into the list of the top five global foreign bribery enforcement actions. The company was under investigation in three jurisdictions, the U.S., the UK and Brazil, for conduct that occurred in several countries over decades. Additionally, on December 9, 2016, France adopted the “Loi Sapin II” that established the possibility of a “Public Interest Judicial Agreement,”[14] a settlement procedure very similar to the American DPA[15]. Finally, recent events in Argentina offer another interesting example.

In March 2017, the Working Group urged Argentina to comply with the Convention. In fact, Argentina has not yet established corporate legal liability and cannot, therefore, prosecute companies when foreign bribery allegations arise.[16] The draft bill on corporate criminal liability (the draft bill) was high on the political agenda, and the executive power transferred it to the legislative power for an opinion and possible amendments. In the meantime, the discovery of Odebrecht’s bribery scheme that touched 15 countries around the globe had deep effects, especially, in Latin America.[17] In June 2017, Argentina’s legislative body issued amendments to the draft bill introducing Section 37, which allows for “administrative collaboration agreements to be executed for events taking place prior to the enactment of the law.”[18] The bill not only introduces the possibility of a settlement procedure, but this procedure can be applied retroactively.

The retroactive application of law, especially in criminal matters, is usually exceptional. One cannot be held liable for something that was not considered illegal at the time the act was committed. A possible exception to this principle is when the law is more favorable to the prosecuted party.[19] The order of events that lead to the proposed amendments of Argentina’s legislative body gives the appearance that the possibility to apply Section 37 retroactively was introduced for the sole purpose of giving Odebrecht the opportunity to settle with the Argentinian authorities. This leads us to consider the adequacy of settlement procedures as a possible outcome of bribery investigations.

The pros and cons of settlement procedures in foreign bribery cases

Corporate structures and bribery schemes are becoming increasingly complicated and sophisticated. Settlement procedures, because they are of a voluntary nature instead of a punitive and imposed nature, have various advantages for public authorities as well as for the investigated companies. The prosecutor bears no burden of proof. Rather, the company must be willing to cooperate with the investigation and provide all necessary information, thus not only reducing important costs but also providing the authorities with crucial information that it might not obtain otherwise. A company’s reputation might be less affected by a settlement agreement than by a formal judicial conviction because, amongst other factors, the company only need agree to a set of facts and terms without having to accept actual culpability to conclude the settlement. In the same line, considering different legal traditions, a settlement agreement could have more success in countries that put more weight on individual criminal sanctions over corporate criminal sanctions.[20] However, the most important advantage for companies is likely that “[t]here is no set list of terms, and one of the attractions of DPAs is that bespoke terms can be created to suit a particular case, in a way that is not possible when a corporate is sentenced after a conviction.”[21] Because a settlement procedure is negotiated, a company could demand, for example, that it will not be barred from future public tenders or contracts already won.[22]

However, several critiques have emerged, concerning mainly two points. The first one is related to the non-criminalizing nature of settlement agreements. It is argued that criminal prosecution, not negotiation, is the adequate procedure to sanction important criminal acts committed by companies.[23] The second concerns the procedure itself. Because there is no actual judicial procedure and the negotiations are made between the prosecutor and the companies, the settlement may appear uncertain, illegitimate, and non-transparent.[24] Additionally, because bargaining power can vary greatly between companies the results of the agreements can also appear to unfairly favor big corporations.

As explained above, the majority of foreign bribery cases are concluded with a settlement agreement. Recent events exposed suggest a probable increase in this trend. The U.S. Department of Justice has even introduced a new “Pilot Program” [25] (the Pilot Program), which includes a whole new category of enforcement action, declination with disgorgement. This action is a highly simplified agreement. It can be used only when the company has voluntarily self-disclosed the acts committed and the investigations are closed without imposition of penalties despite violations of the Foreign Corrupt Practice Act. However, the company must agree to fully cooperate with the investigation, timely remediate the violations, and disgorge all profits made from the bribery.

Settlement procedures will therefore not only be more numerous, but it seems that new simplified forms might emerge. The Argentinian example shows, however, the important bargaining power that a corporation holds. This power has a stronger hold when it comes to settlement procedures in comparison to judicial procedures. It is thus vital that safeguards are installed and respected in order for the system to remain legitimate and effective.

Necessary Safeguards

In order to preserve justice and effectiveness, countries must ensure that the system is applied in a uniform way and that whatever enforcement actions public authorities use, those actions will deter companies from reiterating or committing acts of bribery. To that end, what matters is really what the company has to lose. If monetary and other forms of penalties under settlement agreements are higher than the benefits that the companies earn from corrupt transactions, then it is a deterrent enough. However, information about settlement procedures needs to be detailed and available in order to control for uniformity and effectiveness. The Working Group recommends that settlements should “respect the principle of due process, transparency and consistency […] the outcome of settlement negotiations should be made public, where appropriate and in conformity with the applicable law, especially the reasons why the settlement was appropriate, the basic facts of the case, the legal or natural persons sanctioned, the sanctions agreed, and the terms of the agreement.”[26] It seems that countries are on their way to adopting more detailed guidelines, principles, and sometimes rules to help inform prosecutors when they are concluding settlements.[27] However, guidelines are not binding upon prosecutors. In some countries, judges need to approve the settlement but this is not always systematic.

The Working Group, NGOs active in the anti-bribery sector, and the general public must not lose sight of these aspects and monitor closely the developments in this area in order to ensure that what has been accomplished by the existence of the Convention in the last 20 years will not be undermined by obscure procedures that can result in fake compliance.

 

Samantha Bloch is a LLM student at the University of Denver Sturm College of Law and a staff editor on the Denver Journal of International Law and Policy.

_______________________________________________________________________________________________________________________________________

[1] Convention on Combating Bribery of Foreign Public Official in International Business Transactions, Dec. 17, 1997, 37 I.L.M. 1 (entered into force Feb. 15, 1999).

[2] Nicola Bonucci & Patrick Moulette, The OECD Anti-Bribery Convention 10 Years on, Oecd Observer (Dec. 2007- Jan. 2008), http://oecdobserver.org/news/archivestory.php/aid/2475/The_OECD_Anti-Bribery_Convention_10_years_on.html.

[3] Org. for Econ. Co-operation and Dev. [OECD], The Liability of Legal Persons for Foreign Bribery: A Stocktaking Report, at 13, (Dec. 9, 2016), http://www.oecd.org/daf/anti-bribery/liability-of-legal-persons-for-foreign-bribery-stocktaking-report.htm.

[4] OECD, OECD Foreign Bribery Report: An Analysis of the Crime of Bribery of Foreign Public Officials, at 7, (Dec. 2, 2014), http://www.oecd.org/corruption/oecd-foreign-bribery-report-9789264226616-en.htm
http://dx.doi.org/10.1787/9789264226616-en [hereinafter OECD Foreign Bribery Report].

[5] Transparency Int’l, Exporting Corruption Progress Report 2015: Assessing Enforcement of the OECD Convention on Combating Foreign Bribery, at 7, (Aug. 20, 2015), https://www.transparency.org/whatwedo/publication/exporting_corruption_progress_report_2015_assessing_enforcement_of_the_oecd.

[6] Oecd, OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, http://www.oecd.org/corruption/oecdantibriberyconvention.htm (last visited Sep. 8, 2017).

[7] See, e.g., United Nations Convention Against Corruption, adopted Oct. 31, 2003, 2349 U.N.T.S. 41 (entered into force Dec. 14, 2005); The Wbg and the United Nations Office on Drugs and Crime [UNDOC], Stolen Asset Recovery Initiative, G20 Anti-Corruption Working Group, https://star.worldbank.org/star/about-us/g20-anti-corruption-working-group(last visited Sep. 10, 2017).

[8] OECD, Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions (With Amendments Adopted by Council 18 February 2010 to Reflect the Inclusion of Annex II, Good Practice Guidance on Internal Controls, Ethics and Compliance) (Nov.25, 2009), http://www.oecd.org/corruption/oecdantibriberyconvention.htm.

[9] OECD Foreign Bribery Report, supra note 4, at 19.

[10] Id. at 20.

[11] Felipe Rocha dos Santos, Felipe Rocha dos Santos: New Guidance for Brazil Anti-Corruption Settlements, The Fcpa Blog (Sep. 7, 2017, 7:18 AM), http://www.fcpablog.com/blog/2017/9/7/felipe-rocha-dos-santos-new-guidance-for-brazil-anti-corrupt.html.

[12] Serious Froud Office, Deferred Prosecution Agreements, https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/deferred-prosecution-agreements/.

[13] Press Release, U.S. Dep’t of Just., Rolls-Royce Plc Agrees to Pay $170 Million Criminal Penalty to Resolve Foreign Corrupt Practices Act Case- Company Agrees to $800 Million Global Resolution with Authorities in the Unites States, The United Kingdom and Brazil, DOJ Press Release 17-074 (Jan 17, 2017), https://www.justice.gov/opa/pr/rolls-royce-plc-agrees-pay-170-million-criminal-penalty-resolve-foreign-corrupt-practices-act.

[14] Cyrille Mayoux, Loi Sapin II: Le Nouvel Arsenal Répressif, Uggc Avocats (Feb. 14, 2017), https://www.uggc.com/2017/02/14/loi-sapin-ii-nouvel-arsenal-repressif/, (Called in French a “convention judiciaire d’intérêt public”, translated by us).

[15] Stephanie Faber, New French Anti-Corruption Law “Sapin II”, The Anticorruption Blog (Jan. 4, 2017), http://www.anticorruptionblog.com/france/new-french-anti-corruption-law-sapin-ii/.

[16]Press Release, OECD, Argentina Must Urgently Enact Corporate Liability Bill to Rectify Serious Non-Compliance with Anti-Bribery Convention (Mar.24, 2017), http://www.oecd.org/corruption/argentina-must-urgently-enact-corporate-liability-bill-to-rectify-serious-non-compliance-with-anti-bribery-convention.htm.

[17] Michael Griffiths, The Odebrecht Fact Sheet, Global Investigations Rev. (Apr. 18, 2017), http://globalinvestigationsreview.com/article/1129308/the-odebrecht-fact-sheet.

[18] Baker McKenzie, Draft Bill- Corporate Criminal Liability, Lexology (June 21, 2017), https://www.lexology.com/library/detail.aspx?g=487a884e-d97a-4fba-b795-c3e7f6d5d5f1.

[19] Editors, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U. Pa. L. Rev. 120, 120 (1972).

[20] Bonucci & Moulette, supra note 2.

[21] Ben Morgan, Joint Head of Bribery and Corruption, Serious Froud Office, Speech at a Seminar for General Counsel and Compliance Counsel from Corporates and Financial Institutions Held at Norton Rose Fulbright LLP, https://www.sfo.gov.uk/2017/03/08/the-future-of-deferred-prosecution-agreements-after-rolls-royce/.

[22] https://www.reuters.com/article/us-argentina-odebrecht/argentina-bans-brazils-odebrecht-from-new-projects-for-12-months-idUSKBN19O2JV.

[23] Ben Morgan, supra note 21.

[24]Rocha dos Santos, supra note 11.

[25] Dep’t of Just, Crim. Division, The Fraud Section’s Foreign Corrupt Practices Act Enforcement Plan and Guidance (April 5,2016), https://www.justice.gov/criminal-fraud/pilot-program.

[26] OECD Foreign Bribery Report, supra note 4, at 20.

[27] See, e.g., Rocha dos Santos, supra note 11; Serious Froud Office, supra note 12; U.S. Dep’t of Just, Crim. Division, The Fraud Section’s Foreign Corrupt Practices Act Enforcement Plan and Guidance (April 5,2016), https://www.justice.gov/criminal-fraud/pilot-program.

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The Impact of Drug Enforcement Policies on Transnational Organized Crime in Latin America: A Case Study

Photo Credit: AP

“For illicit drugs, organized crime is sine qua non. In other words, organized crime can exist without drug trafficking, but illicit drugs cannot live without organized crime.”[1] This quote illustrates the long standing and infamously mutually beneficial relationship between organized crime and illicit drug trafficking. While the public threat of this relationship is long recognized and well understood, the solution is far less clear-cut. While the majority of the international community has stood with the consensus of prohibition and enforcement, in recent years countries have begun to reexamine this approach for a variety of reasons. [2] Proponents of replacing prohibition with regulation have cited a variety of social issues to support their arguments, such as limiting violence from criminal organization and reducing illicit drug use.[3] This article will briefly survey the relationship between drug trafficking and modern organized crime and the modern controlling international law on illicit drugs. Then, the article will examine the effect, if any, of two different styles of drug laws on combatting organized crime through Uruguay’s landmark policy of marijuana decriminalization and Mexico’s hard-lined approach to drug enforcement and organized crime.

Modern Organized Crime and the Illicit Drug Market

The United Nations Convention against Transnational Organized Crime defines organized crime, as “a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit…” [4] The very nature of transnational illicit drug trafficking, which typically involves multiple actors committing drug trafficking offenses over a period of time, motivated by financial gain, results in the majority of drug trafficking groups fitting into the U.N.’s definition of organized crime.

