Tag Archive | "international law"

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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China’s Trap in the Waters Around Guam

Photo Credit: UNCLOS, CIA

The beginning of August 2017 saw the United States and the Democratic Republic of North Korea (DPRK) trading rhetoric that appeared to threaten nuclear war. It is possible, however, that the entire situation was an international legal trap laid for the United States. What at first instance appears to be two irrational state actors threatening nuclear war may instead have been a plan to undermine U.S. interests in the western pacific and to bolster China’s claims of sovereignty over its expansive view of the waters in the South China Sea.

The rhetoric between the two states, and, in particular, the specifics of the threats hurled between the two states provide important clues.

On one hand, the United States gave few specifics, but threatened to end the DPRK regime, to destroy its people, and to unleash “fire and fury” on the peninsula.

On the other hand, the DPRK’s statements were specific. They might, at first blush, appear to give the United States whatever justification it might need to justify a preemptive attack against Pyongyang. After all, it did say that it was considering enveloping Guam in fire with ballistic missiles. However, in later providing its specific plans to launch four missiles set to land 30 to 40 kilometers (roughly 19 to 25 miles) off the coast of Guam, the DPRK may have laid a trap for the United States. By providing specifics, the DPRK simultaneously increased the heat of its rhetoric and pulled away any legal justification the United States might have to attack the DPRK, even under the specious Bush-era arguments for preemptive attack.

This is so because the DPRK’s statement arguably did not threaten the territory of another State. The DPRK specifically stated that it would target the missiles to land in the contiguous zone, i.e., international waters, near Guam. In doing so, the DPRK’s statement was clear that its missiles were not intended for the U.S. mainland, Guam, or even U.S. territorial waters (which extend only 12 miles offshore).

UNCLOS defines the contiguous zone as a zone of waters between 12 and 24 miles off shore. The contiguous zone is beyond the territorial waters, which extend 12 miles past the shore, and is part of the Exclusive Economic Zone (EEZ), which extends 200 miles offshore. As a part of the EEZ, the contiguous zone is considered “international waters” wherein states have limited sovereign rights in contrast to “territorial waters,” where a state retains most of its territorial rights and jurisdiction. In the contiguous zone, between 12 and 24 miles offshore, a state has the right to “prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea;” and to punish infractions of these rules. These rights also include the rights of the EEZ, which almost entirely revolve around the rights of mineral extraction and fishing. For the purposes of use of force and self-defense, however, the contiguous zone and the EEZ do not constitute the territory of a state.

The U.N. Charter prohibits the use of force except in the case of self-defense or U.N. Security Council approval (preemption, responsibility to protect, and other justifications for force are almost always backed up with additional arguments for why the proposed use of force is not a violation of Article 2). The text of article 2 specifically prohibits “threat[s] or use of force against the territorial integrity” of another state.

The rights of states are severely limited in their contiguous zones and EEZ. However, China has attempted to assert expansive rights over the South China Sea including some territorial rights in its contiguous zone and EEZ, as well as an expansive definition of its EEZ based on various outcrops of coral to which it lays claim, such as the Spratleys.

The United States, China’s neighbors, and the international community at large have consistently held that China does not have territorial rights in the areas more than 12 miles off its coasts and that some of the islands, many of which China has built up into actual man-made islands, are not “islands” for the purposes of defining China’s waters under UNCLOS. Indeed, during the war of words between the United States and DPRK, the USS McCain sailed through the South China Sea in a freedom of navigation operation in protest of China’s argument of territorial control over the water around the Spratleys.

China’s announcement of its neutrality in this matter should thus be viewed suspiciously. China’s agreement with the DPRK is that it is not obligated to participate in wars that the DPRK starts. If the missiles fall into international water, and the United States were to react by attacking the DPRK, China would be able to frame the event in a way that cast both the DPRK’s actions as an act of aggression, removing their obligation to join in self-defense, and the U.S. attack as an illegal overreaction to an act that never touched U.S. territory.

Chinese neutrality should thus be read as one giving the DPRK notice of the consequences of hitting U.S. territory or territorial waters, and not that China will not help Pyongyang retaliate against the United States if the missiles were to fall harmlessly into Guam’s contiguous zone. With its statement of neutrality, China gives the Trump administration and U.S. public hollow reassurances, and a direct warning to Pyongyang not to miss its mark.

There were at least two possible scenarios where China would emerge as the victor from this interaction:

  • There was no attack but the United States asserted ultra vires territorial rights in international waters

In this scenario, by threatening an act which did not extend to the territory of the United States, the DPRK would incite the United States to assert territorial rights over the international waters around Guam. This U.S. assertion of rights immediately bolsters China’s claims in the South China Sea and increases the possibility that China may justify the use of force against U.S. vessels attempting freedom of navigation operations through Chinese claimed waters. In this scenario, any U.S. attempts to hem in China’s illegitimate and illegal territory grab in the South China Sea is undermined by U.S. statements in response to the DPRK.

  • The DPRK launched its missiles and they landed in international water, the U.S. retaliated with an attack on the DPRK

In this scenario, the above also comes to pass but the DPRK demonstrates conclusively that while it may be a rational actor it is also China’s patsy in its aspirations for global power. If the United States were to follow through with an attack on the DPRK, China would be the state with both the moral and legal high ground to begin to build a coalition against the United States in the international community. We can assume that this is already happening as China moves to expand economically into Africa and South America, but a catastrophic event such as an attack on the DPRK would serve to immediately crystalize resistance to U.S. actions worldwide. China, and, to a lesser extent, Russia would see immediate and long term gains from such a scenario while the United States would find itself alienated from its allies, not least of which, South Korea, which would bear the brunt of the DPRK’s response.

Each of these scenarios reduces American power, both militarily and diplomatically, around the world. They increase China’s position in the world and push away allies and potential allies against China and even the DPRK.

As of this writing, it is relatively fortunate that only the first scenario has come to pass, but in asserting expanded rights in the Contiguous Zone, the United States has still given China ammunition to use in the next flare up over the South China Sea.

The only rational way forward is for the United States to reduce the temperature of the rhetoric and to attempt diplomatic solutions while also challenging China’s broad assertions of rights in the South China Sea. Using force against the DPRK or asserting territorial rights in Guam’s contiguous zone undermine U.S. policies and interests in both arenas.

In the end, though, the United States must recognize the limits of knee jerk reactions and bluster and take full advantage of the capabilities of U.S. diplomatic assets in the State Department and in other agencies. The problems that the United States faces do not all come with military solutions, and issues of international relations and policy that appear simple on their face seldom are in reality. As the saying goes, the United States needs to be playing chess, not checkers, and never more so than when nuclear weapons are involved.

 

William Kent is a 2014 graduate of the Sturm College of