Given the profit-driven focus of most drug traffickers, the illicit drug trade is often seen as the most lucrative activity.[5] This high profitability is attributed largely to the nature of drug consumption; unlike firearms, gems, or even human beings, drugs are constantly consumed and are hence in need of continuous supply renewal.[6] In fact, in 2014, between one third to one fifth of all revenue attributed to transnational organized crime groups was estimated to have been from drug sales.[7]

Modern organized crime has continued to evolve and shift in form and function to both survive increased efforts by law enforcement while harnessing new technology to expand drug markets and increase trafficking efficiency.[8] Recent statistics show that many criminal organizations have started to move away from the traditional rigid hierarchical organizational model, to looser “horizontal” networks, in response to efforts of law enforcement to remove key individuals and disrupt the organizational hierarchy.[9] This reorganization has allowed these groups to quickly restructure when individuals have been detained.[10] The adaptation has continued to increase across organizations. Currently thirty to forty percent of criminal organizations identified in 2017 were made up of loose criminal networks.[11] Furthermore, transnational criminal organizations have utilized advances in communication technology, transportation, and even the dark web to expand their ability to smuggle larger quantities of illegal drugs, making it more difficult for law enforcement to detect and disrupt these activities.[12]

Current International Drug Laws

For over 100 years, the international community has formally recognized and condemned the use of certain drugs. The 1912 Hague International Opium Convention became the first official international effort to control drug use and illicit drug trade.[13] Since then, several multilateral treaties have taken this idea and expanded its scope well beyond opium. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which currently includes 189 parties and eighty seven signatories,[14] focuses primarily on developing a strategy to combat transnational organized crime by creating mandates for member states to mitigate and disrupt the international drug trade.[15] The Convention requires signatories to take steps to eliminate demand within their respective countries for illegal drugs and other psychotropic substances.[16] To fulfill these objectives, the treaty maintains that member states should take steps to implement domestic criminal laws outlawing “possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption.”[17]

Mexico: A Policy of Prohibition

Mexico first outlawed marijuana use in 1920, seventeen years before the United States.[18] Over the last few decades, Mexico, in response to the well published rise in organized crime, has taken several different approaches towards marijuana and drug trafficking to curb cartel operations. During the reign of President Felipe Calderon, from 2009- 2012, the Mexican government took a strong approach to prohibition enforcement, targeting high level organization members, increasing drug interdiction at the U.S./Mexico border, and utilizing the Mexican army to combat criminal activities.[19] This led to an explosion in drug related killings, from 1,080 in 2001 to 6,587 in 2009.[20] Some experts attribute this spike to the increased interdiction efforts, saying that removing powerful organizational leaders creates a power vacuum that results in infighting, encroachment by rival organizations, and organizational splintering.[21]

In response to this spike in gang-related violence, Mexico has taken surprising steps towards relaxing their drug laws and reforming their criminal justice system. In 2009, Mexico passed a law legalizing the possession of small amounts of drugs, including 5 grams of marijuana.[22] This appears to have had minimal immediate effect on the illegal drug trade; in 2010 the FBI reported Mexico as the number one importer of marijuana into the U.S.[23] In 2015, the Mexican supreme court handed down a landmark decision in marijuana legalization, ruling that it is the right of individuals to grow and use cannabis for personal recreational use.[24] While this has not overruled the black letter law of the country, it is seen by many as a significant step towards legalization. In April 2016, in response to both the 2015 supreme court ruling and increasing disenchantment of the population towards the ongoing violence from the cartel wars, President Enrique Pena Nieto sent a proposal to the Mexican congress calling for an increase to the allowance of personal possession of marijuana from 5 grams to 28 grams.[25]

While these measures seemed promising, with homicide rates declining from 2013-2014, the homicide rate again exploded. 2016 saw an estimated 7,000-11,000 homicides (25-40% of the nationwide total) attributed to organized crime.[26] The steps taken towards marijuana legalization were named as a reason for this upswing, due in part to organized crime changing their focus from trafficking marijuana to harder drugs such as cocaine and heroin.[27]

Uruguay: Leading Latin America towards Marijuana Legalization

On December 24, 2013, Uruguay passed a law legalizing the purchase, possession, and growing of small to moderate quantities of marijuana.[28] The law allows registered users to buy up to 40 grams of marijuana a month from licensed dealers, registered growers to keep up to six plants; and “cannabis clubs” of up to 45 members to cultivate as many as 99 plants.[29] When the bill was first introduced in 2012, supporters of the bill cited both promotion of public health and reduction of organized crime among the top reasons for the supporting of the initiative.[30]

This law has been met with limited success since its inception. The price for legal marijuana undercut its illegal counterpart sold on the street, resulting in the drastic drop in price of “black market” marijuana.[31] As of 2011, 66% of all marijuana users reported they were still purchasing their marijuana from illegal dealers.[32] Despite assurances from independent sources and officials that the illegal drug market will subside over time,[33] there has been a recent increase in organized crime activity in the county. In the past several years, the number of foreign organized crime group members arrested in Uruguay rose.[34] Officials believe that this is because of recent intensified international efforts to limit Pacific drug smuggling routes, which shifted these routes to the Atlantic.[35] This triggered fear among Uruguayan officials that the country would subsequently then be used as a primary “springboard” for drug trafficking from the Americas to Europe.[36] Recent statistics seem to support this fear. In 1999, only ten kilograms of illegal cocaine were sized in the country; in 2013, this exploded into over one ton of the drug being seized.[37] The annual homicide rate for Uruguay, which historically has been astonishingly low at around 180 homicides per year, nearly doubled to 289 in 2015.[38] Finally, officials have reported that the style of killings has likewise changed drastically, with the majority of the recent murders bearing the signature of organized crime: daylight assassinations and execution style killings.[39]

Conclusion & Recommendations

The evidence discussed here supports a variety of conclusions and recommendations. First, due to the evolving nature of organized crime via loose organizational structures, advanced technologies, diversified drug trade, and global markets, legalization of only one drug within one country has a minimal impact on transnational organized crime. Additionally, policies of pure prohibition backed by hard-lined enforcement techniques do little except increase violence amongst organized criminal groups. This evidence suggests that to be effective, decriminalization needs to be on a global scale followed up with targeted enforcement. Decriminalization not only limits income sources to drug traffickers, it also frees up valuable law enforcement resources to concentrate on combatting other profit sources for organized crime. Finally, the requirements in the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances should be adjusted to allow for member states to include legalization and decriminalization policies as part of their plan to eliminate the demand for illegal drugs. Implementing these lessons learned from Uruguay and Mexico will allow nations across the world to take a collective step at eliminating transnational criminal organizations.

 

Christopher Barbera is a 2L at the University of Denver Sturm College of Law and a staff editor on the Denver Journal of International Law and Policy.

______________________________________________________________________________________________________________________________________

[1] Engin Dumagol, The Role of Drugs in Terrorism and Organized Crime, 2 Ankara B. Rev. 46, 61 (2009), http://www.ankarabarosu.org.tr/siteler/AnkaraBarReview/tekmakale/2009-2/6.pdf.

[2] Dan web, et el, Effect of Drug Law Enforcement on Drug-Related Violence: Evidence from a Scientific Review 56-57 (2010), http://www.countthecosts.org/sites/default/ICSDP-1%20-%20FINAL.pdf.

[3] Id. at 20

[4] United Nations Office of Drugs and Crime, World Drug Report 2007, 170 (United Nations Publication Sales No. E. 07.XI.5 ISBN 978-92-1-148222-5.N).

[5] Dumagol, supra note 1, at 54.

[6] Dan Web, et el, supra note 2, at 58.

[7] United Nations Office on Drugs and Crime, World Drug Report 2017, 9 (ISBN: 978-92-1-148291-1, eISBN: 978-92-1-060623-3, United Nations publication, Sales No. E.17.XI.6).

[8] Id. at 16.

[9] Id.

[10] Id.

[11] Id. (citing European Union Serious and Organised Crime Threat Assessment 2017, Europol, at 14 (2017), https://www.europol.europa.eu/activities-services/main-reports/european-union-serious-and-organised-crime-threat-assessment-2017.

[12] Id. at 16-17.

[13] U.N. Office on Drug and Crime, The 1912 Hague International Opium Convention, https://www.unodc.org/unodc/en/frontpage/the-1912-hague-international-opium-convention.html.

[14] Status of United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, United Nations Treaty Collection (Sep. 10, 2017, 7:30 AM), https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI-19&chapter=6&clang=_en.

[15] United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances [hereinafter The Convention], art. 2, Dec. 20, 1988, 28 I.L.M. 493.

[16] The Convention, supra note 15, at 495.

[17] The Convention, supra note 15, at 494.

[18] Matt Thompson, The Mysterious History of ‘Marijuana,NPR (July 22, 2013, 11:46 AM), http://www.npr.org/sections/codeswitch/2013/07/14/201981025/the-mysterious-history-of-marijuana.

[19] David A. Shirk, Drug Violence in Mexico: Data and Analysis from 2001-2009 3, 9 (2010) https://justiceinmexico.org/wp-content/uploads/2014/09/2010_DVM.pdf.

[20] Id. at 9.

[21] Kimerly Heinle , Cory Molzahn & David A. Shirk, Drug Violence in Mexico: Data and Analysis through 2014 (2015) https://justiceinmexico.org/wp-content/uploads/2015/04/2015-Drug-Violence-in-Mexico-final.pdf.

[22] Ionn Grillp, Mexico’s Drug Law May Set an Example, Time (Aug. 26, 2009), http://content.time.com/time/world/article/0,8599,1918725,00.html.

[23] Drug Trafficking Violence in Mexico: Implications for the United States: Before the U.S. Senate Caucus on International Narcotics Control, 111th Cong., (2010) (statement of Kevin L. Perkins and Anthony P. Placido, Assistant Director, Criminal Investigative Division and Assistant Administrator for Intelligence Drug Enforcement Agency, Federal Bureau of Investigation), https://archives.fbi.gov/archives/news/testimony/drug-trafficking-violence-in-mexico-implications-for-the-united-states.

[24] Elizabeth Malkin & Azam Ahmed, Ruling in Mexico Sets in Motion Legal Marijuana, N.Y. Times, Nov. 23, 2015, https://www.nytimes.com/2015/11/05/world/americas/mexico-supreme-court-marijuana-ruling.html?_r=2.

[25] Mexico President Pena Nieto proposes relaxing marijuana laws, BBC News (Apr. 22, 2016), http://www.bbc.com/news/world-latin-america-36107947 (last visited Sep. 10, 2017).

[26] Kimberly Heinle, Octavio Rodríguez Ferreira & David A. Shirk, Drug Violence in Mexico: Data and Analysis Through 2016 2-3 (2017), https://justiceinmexico.org/wp-content/uploads/2017/03/2017_DrugViolenceinMexico.pdf.

[27] Id. at 46.

[28] John Walsh & Geoff Ramsey, Uruguay’s Drug Policy: Major Innovations, Major Challenges 7 (May 9, 2015), https://www.brookings.edu/wp-content/uploads/2016/07/Walsh-Uruguay-final.pdf.

[29] Id.

[30] Dario Klein, Catherine E. Shoichet & Rafael Romo, Uruguay to legalize marijuana, Senate says, CNN (Dec. 10, 2017 9:42 PM), http://www.cnn.com/2013/12/10/world/americas/uruguay-marijuana-legalization/index.html?iref=allsearch.

[31] Uruguay’s Year In Marijuana: 3 Successes, 3 Burning Questions, NBC News (Jan. 7, 2015), https://www.nbcnews.com/news/latino/uruguays-year-marijuana-3-successes-3-burning-questions-n281311.

[32] Guillermo G. Espinosa, Delays in Uruguay Marijuana Law Leave Door Ajar for Drug Trafficking, Insight Crime (Jan. 23, 2017), http://www.insightcrime.org/news-analysis/delay-marijuana-law-uruguay-leaves-door-ajar-drug-trafficking.

[33] Id.

[34] Michael Lohmuller, Is Uruguay the New Argentina of Drug Trafficking?, Insight Crime (May 23, 2016), http://www.insightcrime.org/news-briefs/is-uruguay-the-new-argentina-of-drug-trafficking.

[35] Gabriel Pereyra, Organized Crime is Here, El Observador Newspaper, May 23, 2016, http://www.elobservador.com.uy/el-crimen-organizado-ya-esta-aqui-n914361.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

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The EU Takes Ireland to Court: Understanding the Apple Tax Ruling and the Legal Ramifications of Ireland’s Failure to Act

Photo Credit: Josh Edelson/AFP/Getty Images

Photo Credit: Josh Edelson/AFP/Getty Images

In August 2016, the European Commission ruled that Ireland provided illegal state aid to the Irish subsidiaries of Apple, Inc. between 2003 and 2014, which amounted to approximately €13 billion. The Commission determined that Ireland’s illegal state aid took the form of “undue tax benefits” provided exclusively to Apple’s Irish subsidiaries: Apple Sales International (ASI) and Apple Operations Europe (AOE). Notably, ASI and AOE hold the rights to use Apple’s intellectual property to sell and manufacture Apple products outside North and South America under a cost-sharing agreement with Apple, Inc. The sales from such usage, nearly 60% of Apple’s total profits, are routed through these subsidiaries.

In 1991 and 2007, the Irish government issued two tax rulings that permitted Apple to artificially allocate the taxable profits of ASI and AOE. The method of determining Apple’s corporate tax liability in Ireland did not correspond with economic reality as almost all of the sales profits recorded by ASI and AOE were internally attributed to a “head office” that existed only on paper. The “head office” was not located in any state for tax purpose, it did not have any employees or operations, and it could not have possibly earned the sales profits that Ireland’s tax rulings permitted it to claim. Additionally, ASI and AOE sent yearly payments of approximately $2 billion to their parent corporation, Apple, Inc., for research and development (R&D) purposes. R&D payments are deductible expenses under Irish tax law, and so these amounts were not included in ASI or AOE’s annual taxable profits. As a result, Apple’s effective tax rate (ETR) in Ireland during the identified years amounted to 1% or less, compared with the statutory rate of 12.5%.

Under Article 107 of the Treaty on the Functioning of the European Union (TFEU), “any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings … shall, in so far as it affects trade between Member States, be incompatible with the internal market.” The EU Commission determined that Ireland’s tax rulings permitted Apple to artificially determine its tax liability in a manner that did not reflect economic reality. This gave Apple an undue advantage over competitors in the EU marketplace.

TFEU Article 108(2) provides that the Commission decision may direct the violating Member State to abolish such aid and practices and recover the illegal aid “within a period of time determined by the Commission.” Traditionally, the Commission provides the violating Member States with four months from the date the decision was issued to recover the specified amounts of illegal state aid. The recovery time must be speedy so that the corporation does not continue to receive further illegal state aid for a prolonged period. The deadline for Ireland to implement the Commission’s ruling and recover the €13 billion from ASI and AOE was January 3, 2017. Over a year has passed since the decision was issued and Ireland has not recovered a cent of the €13 billion. Ireland has, however, identified its methods of calculating the precise amount of illegal state aid owed, and it seeks to recover the full amount from Apple amount by March 2018. Despite both Ireland and Apple’s appeal from the Commission’s decision, the €13 billion still must be recovered. The disputed sum plus interest should be held by a third party in an escrow account until all appeals are finalized.

Ireland’s failure to recover the €13 billion in the time provided by the Commission constitutes a violation of Article 108 of the TFEU. As such, the Commission is permitted to bring the matter before the European Court of Justice (ECJ). Per TFEU Article 108(2), “if the State concerned does not comply with this decision within the prescribed time, the Commission … [may] refer the matter to the Court of Justice of the European Union direct.” The Commission did exactly that on October 4, 2017 when it moved to refer Ireland’s violations to the ECJ. EU rules provide that the Commission can first seek a declaratory ruling that Ireland failed to comply with the Commission’s decision. If Ireland still fails to recover the amount in dispute after an ECJ declaration, then the Commission may bring a second case that could result in fines.

The Commission’s recent referral of the Ireland-Apple decision to the ECJ has put pressure on the divided Irish government. Many politicians hope to maintain Ireland’s reputation for having a corporation-friendly tax system, which will continue to incentivize multinational companies to set up subsidiaries, branches, and offices in Ireland. This in turn, is beneficial for Irish citizens as it brings in new jobs and economic growth. Others argue, however, that the corporate taxation scheme favors rich, foreign companies to the disadvantage of Ireland’s poor. Recovering €13 billion in alleged illegal state aid would fully cover Ireland’s health services for one year and permit rampant infrastructure upgrades nationwide. The Apple tax ruling puts Ireland in hot water as it continues to lure in multinational corporations, attempts to comply with EU law, and seeks to appease the demands of its divided population. Until the ECJ issues its decision, however, Ireland certainly ought to continue collecting the alleged illegal state aid from Apple.

 

Rachel Ronca is a 3L Dual Degree student (JD and LLM in International Business Transactions) at the University of Denver Sturm College of Law. She is the Managing Editor on the Denver Journal of International Law and Policy for the 2017-2018 academic year.

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Applying an Unratified Treaty in U.S. Domestic Courts: A New Paradigm?

Photo Credit: Kelly Roberts

Photo Credit: Kelly Roberts

Judicial Implications of Treaty Ratification

On December 4, 2012, the United States Senate failed to ratify the United Nations Convention on the Rights of Persons with Disabilities (CRPD).[1] The vote was 61 to 38, lacking just five votes to pass the two-thirds threshold for ratification.[2] The ratification failed despite unanimous support from the Senate Foreign Relations Committee, bipartisan backing, and widespread support from veterans advocacy groups and over 800 disability rights organizations.[3] While the CRPD drafters used the Americans with Disabilities Act[4] as their foundational principles, the primary arguments against ratification focused on the possible effect of an international convention on U.S. laws.[5] Senator Mike Lee of Utah argued:

“First of all, whenever we ratify a treaty it becomes the law of the land under article VI of the U.S. Constitution. Secondly, whenever a body of law, whether embodied in U.N. convention or otherwise, becomes part of the corpus of customary international law, that often makes its way into U.S. judicial opinions. Is it direct? No. Does it directly undo any statute? No. But that doesn’t mean it has no effect. If it had no effect we would not be here debating it today. It is the type of effect we worry about.”[6]

In response, Senator John Kerry discounted Lee’s concern, emphasizing the lack of an enforcement mechanism for the convention.[7] Senator Kerry cited Supreme Court precedent stating that nonexecuting treaties do not “create obligations enforceable in Federal courts.” [8] He went on to emphasize the CRPD’s inability to create “recourse in American courts.”[9]

While the two senators were speaking at cross-purposes, they both were correct in their assessment of the convention’s limitations and potential impact. Senator Kerry’s response referenced the inability to obtain civil relief for complaints based on broad, nonexecuting international law.[10] But even the precedent in Sosa v. Alvarez-Machain Senator Kerry cited includes a lengthy concurring opinion penned by Justice Scalia questioning whether the Court’s decision sufficiently restricted the “discretionary power in the Federal Judiciary to create causes of action for the enforcement of international-law-based norms.”[11] After all, Justice Scalia argued, the lower courts had used their discretion to apply international law in the present suit, whose decision the Court had just reversed.[12] What was to prevent nonexecuting treaties from influencing courts to create common law the legislature never intended?[13]

International Human Rights Law and Local Courts

In fact, less than four weeks after ratification of the CRPD failed, a New York County Judge went even further than Justice Scalia had envisioned. In an order to terminate letters of guardianship, the Surrogate’s Court of New York’s decision cited extensively to the “persuasive weight” of the unratified CRPD in order to enforce a new model of guardianship: supported decision-making.[14] In the Matter of Dameris L., Judge Kristin Booth Glen argued, “This case presents the opportunity to reconcile an outmoded, constitutionally suspect statute … with the requirements of substantive due process and the internationally recognized human rights of persons with intellectual disabilities.”[15] The opinion addressed none of the political concerns raised by senators during the debate, such as expansion of abortion rights or the curtailment of homeschooling.[16] Instead, the opinion focused on the convention’s language expanding a person with disability’s “right to recognition everywhere as persons before the law,” and the legal implication of restrictive guardianship orders, which limit an individual’s ability to “enjoy legal capacity on an equal basis with others in all aspects of life.”[17] Article 12 of the CRPD expressly requires state parties to safeguard against unnecessary curtailment of an individual’s right to act on their own legal behalf.[18] This includes the right to make decisions regarding one’s own life.[19] The CRPD also requires state parties to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.”[20] The CRPD asserts that supported decision-making should take the place of substituted decision-making found in traditional guardianship orders, and it challenges the presumption that persons with mental disabilities lack the capacity to access their due process rights.

Through this lens of international human rights law, the Surrogate’s Court opinion called for an expansion of the least restrictive environment standard found in both state and federal statutes.[21] The opinion referenced a New York statute that encoded the “least restrictive form of intervention” for persons with mental disabilities, and New York State constitutional protections upholding due process as requiring “adherence to the principle of the least restrictive alternative.”[22] The court reasoned that state statutory regulations “must be read to include the requirement that guardianship is the least restrictive alternative to achieve the State’s goal of protecting a person with intellectual disabilities from harm connected to those disabilities.”[23] From these state statutory and common law understandings of how New York has approached due process for persons with disabilities in other legal environments, the court then applied the concept of least restrictive environment to guardianships and supported decision-making. Noting the extensive network of family and friends currently supporting Dameris, the court terminated the letters of guardianship granted to the petitioner’s mother and husband, instead recognizing them “as persons assisting and supporting her autonomy, not superseding it.”[24]

Since the Surrogate’s Court ruling on December 31, 2012, three other opinions in New York County courts have cited both to the CRPD in their own termination of excessive guardianship orders.[25] None of these decisions have yet been challenged or brought before the higher courts to rule on their constitutionality. For now, the common law of New York appears to be applying an international understanding of due process rights to American persons with disabilities, granting them access to legal autonomy through supported decision-making plans.

Enacting Legislation

The senate hearings and debates over ratification of the CRPD did not address lack of access to due process rights by persons with disabilities in America. The unchallenged assumption was that the United States already afforded persons with disabilities all the legal rights they could accrue. In a letter submitting the treaty to the Senate for consideration, President Barack Obama asserted that Americans with disabilities already enjoy every right proposed in the treaty.[26] Only one document pertaining to the CRPD even mentioned guardianship in passing.[27] In 2014, President Obama resubmitted the treaty for advice and consent, and the Senate Foreign Relations Committee again passed the measure out of committee and onto the full Senate.[28] The treaty was never brought to the Senate floor for debate. Throughout the debate over ratification, senators raised broad concerns over sovereignty, federalism and constitutional supremacy.[29] In counter, supporters asserted that ratification would give the United States a forum to expand broad rights already granted to U.S. citizens.[30] Left unquestioned by both sides of the debate, however, was the possibility that United States citizens themselves might benefit from principles established in the CRPD.

States, however, may decide to enact aspects of the CRPD on their own. One state legislator in North Carolina, Representative Jean Farmer-Butterfield, has brought forward a bill citing the CRPD in favor of supported decision-making.[31] Like the judicial opinion in the Matter of Dameris L., such a move in one state seems a small, tangential step towards ratification. Whether by statute or common law, however, these international human rights standards established in the CRPD are slowly finding their way to into state law, despite the Senate’s failure to ratify the convention. Perhaps if enough legislators and courts cite to the CRPD in their expansion of due process rights for persons with disabilities, opposition to the treaty will subside. Regardless, this expansion of due process ought to pique our curiosity about what other areas of American jurisprudence might be enhanced through the lens of international law.

 

Melody Joy Fields is a 1L at the University of Denver Sturm College of Law and a staff editor on the Denver Journal of International Law and Policy.

_____________________________________________________________________________________________________________________________________

[1] 158 Cong. Rec. S7365, 7379; United Nations Convention on the Rights of Persons with Disabilities art. 12, Dec. 13, 2006, 2515 U.N.T.S. 44910, hereinafter CRPD.

[2] Id.

[3] 160 Cong. Rec. S6278, see statement by Senator Tom Harkin: “Over 800 disability, civil rights, and faith groups, 20 top veterans organizations, and I mentioned the Chamber of Commerce and the Business Roundtable–all support this.”

[4] Americans with Disabilities Act of 1990, 42 U.S.C.§§ 12101–12213 (1990).

[5] See 158 Cong. Rec. S7369

[6] 158 Cong. Rec. S7369.

[7] Id.

[8] 158 Cong. Rec. S7369, quoting from Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).

[9] 158 Cong. Rec. S7372.

[10] See Sosa, 542 U.S. at 738.

[11] Sosa, 542 U.S. at 739.

[12] Sosa, 542 U.S. at 747-49.

[13] Id.

[14] Matter of Dameris L., 956 N.Y.S.2d 848, 855; CRPD art. 12, 2515 U.N.T.S. 44910 at 78.

[15] Matter of Dameris L. at 849.

[16] 158 Cong. Rec. S7369; 160 Cong. Rec. S4677.

[17] CRPD art. 12, 2515 U.N.T.S. 44910 at 78.

[18] Id.

[19] Id.

[20] Id.

[21] See Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1401 (2010).

[22] Matter of Dameris L. at 854, quoting the New York Mental Hygiene Law § 81.01; Matter of Kesselbrenner v. Anonymous, 305 NE2d 903 (1973); and Matter of Andrea B., 405 NYS2d 977 (1978).

[23] See IDEA, 20 U.S.C. § 1401 (2010); Matter of Dameris L. at 854.

[24] Matter of Dameris L. at 856.

[25] Matter of Leon, 43 N.Y.S.3d 769 (2016); Matter of Zhuo, 42 N.Y.S.3d 350 (2016); Matter of Michelle M., 41 N.Y.S.3d 719 (2016).

[26] Letter of Transmittal, 2007 U.S.T. LEXIS 179, 1.

[27] Luisa Blanchfield & Cynthia Brown, The United Nations Convention on the Rights of Persons with Disabilities: Issues in the U.S. Ratification Debate 10 (Congressional Research Service, January 21, 2015).

[28] Id. at 1.

[29] 158 Cong. Rec. S7372; 160 Cong. Rec. S4677; 160 Cong. Rec. S6278.

[30] 158 Cong. Rec. S7372; 160 Cong. Rec. S4677; 160 Cong. Rec. S6278.

[31] 2017 Bill Text NC H.B. 713.

 

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Politics over Peace: Waving Goodbye To UNESCO…Again

Photo Source: Christophe Petit Tesson—EPA/REX/Shutterstock

On October 12, 2017, the United States announced that it would withdraw from the United Nations Educational, Scientific and Cultural Organization (“UNESCO”) effective December 21, 2018.[1] The United States cited anti-Israel bias at UNESCO as a reason for the decision, similar to President Reagan’s decision to exit UNESCO in late 1983.[2] The recent decision proves a trend with United States involvement with UNESCO – that it views its purpose as purely political, serving its strategic vision of liberalizing trade and spreading Western thought. However, the view within the membership that UNESCO is a political tool may not be unique to the United States.[3] 

The first and original strategic vision when the United States and thirty-six other nations created UNESCO as a human rights organization promoting education, science and cultural causes in November 1945, was the effort to “de-nazify” Europe and write history books.[4] Second, UNESCO was used to combat Communism during the Cold War, but anti-western criticism led to the first withdrawal of the United States. One reason was because UNESCO was advocating a “new information order” as a means of countering the power of the Western media.[5]

Once the Cold War ended, the U.S. did not rejoin UNESCO until the need came about in the post-9/11 era.[6] President Bush stated that the “…organization has been reformed and America will participate fully in its mission to advance human rights, tolerance, and learning.”[7] On the point of the Reagan-era concerns, Bush also cited “dramatic reform of UNESCO’s management structure, and a new dedication to freedom of the press.”[8]

In 2011, President Obama drastically cut funding for UNESCO as reprisal for the acceptance of Palestine as a member.[9] These cuts directly resulted in our current debt to the organization surpassing $500 million – yet another reason for President Trump’s decision.[10] In 2016, Israel recalled its ambassador to UNESCO in protest after Arab nations secured support for a resolution denouncing Israel’s policies regarding religious sites in East Jerusalem and the West Bank.[11] This July, UNESCO declared the old city in Hebron a Palestinian World Heritage Site, contrary to Israel’s claim to all of Jerusalem, but consistent with Palestinians’ claims for a two-state solution.[12]

From a pure policy perspective, the United States may need to reconsider its exit from UNESCO because the best way to foster a stronger voting block is to work from within. Coupled with the increasing need for science and education to combat social media propaganda, the United States has compelling reasons to remain an active member. A contribution of roughly $500 million to UNESCO is very little for its $3.8 trillion annual expenditures.[13] The Denver Journal of Internal Law and Policy will continue to monitor the hyper-politicization of UNESCO.

 

Alex Mancero is a 2L JD candidate at the University of Denver Sturm College of Law and a staff editor for the Denver Journal of International Law and Policy.

_____________________________________________________________________________________________________________________________________

[1] The United States Withdraws From UNESCO, U.S. Department of State, http://www.state.gov/r/pa/prs/ps/2017/10/274748.htm (last visited Oct 26, 2017).

[2] Olivia B. Waxman, The U.S. Has Left UNESCO Before. Here’s Why Time, http://time.com/4980034/unesco-trump-us-leaving-history/ (last visited Oct 27, 2017).

[3] Israel recalls UNESCO ambassador in protest at Jerusalem resolutions, Reuters, October 26, 2016, https://www.reuters.com/article/us-israel-palestinians-unesco/israel-recalls-unesco-ambassador-in-protest-at-jerusalem-resolutions-idUSKCN12Q2HM (last visited Oct 27, 2017) (declaring UNESCO as hostile to Israelis because Arab members and their supporters frequently condemn Israel).

[4] Id.

[5] United States’ Return to UNESCO, 97 Am. J. Int’l L. 977, 978 (2003).

[6] Susan Tifft, Waving Goodbye to UNESCO, Time, http://content.time.com/time/magazine/article/0,9171,952288,00.html (last visited Oct 31, 2017).

[7] Address to the United Nations General Assembly in New York City, 38 Weekly Comp. Pres. Doc. 1529 (Sept. 16, 2002).

[8] United States’ Return to UNESCO, supra note 4, at 978.

[9] U.S. to Pull Out of UNESCO, Again, Foreign Policy, https://foreignpolicy.com/2017/10/11/u-s-to-pull-out-of-unesco-again/ (last visited Oct 27, 2017).

[10] Id.

[11] Israel recalls UNESCO ambassador in protest at Jerusalem resolutions, supra note 3.

[12][12] Id.

[13] Federal Spending: Where Does the Money Go National Priorities Project, National Priorities Project, https://www.nationalpriorities.org/budget-basics/federal-budget-101/spending/ (last visited Oct 31, 2017).

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North Korea: Nuclear Tests, Threats, & Missile Launches

“Perpetual peace is guaranteed by no less an authority than the great artist Nature herself.” – Immanuel Kant[1]

Source: South Korea’s Defense Ministry

Is there still hope for peace as North Korea advances its nuclear agenda? As the Second World War ended, the US and the Soviet Union divided Korea in half and the Korean War deepened the divide.[2] Today, North Korea is accelerating the development of its nuclear program.[3] Its motivation for testing is “rooted in a desire for political autonomy, national prestige and military strength.”[4] This article aims to answer: How does North Korea’s nuclear program work and what is involved in U.S. defense? How has the international community responded to North Korea’s tests and threats? What legal arguments can we make regarding North Korea’s recent actions? And should we proceed militarily or diplomatically?

A Recent Timeline

In July 2017, North Korea successfully tested an inter-continental ballistic missile (“ICBM”), which appeared capable of hitting Alaska and Hawaii.[5] Then, North Korea tested a missile capable of hitting California.[6] In response to these ballistic missile tests, the United Nations Security Council adopted sanctions against North Korea.[7]

By August, President Trump threatened North Korea with “fire and fury like the world has never seen.”[8] Kim Jong-un, North Korea’s leader, responded with a threat of an “enveloping fire” around Guam, an American territory in the Western Pacific.[9] Trump then claimed his “fire and fury” statement was not enough.[10] He further stated that if North Korea acts “unwisely,” the US military is “locked and loaded.”[11]

Although North Korea did not fire a missile over Guam, North Korea did conduct a ballistic missile test over the northern island of Hokkaido at the end of August.[12] In the first week of September, North Korea carried out its sixth nuclear test, which it claims is a hydrogen bomb that could be attached to an ICBM.[13] After the test, Nikki Haley, U.S. Ambassador to the United Nations told the Security Council, Kim Jong-un is “begging for war.”[14]

Addressing the U.N. General Assembly, President Trump vowed to “totally destroy North Korea” if it threatened the United States.[15] In a public statement responding to Trump, Mr. Kim vowed to take the “highest level of hardline countermeasure in history.”[16] President Trump told Secretary of State Tillerson that talking with North Korea is a waste of time.[17] Trump later emphasized, “only one thing will work.”[18] This October, North Korea’s deputy UN ambassador warned that the Korean Peninsula “has reached the touch-and-go point and a nuclear war may break out any moment.”[19]

A Breakdown of the North Korean ICBM and U.S. Interceptors

There are 4 main kinds of missiles: short range, medium range, intermediate, and ICBM.[20] For an ICBM to reach its desired destination, it needs to go beyond the atmosphere and then come back down.[21] North Korea’s second ICBM test appeared to have the potential to reach the West Coast, and potentially Denver and Chicago.[22] While North Korea’s main engine is its most reliable model to date, its main challenge is avoiding a burnt nuclear warhead before it hits the atmosphere.[23] To overcome that challenge, North Korea needs a reentry vehicle that acts like a shield.[24] However, manufacturing defects could cause the warhead to go off course.[25]

Nevertheless, the U.S. believes North Korea has created a warhead small enough to fit on the ICBM, ensuring a longer range.[26] Further, analysis reveals that North Korea’s latest underground nuclear test suggests a “two-stage thermonuclear” bomb larger than those dropped on Hiroshima and Nagasaki.[27] Nuclear weapons “depend on the splitting apart, or fission, of atoms for their explosive power.” That splitting apart is just the beginning for thermonuclear weapons.[28]

To intercept an ICBM, the U.S. would need censors to track the warheads, launchers to fire interceptors, and missiles that can destroy the warheads.[29] The U.S. has two main types of defense: theater, which is regional, and homeland defense.[30] The former involves Terminal High-Altitude Area Defense (THAAD) in Guam and South Korea along with 19 U.S. warships in the Pacific.[31] While these are good for short or medium range missiles, U.S. interceptors have not had a consistent success rate concerning target missiles.[32] When a nuclear warhead separates from a missile in space, it becomes difficult to distinguish it from debris or potential decoys.[33] Therefore, there is reason to worry about the interceptors used for U.S. homeland defense.

International Responses  

While most of the hope for North Korea to terminate its nuclear program by Trump and his predecessors has been in China, their hope is based on three unfounded assumptions. First, their hope assumes outside influence could persuade North Korea to abandon its nuclear weapons.[34] Second, China could exercise such an influence.[35] Third, China will influence North Korea once China is properly persuaded.[36]

What can China do? According to John Delury, a professor at Yonsei University in Seoul, China can keep decreasing its trade and investment relations with North Korea.[37] However, such actions will not break Kim Jong-un because “the North Korean system is especially good at…absorbing pain.”[38] Moreover, sanctions by China have either made little change or backfired, leading to embarrassment for China.[39] China is in a delicate position with the risk of war at its border, the arrival of American troops at its doorstep, and the flooding of North Korean refugees into its mainland.[40] At this point, China says it will close business joint ventures with North Korea, in line with the latest United Nations sanctions.[41]

Japan and South Korea have differing views on how to deal with North Korea. Japan’s Prime Minister Shinzo Abe deemed North Korea’s missile launch over Japan’s territory as “reckless” and a “serious and grave threat.”[42] Japan and the U.S. plan to work together to increase pressure on North Korea.[43] Meanwhile, South Korean President Moon Jae-in is firmly against a military strike on North Korea.[44] He argues that diplomacy and economic sanctions are the means to stop North Korea’s nuclear advancement.[45] Paik Hak-soon, a senior analyst at the Sejong Institute, a think tank south of Seoul, states that a nuclear South Korea is “politically untenable.”[46] While South Korea is afraid the North will use its nuclear program to divide the U.S. and its regional allies, the U.S. has signaled that South Korea is safe under their “nuclear umbrella.”[47]

Russia is at odds with Germany and France about sanctions on North Korea. Vladimir Putin is unconvinced of the effect of sanctions, claiming North Korea would “eat grass” before giving up their nuclear program.[48] However, the United States did manage to compromise with Russia before imposing the new set of sanctions on North Korea.[49] The sanctions limit crude and refined oil exports to North Korea, limit prohibited and refined petroleum sales, and ban all North Korean textile exports.[50]

German Chancellor Angela Merkel along with President Emannuel Macron of France put out a statement supporting stronger European Union sanctions against North Korea after its latest nuclear test.[51] Merkel is prepared to play a role in a diplomatic initiative, suggesting the Iran nuclear agreement could provide a model.[52] She emphasized, “A new arms race starting in the region would not be in anyone’s interests.”[53]

The Non-Proliferation Treaty

Non-Proliferation Treaty Objectives

The objective of the Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”) is to “prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy and to further the goal of achieving nuclear disarmament and general and complete disarmament.”[54] The NPT prohibits non-nuclear weapon state parties from developing nuclear weapons.[55] While the five de jure nuclear weapons states (France, China, Russia, United States, and United Kingdom) are exempted from this prohibition, Article VI requires them to eventually disarm.[56] While India, Israel, and Pakistan are considered de facto nuclear weapon states, they are not party to the NPT. Uniquely, North Korea withdrew from the NPT in 2003.[57] The question remains: did North Korea violate international law by withdrawing from the NPT?

Pacta Sunt Servanda

The first possibility is that North Korea violated the principle laid out in Article 26 of the Vienna Convention on the Law of Treaties (“VCLT”).[58] Article 26 requires states to carry out their international treaty obligations in good faith under the principle of pacta sunt servanda.[59] However, a state can only really be bound to an international treaty if it consents. North Korea has left the NPT, which could mean that it no longer consents to stop developing its nuclear program.

Procedure for NPT Withdrawal

The second possibility is that North Korea violated a procedural obligation of the NPT such as the obligation laid out in Article X.[60] States have a sovereign right to withdraw from the NPT.[61] However, for a State to withdraw, it must give three-months advance notice to all other parties to the Treaty and the UN Security Council.[62] The State must also include “a statement of extraordinary events it regards as having jeopardized its supreme interests” and requiring it to withdraw.[63] North Korea did put out a public statement of withdrawal noting, “[u]nder the grave situation where our state’s supreme interests are most seriously threatened, the D.P.R.K. government adopts the following decisions to protect the sovereignty of the country and the nation and their right to existence and dignity.”[64] Further, claims brought to the International Court of Justice (“ICJ”) are rarely brought on procedure alone. North Korea did mention in the statement that they had “no intention to produce nuclear weapons” or use nuclear energy beyond “peaceful purposes.”[65]

Estoppel

The third possibility is an estoppel argument, which falls under general principles of law. Article 38(1)(c) of the ICJ’s Statute recognizes general principles as a secondary source of law and applies these principles when the law is not clear.[66] These principles are legal norms that include equity, estoppel, and laches.[67] Estoppel requires a State to act consistently in its representation of a factual or legal issue. However, in its Serbian Loans case, the ICJ’s predecessor stated that a State’s prior statements or acts could only be held against the State if they were “clear and unequivocal.”[68] North Korea has conducted six nuclear tests since its public withdrawal and intent not to produce nuclear weapons. While estoppel appears to be the winning argument for a North Korean violation of international law, estoppel is a secondary source of law and a gap-filler argument. Moreover, another State would have to argue that they relied upon North Korea’s inconsistent acts and accordingly suffered an injury.

Does North Korea Have Obligations to De-Nuclearize outside the NPT?

Customary International Law

There may be other ways to claim that North Korea violated international obligations concerning nuclear weapons, such as obligations under customary international law. Customary international law is binding on all States, formed through widespread and consistent state practice, coupled with opinio juris.[69]

State practice is the physical and verbal acts of States acting in conformity, or not, with a particular norm.[70] State practice must be “extensive and virtually uniform” and include states whose interests would be “specially affected.”[71] Specially affected states, that is the nuclear weapons states, have not acted in conformity with the norm of disarming. Specifically, the United States and Russia have only slightly decreased their stockpiles.[72] Further, according to the ICJ, the NPT does not establish a new rule of customary international law prohibiting the use of nuclear weapons.[73]

Opinio juris is a state’s belief that it has a legal obligation.[74] None of the nuclear weapons states signed the now in force Treaty on the Prohibition of Nuclear Weapons, evincing that these states do not believe they have a legal obligation to completely disarm.[75] Further evidence of a lack of opinio juris includes a statement by France, the United States, and the United Kingdom, which declares, “this treaty [banning nuclear weapons] offers no solution to the grave threat posed by North Korea’s nuclear program, nor does it address other security challenges that make nuclear deterrence necessary.”[76] While the NPT demonstrates an attempt to move towards disarmament and non-proliferation, little evidence supports corresponding customary international law.

Under customary laws of war, jus ad bellum governs conditions in which a State may resort to force.[77] Under jus ad bellum, there is a paradigm called international humanitarian law.[78] A key principle under international humanitarian law is distinction, which requires states to distinguish between legitimate military targets and those who have civilian status.[79] In its advisory opinion, the ICJ noted that mines and chemical weapons inherently violate international humanitarian law.[80] However, the ICJ ultimately concluded that it could not rule out the lawfulness of the use of a nuclear weapon in “extreme circumstances of self defense.”[81] While advisory opinions are not binding, the ICJ opened the door for states to justify their use of atom bombs.[82]

The United Nations Charter: Article 2(4) 

North Korea may have violated the UN Charter. Article 2(4) of the Charter requires states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”[83] This prohibition is viewed by the international community as an inherent obligation on all States.[84] North Korea’s nuclear tests, missile launches, and verbal threats to launch an armed ICBM aimed at the continental U.S. could constitute a violation of this prohibition. The only exceptions to this prohibition are self-defense and Security Council authorization, which appear to be a hard sell for North Korea after its recent surge in tests and threats.[85]

What Happens Next, a Military Option or Diplomacy?

A military option, or a pre-emptive U.S. strike against North Korea would have devastating consequences. First, the casualties would be in the hundreds of thousands, even millions.[86] Japanese citizens and 10 million South Korean residents are directly in the range of North Korea’s missiles.[87] In addition, 28,000 U.S. servicemen are based in South Korea. Second, the U.S. could risk its alliances with Japan and South Korea.[88] Third, the U.S. could ruin its delicate relationship with China.[89]

Since the risks of a military option are exceedingly high in comparison to the limited benefits, diplomacy may offer the strongest way through increased nuclear action by North Korea. For Former Ambassador to the United Nations and Former National Security Advisor, Susan Rice, just as we practiced tolerance during the Cold War, we can do so again today.[90] Further, negotiation and patience, according to Dr. John Nilsson, Senior Research Fellow for the Chatham House Northeast Asia, Asia Program, are the means to alert North Korea of “the costs of further provocations” and “the potential gains to be reali[z]ed through moderation.”[91] In line with Nilsson’s view, U.S. Defense Secretary Jim Mattis noted “we are never out of diplomatic solutions.”[92] On the other hand, for Trump, after the North Korea’s latest nuclear test, “all options are on the table.”[93]

In 1795, Kant furnished the idea that our objective is peace and that as the world evolves we are progressing towards it. If we aim to de-nuclearize North Korea through non-military means as Rice suggests, we can move one step closer to realizing that goal.

 

Meera Nayak is a staff editor on the Denver Journal of International Law & Policy.

___________________________________________________________________________________________________________________________________

[1] Immanuel Kant, Perpetual Peace: A Philosophical Sketch 108 (1795).

[2] BBC, North Korea: What can the outside world do?, BBC (July 4, 2017), http://www.bbc.com/news/world-asia-39216803.

[3] BBC, North Korea crisis in 300 words, BBC (Sep. 5, 2017), http://www.bbc.com/news/world-asia-40871848.

[4] Dr. Nilsson-Wright, North Korea’s nuclear tests: How should Trump respond?, BBC (Sep. 3, 2017), http://www.bbc.com/news/world-asia-41143589.

[5] Chloe Sang-Hun, U.S. Confirms North Korea Fired Intercontinental Ballistic Missile, N.Y. Times (July 4, 2017), https://www.nytimes.com/2017/07/04/world/asia/north-korea-missile-test-icbm.html.

[6] David E. Sanger et al., North Korea Tests a Ballistic Missile That Experts Say Could Hit California, N.Y. Times (July 28, 2017), https://www.nytimes.com/2017/07/28/world/asia/north-korea-ballistic-missile.html.

[7] CNN, North Korea Nuclear Timeline Fast Facts, CNN (Sep. 4, 2017), http://www.cnn.com/2013/10/29/world/asia/north-korea-nuclear-timeline—fast-facts/index.html.

[8] Peter Baker & Chloe Sang-Hun, Trump Threatens ‘Fire and Fury’ Against North Korea if It Endangers U.S., N.Y. Times (Aug. 8, 2017), https://www.nytimes.com/2017/08/08/world/asia/north-korea-un-sanctions-nuclear-missile-united-nations.html.

[9] Chloe Sang-Hun, North Korea Says It Might Fire Missiles Into Waters Near Guam, N.Y. Times (Aug. 9, 2017), https://www.nytimes.com/2017/08/09/world/asia/north-korea-missiles-guam.html.

[10] Peter Baker, Trump Doubles Down on Threats Against North Korea as Nuclear Tensions Escalate, N.Y. Times (Aug. 10, 2017), https://www.nytimes.com/2017/08/10/world/asia/north-korea-trump.html.

[11] Peter Baker, Trump Says Military Is ‘Locked and Loaded’ and North Korea Will ‘Regret’ Threats, N.Y. Times (Aug. 11, 2017), https://www.nytimes.com/2017/08/11/world/asia/trump-north-korea-locked-and-loaded.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=a-lede-package-region&region=top-news&WT.nav=top-news.

[12] Chloe Sang-Hun & David E. Sanger, North Korea Fires Missile Over Japan, N.Y. Times (Aug. 28, 2017), https://www.nytimes.com/2017/08/28/world/asia/north-korea-missile.html.

[13] Arshad Mohammed & Phil Stewart, Trump may have to settle for deterring, not disarming, North Korea, REUTERS (Sep. 7, 2017), https://www.reuters.com/article/us-northkorea-missiles-deterrence/trump-may-have-to-settle-for-deterring-not-disarming-north-korea-idUSKCN1BI2RO.

[14] Scott Neuman, U.S. Says North Korea Is ‘Begging For War’, NPR (Sep. 4, 2017), http://www.npr.org/sections/thetwo-way/2017/09/04/548461574/haley-north-korea-begging-for-war.

[15] Peter Baker & Rick Gladston, With Combative Style and Epithets, Trump Takes America First to the U.N., N.Y. Times (Sep. 19, 2017), https://www.nytimes.com/2017/09/19/world/trump-un-north-korea-iran.html.

[16] The New York Times, Full Text of Kim Jong-un’s Response to President Trump, N.Y. Times (Sep. 22, 2017), https://www.nytimes.com/2017/09/22/world/asia/kim-jong-un-trump.html.

[17] Peter Baker & David Sanger, Trump Says Tillerson Is ‘Wasting His Time’ on North Korea, N.Y. Times (Oct. 1, 2017), https://www.nytimes.com/2017/10/01/us/politics/trump-tillerson-north-korea.html.

[18] Al Jazeera, Trump on North Korea: ‘Only one thing will work,’ N.Y. Times (Oct. 7, 2017), http://www.aljazeera.com/news/2017/10/trump-north-korea-work-171008041543749.html.

[19] North Korea: Nuclear war may break out at ‘any moment,’ N.Y. Times (Oct. 16, 2017), http://www.aljazeera.com/news/2017/10/north-korea-nuclear-war-break-moment-171017034147416.html.

[20] Robin Stein & Drew Jordan, Can the U.S. Stop a North Korean Missile?, N.Y. Times (Aug. 27, 2017), https://www.nytimes.com/video/us/100000005350585/us-missile-attack-defense.html.

[21] Id.

[22] William J. Broad et al., This Missile Could Reach California.But Can North Korea Use It With a Nuclear Weapon?, N.Y. Times (Sep. 3, 2017), https://www.nytimes.com/interactive/2017/08/22/world/asia/north-korea-nuclear-weapons.html?_r=0.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Geoff Brumfiel, Here Are The Facts About North Korea’s Nuclear Test, NPR (Sep. 3, 2017), http://www.npr.org/sections/thetwo-way/2017/09/03/548262043/here-are-the-facts-about-north-koreas-nuclear-test.

[29] Stein & Jordan, supra note 20.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Max Fisher, Bad News, World: China Can’t Solve the North Korea Problem, N.Y. Times (Sep. 6, 2017), https://www.nytimes.com/2017/09/06/world/asia/china-north-korea-nuclear-problem.html?mtrref=www.nytimes.com.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Chloe Sang-Hun, North Korea Says U.N. Sanctions Are Causing ‘Colossal’ Damage, N.Y. Times (Sep. 29, 2017), https://www.nytimes.com/2017/09/29/world/asia/north-korea-un-sanctions.html.

[42] Sang-Hun & Sanger, supra note 12.

[43] Id.

[44] Chloe Sang-Hun, South Korea Faces an Uncomfortable Reality: A Nuclear Neighbor, N.Y. Times (Aug. 21, 2017), https://www.nytimes.com/2017/08/21/world/asia/south-korea-north-nuclear-weapons.html.

[45] Id.

[46] Id.

[47] Id.

[48] Scott Neuman, Putin: North Korea Would ‘Eat Grass’ Before Giving Up Nukes, NPR (Sep. 5, 2017) http://www.npr.org/sections/thetwo-way/2017/09/05/548676414/putin-north-korea-would-eat-grass-before-giving-up-nukes.

[49] Richard Gonzales, U.N. Security Council Approves New North Korea Sanctions, NPR (Sep. 11, 2017), http://www.npr.org/sections/thetwo-way/2017/09/11/550301634/u-n-security-council-approves-new-north-korea-sanctions.

[50] Id.

[51] Neuman, supra note 14.

[52] REUTERS, Merkel suggests Iran-style nuclear talks to end North Korea crisis, REUTERS (Sep. 9, 2017), https://www.reuters.com/article/us-northkorea-missiles-germany/merkel-suggests-iran-style-nuclear-talks-to-end-north-korea-crisis-idUSKCN1BK0WU.

[53] Id.

[54] Treaty on the Non-Proliferation of Nuclear Weapons (NPT), United Nations Office for Disarmament Affairs, https://www.un.org/disarmament/wmd/nuclear/npt/.

[55] Treaty on the Non-Proliferation of Nuclear Weapons, Dec. 12, 1985, 729 U.N.T.S. 161 [hereinafter NPT].

[56] Id.

[57] Democratic People’s Republic of Korea: Accession to Treaty on the Non-Proliferation of Nuclear Weapons (NPT), United Nations Office for Disarmament Affairs (2003), http://disarmament.un.org/treaties/a/npt/democraticpeoplesrepublicofkorea/acc/moscow.

[58] Vienna Convention on the law of treaties art. 26, May 23, 1969, 1155 U.N.T.S. 311.

[59] Id.

[60] NPT, supra note 55, at art. X.

[61] Id.

[62] Id.

[63] Id.

[64] N.Y. Times, Full Text: North Korea’s Statement of Withdrawal, N.Y. Times (Jan. 10, 2003), http://www.nytimes.com/2003/01/10/international/asia/full-text-north-koreas-statement-of-withdrawal.html.

[65] Id.

[66] Statute of the International Court of Justice art. 38(1)(c), Apr. 18, 1946, http://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf.

[67] Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. Rep. 253, (Dec. 20).

[68] Payment of Various Serbian Loans Issued in France (Fr. v. Yugo.), 1929 P.C.I.J. (ser. A) No. 20 (July 12).

[69] North Sea Continental Shelf Cases (Ger. v. Den.; Ger. v. Neth.), Judgment, 1969 I.C.J. Rep. 3, ¶ 71 (Feb. 20).

[70] Jurisdictional Immunities of the State (Germ. v. It.), Judgment, 2010 I.C.J. Rep. 310, ¶ 55 (July 6).

[71] North Sea Continental Shelf Cases (Ger. v. Den.; Ger. v. Neth.), Judgment, 1969 I.C.J. Rep. 3, ¶ 74 (Feb. 20).

[72] Micah Zenko, Toward Deeper Reductions in U.S. and Russian Nuclear Weapons, CFR (Nov. 2010), https://www.cfr.org/report/toward-deeper-reductions-us-and-russian-nuclear-weapons.

[73] Jill M. Sheldon, Nuclear Weapons and the Laws of War: Does Customary International Law Prohibit the Use of Nuclear Weapons in All Circumstances, 20 Fordham Int’l L. J. 181, 1996, at 248-49.

[74] Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 188 (June 27).

[75] Treaty on the Prohibition of Nuclear Weapons, United Nations Treaty Collection (July 7, 2017), https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-9&chapter=26&clang=_en.

[76] Al Jazeera, Dozens of states sign treaty banning nuclear weapons, Al Jazeera (Sep. 20, 2017), http://www.aljazeera.com/news/2017/09/dozens-states-sign-treaty-banning-nuclear-weapons-170920160614985.html.

[77] McNab & Matthews, Clarifying the Law relating to Unmanned Drones and the Use of Force: The Relationships between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law, 39 Denv. J. In’l L. & Pol’y 661, 2011, at 125.

[78] Id.

[79] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 57(2)(a)(i), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I].

[80] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶¶ 76-77 (July 8).

[81] Id. at ¶ 97.

[82] Gabrielle Blum, The Laws of War and the “Lesser Evil”, 35 Yale J. of Int’l L., 2010, at 25.

[83] U.N. Charter art. 2, ¶ 4.

[84] Ian Brownlie, Principles Of Public International Law 510-12 (7th ed. 2008).

[85] U.N. Charter, supra note 83, at art. 42, 51, 53.

[86] Susan E. Rice, It’s Not Too Late on North Korea, N.Y. Times (Aug. 10, 2017), https://www.nytimes.com/2017/08/10/opinion/susan-rice-trump-north-korea.html.

[87] Nilsson-Wright, supra note 4.

[88] Id.

[89] Rice, supra note 86.

[90] Id.

[91] Nilsson-Wright, supra note 4.

[92] Mohammed & Stewart, supra note 13.

[93] Colin Dwyer, ‘All Options Are On The Table': Unease Reigns After North Korean Missile Test, NPR (Aug. 29, 2017), http://www.npr.org/sections/thetwo-way/2017/08/29/546992435/-all-options-are-on-the-table-unease-reigns-after-north-korean-missile-test.

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To Impose or Not To Impose?: Iranian Sanctions Under the Trump Administration

Photo Credit: Evan Vucci / Associated Press

On September 14, 2017, the Trump Administration once again waived U.S. sanctions on Iran, maintaining its commitment to the Joint Comprehensive Plan of Action (JCPOA).[1] Shortly thereafter, President Trump made several contentious comments directed at Iran during his speech at the United Nations General Assembly (UNGA) on September 19, 2017, putting his upcoming certification of Iran’s compliance with the JCPOA into question.[2] How easy is it exactly for the President to reimpose sanctions on Iran? Actually, not hard at all.

The JCPOA is an international multilateral agreement falling entirely within the scope of the executive power. There are two congressionally-mandated protocols that place a check on this executive power within the domestic arena.

First, § 135(d)(6) of the Iran Nuclear Agreement Review Act of 2015 requires the executive to certify Iran’s compliance with the JCPOA every 90 days.[3] If the President decides not to recertify by the next deadline on October 15, 2017, the sanctions question lands in Congress’s lap. Congress then has 60 days to decide whether U.S. sanctions on Iran will remain lifted.

Second, under 22 U.S.C. § 8513a(d)(5), the President may choose to waive the § 8513a congressionally-imposed sanctions on Iran every 120 days.[4] Renewing the waiver is entirely the prerogative of the President, and the next waiver deadline will be in January 2018. The specific details of presidential waivers are less important than the fact that both renewing sanctions waivers and certifying compliance are actions solely within the purview of the President.

Hence, the relative ease in unravelling the JCPOA. Given the low likelihood of majority passage through Congress if the President decides to decertify compliance (key Republicans, including Bob Corker (R-TN) and Paul Ryan (R-WI) have indicated support for the JCPOA[5]), sanctions waivers may be of greater significance than compliance recertification, making January 2018 a potentially more important signpost than October 15, 2017.

Because the JCPOA is an international agreement and not a treaty, the authority to pursue international action against Iran (as opposed to the two domestic options described above) falls entirely under the executive branch. President Trump could submit a noncompliance complaint against Iran to the JCPOA’s Joint Commission, which would trigger a 35-day dispute resolution process. If after this process, the Administration determines that the complaint is unresolved, the U.S. will have two options: 1) it may use the unresolved issue as grounds to cease its own performance under the JCPOA, which would in effect “snap back” U.S. extraterritorial sanctions on Iran; or 2) it may notify the United Nations Security Council (UNSC) that the unresolved issue constitutes “significant nonperformance” under the JCPOA. The UNSC would hold an affirmative vote on a new resolution to keep sanctions on Iran lifted. If the U.S. exercises its veto power, the vote will fail, as will the JCPOA, reimposing all pre-JCPOA sanctions from all parties to the agreement.

The likelihood of President Trump issuing a complaint to the Joint Commission is low given the significant pushback he is likely to receive from the international community. Such recalcitrance would risk burning bridges with other JCPOA parties, including China, Russia, and Germany – not an ideal situation with fragile foreign policy decisions looming ahead in Syria, Iraq, and North Korea. And considering President Trump already waived sanctions twice, and the likelihood of passage through Congress is low. I am of the opinion that the JCPOA will remain intact for some time. The Washington Post released an article on October 5, 2017 stating President Trump will issue a decision not to certify compliance on October 12, 2017. October 12th has come and gone, and so we continue to wait and see.

Shirin Lakhani is a 3L JD/MBA candidate at the University of Denver Sturm College of Law and the Business Editor for the Denver Journal of International Law and Policy.

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[1] Washington Post, U.S. extends Iran sanctions relief while bemoaning behavior (Sept. 14, 2017).

[2] The White House, Remarks by President Trump to the 72nd Session of the United States General Assembly (Sept. 19, 2017).

[3] H.R.1191 — 114th Congress (2015-2016).

[4] 22 U.S. Code § 8513a – Imposition of sanctions with respect to the financial sector of Iran.

[5] PIRA, The Iranian Nuclear Deal Can Survive a Trump Decertification (Sept. 12, 2017).

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Gaps in International Law Surrounding Human Trafficking and Natural Disasters

Photo Credit: UN Photo/Jean-Marc Ferré

Most of the modern world has concerned itself with both the atrocity of human trafficking and the devastation of natural disasters. These events leave human pain and suffering in their wake at outstanding levels. A large international effort to create transnational standards of law has been constructed to mitigate and respond to these catastrophes, however, there is a shocking gap in understanding the connection and correlation between the two. Though international law has made commendable strides toward globally cooperative solutions in the respective areas of human trafficking and natural disasters, little legal action has been crafted to reduce the overlap between these two. Scholars have scratched the surface of this issue, beginning to acknowledge vulnerability natural disasters create that contributes to increased human trafficking, but international law must be further developed to match this ever-increasing cross-section of human suffering.

Human trafficking is a 150-billion-dollar industry that reaches every corner of the world and impacts every country.[1] Generally, human traffickers prey on the most vulnerable and desperate, specifically targeting defenseless young women and children.[2] Characterized by three elements; act, means, and purpose, the ability to execute the act of human trafficking is influenced by a series of factors at the individual, state, trafficker, and international level.[3] The individual factors generally relate to the lack of economic or social opportunities that lead people in poverty to trust traffickers for job opportunities.[4] In contrast, the remaining deal with the opportunity for trafficking at the trafficker, state, and international levels.[5] Natural disasters exacerbate the following factors at every level: victim’s unawareness of potential risk, inadequate social safety nets, inadequate law enforcement, low risk of getting caught, border regulations, and lack of international coordination.[6] Natural disasters further marginalize and perpetuate the vulnerability of the most at-risk people groups. Economic damage caused by natural disasters will lead more people to take risks for better economic opportunity that lead to being trafficked, but the most detrimental impact of natural disasters occurs due to the crumbling infrastructure. Personal interviews with anti-human trafficking workers on the ground of natural disasters, such as the Nepal earthquake, describe how traffickers purposefully enter disaster zones, impersonate relief workers, and lure an outstanding number of vulnerable people to a lifetime of slavery. One worker commented on this phenomenon to a popular news outlet saying, “this is the time when the brokers go in the name of relief to kidnap or lure women.”[7] Human traffickers capitalize on the lack of coordination, government infrastructure, and general communication to pose as relief workers, from well-known organizations, in order to lure victims and sell them as slaves.

Children separated from their families due to natural disasters are especially at risk to the lure of predators. Special Rapporteur, Najat Maalla M’jid, stated at the United Nations Human Rights Council, “children’s vulnerability is significantly increased when they are separated from their families, unaccompanied, orphaned or displaced following humanitarian crisis.”[8] M’jid went further to say in her report that the United Nations has found, “some people exploit the chaotic environment that follows a natural disaster to engage in criminal activities, such as selling children for the purpose of illegal adoption, forced labor or sexual exploitation.”[9] The chaos of a natural disaster presents more opportunity to lure and fraud vulnerable survivors than the impoverished economic state alone. Again, though poverty and a lack of economic opportunities is a major factor for human trafficking, the disorder and lack of communication caused by natural disasters creates far more opportunity for traffickers to build up their supply of free labor.

Substantial international law has been created in the United Nations to prevent human trafficking, and many countries have created corresponding domestic law. There has also been an overwhelming effort for nations to develop a cooperative relief effort after natural disasters. Though these efforts are noble, they are incomplete. Neither problem will be solved until the prevalence of the other is recognized. In its most basic form, international law surrounding human trafficking is based on the Universal Declaration of Human Rights (1948).[10] This document establishes the most basic freedoms and rights of human beings, regardless of race, nationality, gender, political preference, or any other self-identifying category.[11] Though it doesn’t mention human trafficking, article four specifically mentions that slavery in all forms shall be eliminated across all nations.[12] Shortly after the Universal Declaration of Human Rights was created, the UN created a resolution, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, that specifically called for the end of human trafficking.[13] The entire document focuses on calling nations, “to punish any person who, to gratify the passions of another: (1) [p]rocures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2) [e]xploits the prostitution of another person, even with the consent of that person.”[14] Two decades later, the UN ratified another international standard, the International Covenant on Civil and Political Rights, which promoted the rights of all individuals throughout the world.[15] This document affirms the international communities’ desire that “the slave-trade in all their forms shall be eliminated.”[16] From the early stages of the United Nations, the international community decided that slavery and human trafficking are offenses that cannot be tolerated in any form. The twentieth century spurred the battle against trafficking and set the standard of freedom deserved by every citizen of the world, which the remaining international law attempts to achieve.

At the turn of the century, the United Nations ratified the Protocol to Prevent, Suppress and Punish Trafficking In Persons, Especially Women And Children, supplementing The United Nations Convention Against Transnational Organized Crime, which called every nation to criminalize human trafficking, protect human trafficking victims, and coordinate to prevent future cases of human trafficking.[17] A few years later, a supplemental resolution was created, The United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air, to further outline the measures by which countries are called to stop the actual smuggling of people into their borders.[18] The final major piece of international law is the Optional Protocol to the Convention on the Rights of the Child on the sale of children, Child Prostitution and Child Pornography, which again further criminalizes the sale of children and calls for nations to work together to stop the expansion of child slavery.[19]

Though these laws are great efforts by the international community, they come with many gaps when trying to actually solve the devastating problems. On a general note, these laws contain gaps in enforceability by deferring each state to create their own law based on the guidelines of the resolution.[20] These international laws act as a high standard, encouraging countries to try their best to meet it.[21] This inevitable nature of international law undoubtedly creates space for traffickers to operate. However, the greater failure of these laws is the lack of awareness natural disasters, and other crisis, play in the operations of human trafficking. All the stated laws call nations to work together to prevent the spread of trafficking, outlining the important factors of trafficking to be weary of, and yet, not a single one mentions how natural disasters play into the expansion of human supply. It would be like an exterminator, trying to rid a house of a termite infection, not attempting to address the termite nest, but rather killing termites as he sees them. This is clearly an inefficient solution, and will only perpetuate the cost and toll on the homeowners. If the international community wants to truly address the issue of modern slavery, at bare minimum, they must consider one of the greatest sources of supply of vulnerable people. Until the international community sets a standard of law for each nation to base their domestic policies on which addresses the connection between natural disasters and human trafficking, modern slavery will never end.

In a similar manner, the international effort to mitigate the suffering from natural disasters will never truly be effective, until the coordinated effort acknowledges the prevalence of human trafficking in disaster zones. The international community has, in recent years, dramatically increased its effort to help nations recover from unpredictable natural disasters. Wealthy nations provide aid and support to developing states in an effort to stabilize their societies and lessen the suffering of their citizens. Furthermore, the United Nations has held many conventions which are aimed at understanding the damage caused by past disasters and looking to create more effective future disaster responses. The UN started addressing the issue of international disaster relief in the late twentieth century with the International Decade for Disaster Risk Reduction as more nations began to coordinate disaster relief.[22] This resolution places natural disaster response as a central issue for the UN to address.[23] In an effort to create effective relief, the UN created several initiatives, such as the Office of Disaster Risk Reduction, The YokoHama Strategy, and several World Conferences on Disaster Reduction that produced documents such as Hyogo Framework and the Sendai Framework.[24] Furthermore, outside of the United Nations, the International Federation of Red Cross Societies has attempted to address the lack of binding international law or plan of action for disaster response. They created the International Disaster Response Laws, which were ratified and adopted by thirty-eight nations.[25] The Sendai Framework was established to replace the Hyogo Framework and will remain the most pervasive international standard in response to disasters until 2030.[26] It aims to “guide the multi-hazard management of disaster risk” as a transnational cooperative effort to mitigate the damages of high mortality, economic loss, personal suffering, spread of disaster zone, and international cost.[27] The International Federation of Red Cross Societies has attempted to supplement the UN framework, by providing more specific guidance for best practices in disaster relief in order to prevent the most suffering possible.

Though these actions are admirable, and it is important to continue the effort towards more effective disaster response, not a single document produced by the UN or Red Cross considers the impact of human trafficking on the victims of the disaster. If the goal of the international community is to prevent the suffering of innocent humans after a natural disaster, they must take into consideration the vulnerability to slavery these innocent humans will face. Modern slavery affects every category of suffering the UN Sendai Framework seeks to stop. High mortality, economic loss, personal suffering, spread of the suffering of disaster, and international cost are all consistently effected by human trafficking.[28] If the international community really wants to address these issues in preparation for response to natural disasters, they must take into consideration how vulnerability, chaos, and crisis create huge opportunities for traffickers to easily perpetrate horrendous acts of slavery. International law and efforts in response to natural disasters will be incomplete and ineffective in achieving their own outlined goals until action is taken to include an understanding of the connection between human trafficking and natural disasters.

The international community is exerting a remarkable effort to prevent human trafficking and to respond to the suffering of natural disasters, and yet both of these endeavors will continually be insufficient until the community fully understands the connection between the two. Furthermore, an analysis of the overlap must be included in international law, acting as a guideline for countries to create their own domestic policies that reflect the need to combat human trafficking and respond to natural disasters while acknowledging the other. An effective understanding of the connection between these inevitable atrocities of life is crucial to developing productive and successful policies. There is no doubt the international community desires to uphold basic human rights and prevent unneeded suffering caused by human trafficking and natural disasters, however, currently, its actions to achieve these goals are incredibly insufficient.

Mallory Miller is a Staff Editor with the Denver Journal of International Law & Policy, and a 1L at the Sturm College of Law.

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[1] Human Trafficking by the Numbers, Hum. Rts. First (Jan. 7, 2017), http://www.humanrightsfirst.org/resource/human-trafficking-numbers.

[2] Human Trafficking, U.N. Office on Drugs and Crime, https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html (last visited Sept. 2, 2017).

[3] U.N. Office on Drugs and Crime, supra note 2.

[4] Manuel Brülisauer, Hum. Trafficking in Post-Earthquake Nepal (2015), https://www.ethz.ch/content/dam/ethz/special-interest/gess/nadel-dam/documents/mas/mas-essays/MAS%20Cycle%202014%20-%202016/Essay_Manuela%20Bruelisauer.pdf.

[5] Manuel Brülisauer, supra note 4.

[6] Manuel Brülisauer, supra note 4.

[7] Jason Burke, Nepal Quake Survivors Face Threat from Human Traffickers Supplying Sex Trade, The Guardian, (May 5, 2015, 9:00 AM), https://www.theguardian.com/world/2015/may/05/nepal-quake-survivors-face-threat-from-human-traffickers-supplying-sex-trade.

[8] David Singh, Child Traffickers Thrive on Disasters, U.N. Office for Disaster Risk Reduction, (Mar. 26, 2012), https://www.unisdr.org/archive/25934.

[9] Singh, supra note 8.

[10] Lindsey King, International Law and Human Trafficking, Topical Res. Dig.: Hum. Rts. & Hum. Trafficking, https://www.du.edu/korbel/hrhw/researchdigest/trafficking/InternationalLaw.pdf (last visited Sept. 2, 2017).

[11] G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

[12] G.A. Res. 217 (III), A, supra note 9.

[13] King, supra note 10.

[14] G.A. Res. 317 (IV), Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (Dec. 2, 1949).

[15] King, supra note 10.

[16] G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights (Dec. 16, 1966).

[17] G.A. Res. 55/25, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Dec. 25, 2003).

[18] G.A. Res. 55/25, The United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air (Jan. 28, 2004).

[19] G.A. Res. A/RES/54/263, Optional Protocol to The Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (May 25, 2000).

[20] Lindsey King, International Law and Human Trafficking, Topical Res. Dig.: Hum. Rts. & Hum. Trafficking, https://www.du.edu/korbel/hrhw/researchdigest/trafficking/InternationalLaw.pdf (last visited Sept. 2, 2017).

[21] King, supra note 16.

[22] United Nations Office of Disaster Risk Reduction, International Decade for Disaster Risk Reduction (1999), http://www.unisdr.org/files/31468_programmeforumproceedings.pdf.

[23] International Decade for Disaster Risk Reduction, supra note 18.

[24] Arielle Tozier de la Poterie & Marie-Ange Baudoin, From Yokohama to Sendai: Approaches to Participation in International Disaster Risk Reduction Framework, 6 Int’l J. Disaster Risk Sci. 128 (2015).

[25] U.N. Office for Disaster Risk Reduction, Chart of the Sendai Framework for Disaster Risk Reduction 2015-2030, U.N. Office for Risk Reduction, http://www.unisdr.org/files/44983_sendaiframeworksimplifiedchart.pdf.

[26] G.A. Res. 69/283, Sendai Framework for Disaster Risk Reduction, (June 3, 2015).

[27] G.A. Res. 60/283, supra note 18

[28] Louise Shelley, Human Trafficking: A Global Perspective, (2010).

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Iran’s Aspiration to Establish Peace and Security in the Middle East: Closer to Hegemony or International Law?

Photo Credit: AP Photo

A few hours after the Iranian presidential election, which was held on May 19, 2017, the re-elected moderate President Hassan Rouhani characterized the election as a “victory of peace, reconciliation against tension and violence” in his speech addressing the Iranian nation. According to Rouhani, “the message of [the Iranian] people [in this election] was expressed clearly in the election and today, the world knows well that the Iranian nation has chosen the path of interaction with the world, away from violence and extremism.” Rouhani’s statements are extensions of his statements on Iran’s aspiration to form a global coalition against Islamic extremism (any form of Islam that opposes democracy, the rule of law, individual liberties and mutual respect and tolerance of different faiths and beliefs) instead of the armed coalition in the Middle East.

Considering the latest developments in Iran, this post examines some aspects of Rouhani’s attitude towards security and peace in the world and more importantly in the Middle East.

During the General Assembly of the World Ahl-ul beit Forum that was held on August 15, 2015 in Tehran, Iran’s President Hassan Rouhani remarked,

“Our strength, scientific, moral and political power has never been and will be never used against any of the Muslim countries and neighbors in our region. With our ability and strength, we want to establish peace, stability and security in this region… In Yemen, Iraq, Lebanon, Syria and Palestine, there is no difference between a Shia and a Sunni. We want peace, security and brotherhood for all and development for the whole region.”

Rouhani’s statement at the forum has brought the question to mind of whether Iran is pursuing hegemonic power – influence and political dominance of a state or country over another – in the Middle East or Iran’s new administration is pursuing an attitude closer to international law. Answering this question depends on some critical challenges facing Iran.

After a long-running nuclear tension between Iran and the world powers, the P5+1 and the EU, Rouhani’s administration team succeeded in reaching a Nuclear Deal with those powers on July 14, 2015 in Vienna. In summary, the Nuclear Deal prevents Iran from obtaining nuclear weapons. The main purpose of the Nuclear Deal was to ensure the purely peaceful and civilian nature of Iran’s nuclear activities. The Nuclear Deal was an important achievement of Rouhani’s administration, which prepared the solution grounds of the Iranian nuclear crisis. In continuation of this important progress, Iran found an opportunity to build new connections with its neighbors and the EU and non-EU countries. In any case, improvement of Iran’s international and regional relations and, therefore, the growth of Iranian power in the region were underlying concerns of some neighboring countries, such as Saudi Arabia. Saudi officials believe that “increased Iranian power will lead to political mobilization by Shia inside the Sunni-ruled Gulf states.” Nevertheless, Rouhani stated in reaction that Iran is not seeking regional hegemony but is rather working for a strong Middle East and better relations. In this regard, Rouhani also added that “Iran’s face is the face of fighting terrorism and establishing peace and security in the region and we will continue this path with more power in the 12th administration.”

Another step taken which strengthened these assertions was Rouhani’s Draft WAVE Resolution, proposed on September 25, 2013, entitled “A World against Violence and Violent Extremism (WAVE).” The Resolution was approved by the UN General Assembly on December 10, 2015. The WAVE Resolution, which calls on all nations across the globe to denounce violence and extremism, has been adopted on the basis of President Rouhani’s proposals on the fight against extremism and violence.

Keeping in mind Rouhani’s attitude in improving Iran’s relations after the Nuclear Deal, it should be mentioned that international relations of the states which form their national and international interests, is the main criteria of international law, which depends on a balance of power between the states that prevents a state from breaking international law. In this context, the lack of a community of interests or balance of power, there is no international law. Hans J. Morgenthau, “Positivism, Functionalism, and International Law”, 34 AJIL (1940) at 274. On the other hand, regardless of the continuing anti-Iran rhetoric of the new U.S. administration and Israel, adopting the WAVE Resolution by consensus upgraded Iran’s political position in international structures. Since Rouhani’s administration by such a suggestion showed that Iran demands peace and security in the region, it can be concluded that the WAVE Resolution was the most important step taken in order to create a moderate situation around the world.

At first sight, it may be said that the above-mentioned developments are adequate justifications, which demonstrate Iran’s pacifism and get closer to international law, since leadership in the fight against the factors disrupting international peace and security is the natural province of international law. However, it should be said that such leadership is not unlimited and therefore a state cannot act in violation of the basic rules of international law to protect peace and security. Keeping in mind the fact that the United States and its Middle Eastern allies, mainly Israel and Saudi Arabia, have ever aggressive policies such as war against Iran as an option on the table, it cannot be easily claimed that adopting the WAVE Resolution, in line with Rouhani’s anti-extremism proposals, as an anti-war policy to form a global coalition against extremism legitimizes Iran’s regional attitudes (intervention in internal affairs of the other countries due to lead the establishment of peace and security in the Middle East). In other words, Iran’s aspiration to establish peace and security in the region is not a reflection of its compliance with the international legal order.

First, the basic indicator of convergence of a state to the basic norms of international law and its safeguards should be sought at the national level. As a state in which the fundamental human rights such as the right to life, the rights to freedom of speech, access to information, right to express ideas and opinions, health services, and a clean environment are most seriously violated, talking about compatibility with international law is almost impossible.

Second, as a state in which its government’s form is an Islamic Republic, Iran’s foreign policy is based on the aspiration to be a power of the region, which has been foreseen in the Iranian Constitution. In this regard, Article 152 of the Constitution reads:

“The foreign policy of the Islamic Republic of Iran is based on the rejection of all forms of domination, both the exertion of it and submission to it, the preservation of the independence of the country in all respects and its territorial integrity, the defense of the rights of all Muslims…”

Besides, the contemporary Iranian state practice in “defending the rights of all Muslims” is the most important part of the Iranian political tradition ─ in line with the wide range of privileges and authorities foreseen in the Constitution ─ which has been applied during the whole reign of the ayatollahs. The Iranian political tradition is based on its constitutional monarchy in which intertwined organs of government and laws ensure the authority of the Supreme Leader over the president and the parliament. The Iranian constitutional monarchy is based on the top political organ in the country called the Supreme Leader who delineates the general policies of the Islamic Republic of Iran, Article 110 of the Iranian Constitution. Therefore, the President’s adherence to human rights, at the national level, and international law, at the international or regional level, does not significantly affect Iran’s national and international policies. In this context, it must be kept in mind that applying the policy of defending the rights of all Muslims depends on the maintenance of mutually peaceful relations with others. However, considering Iran’s past regional policies and its Revolutionary Guard Corps’ undeniable role in the Middle East, most notably supporting the other Muslim regimes of the region such as Lebanon, Palestine, Iraq, Syria, Yemen, Qatar etc., it can absolutely be said that despite President Rouhani’s significant achievements ─ the Nuclear Deal as a “victory over war” and approval of the proposal which calls for the World Against Violence and Extremism in the UN General Assembly through consensus ─ Iran has been abusing its international relations in the region. Most importantly, the Iranian regime has continuously violated the principles of sovereign equality and non-intervention in internal affairs of another nation by directly and indirectly intervention in internal affairs of the above-mentioned states. The key point here is that in any case of intervention in other states of the Middle East, Iran had generally justified its attitudes under the guise of restoring regional order and security. In any case, Iran’s influence in the Middle Eastern states’ internal affairs and its continuing intercontinental ballistic missile program under the Revolutionary Guard Corps have promoted Iran to a regional power.

In sum, regardless of the significance of Iran’s achievements during Rouhani’s presidency, its attitude to establish peace and security in the Middle East through intervention in internal affairs of other states of the region committed in line with the Iranian political tradition is a hegemonic posture of Iran towards being a power in the region. Accordingly, the steps taken to restore order to the region are not in compliance with international law and the UN principles, including sovereign equality and non-intervention in the internal affairs of another state.

 

Dr. Saeed Bagheri is the Max Weber Post-Doctoral Fellow in the Law Department of the European University Institute (EUI), Florence, Italy.

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Extraterritorial Internet Censorship and the Need for a Global Legal Standard

“[T]he right to freedom of expression on the Internet is an issue of increased interest and importance, as the rapid pace of technological development enables individuals all over the world to use new information and communications technology.”[1]

Photo Credit: Pixabay

Photo Credit: Pixabay

In 2013, the United Nations Human Rights Counsel acknowledged the increasing interest in ensuring the freedom of expression.[2] This concern is not new, nor has it been alleviated.[3] Single-state actors are increasingly depriving non-citizens of free speech by implementing world-wide censorship orders on private companies.[4]

This article will describe the background of adopted declarations and covenants regarding freedom of expression. Next, this article will discuss the practice of worldwide censorship by single-state actors. Google will be discussed in depth as well as other recent developments of single-state global censorship. Finally, I will propose a legal test to be adopted globally by an international convention. This test will aid courts to decide whether one state should impose their will on global communications and provide an appellate process. The standard consists of one proposed by an intervener in Google and is a fair, cautious, and last-resort style approach that respects cultural differences and the inherent right of a sovereign state to govern its territories.

No country should control the type of online content available in other countries. To do so creates a race to the bottom where countries with competing interest, culturally and economically, will create stricter and stricter rules that regulate all aspects of freedom of expression on the Internet.[5]

BACKGROUND

Article 19 of both the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) aim to protect the right to receive information regardless of frontiers and through any medium.[6] It has become customary to emphasize that individuals enjoy the same rights online as they do offline.[7] In the context of internet censorship, the ICCPR can be extended to say freedom of expression may be limited “[f]or the protection of national security or of public order, or of public health or morals.”[8] Without restriction, the UDHR states that freedom of expression should be “without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”[9]

Any restriction must be precise enough and publicly accessible in order to limit the authorities’ discretion and provide individuals with adequate guidance.[10] To be necessary, a restriction must be more than merely useful, reasonable or desirable.[11] It is also well established that necessity requires an assessment of proportionality.[12] Proportionality requires demonstrating that restrictive measures are the least intrusive instrument among those that might achieve their protective function and proportionate to the interest to be protected.[13] Notwithstanding a difference of application within states, there have been an increasing number of courts that impose their will on the entire world. Several organizations around the world have been struggling to recommend the best course of action moving forward.[14] The next section exemplifies why necessity and proportionality tests are not enough.

GOOGLE V. EQUUSTEK SOLUTIONS, INC.

On June 28, 2017, the Supreme Court of Canada ordered that Google, Inc. must de-index websites identified by the court through a worldwide injunction.[15] Google is a non-party to the original suit, but while a court order does not bind non-parties, “anyone who disobeys the order or interferes with its purpose may be found to have obstructed the course of justice and hence be found guilty of contempt of court.”[16] Equustek, a small tech company in British Columbia, sued its former distributor, Datalink Technology Gateways (“Datalink”), which was selling allegedly counterfeit versions of its products online.[17] Equustek won a default judgement and acquired several injunctions that proved ineffective. In a last resort effort to stop Datalink, Equustek won an injunction to have Google de-list all of Datalink’s websites in Canada.[18] That injunction did not stop Datalink from hosting websites outside Canada, so the court granted a worldwide injunction. Google appealed, but was denied as only a theoretical argument.[19]

The Court concluded that Equustek faced irreparable harm to its intellectual property and profits because Google has a seventy to seventy-five percent market-share of global Internet searches.[20] The court further agreed with the court below, finding that: (1) in personam jurisdiction, thus the court could make an order with extraterritorial effect; (2) courts of inherent jurisdiction could grant equitable relief against non-parties; (3) an interlocutory injunction against Google was the only practical way to prevent Datalink from flouting the court’s several orders; and (4) since there were no identifiable countervailing comity or freedom of expression concerns that would prevent such an order from being granted, the interlocutory injunction should be upheld.[21]

This decision immediately garnered outrage related to the fourth point above.[22] The Canadian decision opens the door for other countries to interpret what “freedom of expression concerns,” are and what “proportional” to preventing “irreparable harm” means. For example, some countries may want to order a worldwide injunction on religious websites, websites hosting educational materials, or websites aimed at empowering women – the ends are boundless. Practically speaking, the refusal to classify the sale of counterfeit products as free speech may be correct. However, the application of the rule of law, to allow any singular sovereign to impose its judgment on the rest of the world, contrary their own beliefs, laws on censorship, or due process, is dangerous to international human rights.

OTHER RECENT DEVELOPMENTS

Canada’s ruling is not the first of its kind. In 2014, Google Spain lost a case where the highest court in the Europe declared that it must remove global listings of personal information on third-party websites upon request.[23]

Two years later, the so-called “right to be forgotten” led to a $112,000 fine from a case in France.[24] Google has fought hard to limit single-state legal decisions to its local operations like Google.fr in France, saying that applying the ruling worldwide would infringe people’s freedom of expression.[25] France, in opposition, claims that privacy and human rights are best served by protecting the personal data of individuals because individual privacy is a fundamental human right.[26] This clear divergence in fundamental values exemplifies an impending global crisis that is ripe for global solution. The facets of differences in interest between a large multinational corporation and a sovereign state continue to grow – but in this instance, there may be a solution.

THE NEED FOR A WORLD STANDARD FOR EXTRATERRITORIAL CENSORSHIP

In Google, there was a proposed standard for the Canadian Supreme Court to use, but it was completely ignored.[27] The Electronic Frontier Foundation’s (“EFF”) interest is to propose a:

“principled test, with specific requirements, as guidance for Canadian courts when considering the granting of mandatory worldwide injunctions affecting non-parties in foreign jurisdictions, particularly where such orders restrain free expression on the internet…the extraterritorial effects of mandatory worldwide injunctions that restrain free expression on the internet are anathema to judicial comity.”[28]

With few modifications, the EFF test should be applied in all courts bound by an international convention so that the rights, values, and sovereignty of all states are respected. This two-prong test runs akin to the “strict scrutiny” test used in United States federal courts.[29]

First, the threshold question should be whether an order with extraterritorial effect may offend another state’s core values or run contrary to the law of any jurisdiction whose citizens the order might affect – with the burden of proof resting on the plaintiff seeking worldwide injunction.[30] If there is a “realistic possibility” that an order may offend another state’s core values or be against its laws, the order shall not be made because of an exceedingly high burden on the plaintiff.[31]

If the proposed injunction passes the first prong, the plaintiff must then meet each element of the second prong by proving: (1) a strong prima facie case on the merits; (2) substantial and irreparable harm to its interest; (3) no reasonable alternative will prevent such harm; (4) the proposed order is narrowly tailored to minimally impair freedom of expression; (5) the order is technically feasible and enforceable; and (6) the beneficial effects of the order will outweigh the detrimental effects on the rights and interests of the enjoined party and the public, including the effects on the right to free expression.[32] In addition, this proposed framework would include leave to appeal for certiorari in a neutral international court.

This test presents an extremely high burden, but is open to flexible use in practice. The first prong will allow a court to receive amicus briefs from other states, industries, and human rights groups alike for review. Thus, the first prong promotes a comprehensive forum that can be extended or limited to the extent the court pleases.

The second prong provides a necessary quest for validity and viable alternatives. A strong prima facie case with substantial irreparable harm should be proven in any case regardless. A search for reasonable alternatives is a rational approach for an injunction effecting several billions of people. A narrowly tailored injunction prevents runaway courts from imposing their will on the world, as they currently do.[33] Then, to ensure redressability, the remedy must actually be technically possible, meaning that a company like Google or Bing has the technological capability to comply without the need of constant oversight by the court.

The most flexible, yet difficult element would likely be the last element that provides a balancing test, benefit versus detriment. To illustrate, the United States currently allows pornography, while several countries do not. The United States bans terrorist organization websites, but others do not. Some countries have strong piracy laws, while others have none. Each of these policies stem from fundamental values where policy decision makers balance benefit versus detriment. This presents a problem because courts may abuse the proposed test on these grounds.

However, the only balancing consideration should be on human rights and the impact on freedom of expression, for which there is a long history in international law.[34] Thus, an independent, appellate level international court is necessary. This court should consist of a tribunal unbiased by their cultural norms, and as large as necessary.

CONCLUSION

The decision in Google has raised the issue before us to a tipping point. The proposed convention contained here is meant to spark a meaningful debate in the United Nations and beyond. There will need to be many details negotiated in order for a convention, rather than a resolution, to be passed. The proposed convention intentionally omits any cultural or value-based biases. The only common value, which will be the driving force to adopt this convention, is the respect for freedom of expression. Each state has the right to decide what that means for itself, but not for all.

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

______________________________________________________________________

[1] Human Rights Council Res. 32/13, U.N. Doc. A/HRC/RES/32/13, at 7 (July 1, 2016).

[2] H.R.C. Res. 32/13, supra note 1, at 2.

[3] See generally Reuters in Ottowa, Google Can Be Forced to Pull Results Globally, Canada Supreme Court Rules, The Guardian (June 29, 2017, 2:46 PM), https://www.theguardian.com/technology/2017/jun/28/canada-google-results-supreme-court; Jeff J. Rogers, Google Must Delete Search Results Worldwide, Supreme Court of Canada Rules, Fortune (June 28, 2017), http://fortune.com/2017/06/28/canada-supreme-court-google/.

[4] Google Inc. v. Equustek Sols. Inc., 2017 CarswellBC 1727 (Can.) (WL).

[5] See Kent Walker, A Principle That Should Not Be Forgotten, Google In Europe (May 16, 2016), https://www.blog.google/topics/google-europe/a-principle-that-should-not-be-forgotten/

[6] International Covenant on Civil and Political Rights art. 19(2), opened for signature Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; Human Rights Comm., General Comment No. 34 on Article 19: Freedoms of Opinion and Expression, ¶ 15, U.N. Doc. CCPR/C/GC/34 (Sep. 12,2011) [hereinafter UDHR].

[7] Human Rights Council Res. 32/38, U.N. Doc. A/HRC/32/38, at ¶ 6 (May 11, 2016).

[8] ICCPR, supra note 6, at 178.

[9] UDHR, supra note 6, at 75 (emphasis added).

[10] H.R.C. Res 32/38, supra note 7, at ¶ 7; See, e.g., UDHR, supra note 6, at 71.

[11] Sunday Times v. United Kingdom, App. No. 6538/74, at ¶ 59, Eur. Ct. H.R. (1979), http://hudoc.echr.coe.int/eng?i=001-57584.

[12] See Human Rights Council 29/32, U.N. Doc. A/HRC//29/32, ¶ 36 (May 22, 2015).

[13] H.R.C. 29/32, supra note 12, at ¶ 36.

[14] See, e.g., Aaron Mackey, Corynne McSherry & Vera Ranieri, Top Canadian Court Permits Worldwide Internet Censorship, Electronic Frontier Foundation: Deeplinks Blog (June 28, 2017), https://www.eff.org/deeplinks/2017/06/top-canadian-court-permits-worldwide-internet-censorship.

[15] Google, 2017 CarswellBC 1727 at ¶ 41.

[16] MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048 (Can.).

[17] Google, 2017 CarswellBC 1727 at ¶ 3.

[18] Id. at ¶ 12.

[19] Id. at ¶ 44.

[20] Id. at ¶ 18.

[21] Id. at ¶ 20.

[22] See generally Reuters, supra note 3; Rogers, supra note 3.

[23] Case C-131/12, Google Spain SL v. Agencia Española de Protección de Datos, 2014 E.C.R. 314; Court of Justice of the European Union Press Release 70/14, An Internet Search Engine Operator is Responsible for the Processing that it Carries out of Personal Data Which Appear on Web Pages Published by Third Parties (May 13, 2014).

[24] Mark Scott, Google Fined by French Privacy Regulator, New York Times: Technology (March 24, 2016), https://www.nytimes.com/2016/03/25/technology/google-fined-by-french-privacy-regulator.html?_r=1.

[25] Scott, supra note 24.

[26] National Commission of Informatics and Civil Liberties Deliberation No. 2016-054, Imposing a Monetary Penalty Against Google Inc. (March 10, 2016).

[27] Brief of Intervenor Electronic Frontier Foundation, Google Inc. v. Equustek Sols. Inc., 2017 CarswellBC 1727 (Can.) (WL) (No. 36602) [hereinafter EFF Brief].

[28] EFF Brief, supra note 27, at ¶ 1-3.

[29] See, e.g., Fisher v. University of Texas at Austin, 136 S. Ct. 2198, 2214 (2016)

[30] EFF Brief, supra note 27, at ¶ 26.

[31] EFF Brief, supra note 27, at ¶ 27.

[32] EFF Brief, supra note 27, at ¶ 28.

[33] Google, 2017 CarswellBC 1727 at ¶ 53.

[34] See generally ICCPR, supra note 6, at 173; UDHR, supra note 6, at 71.

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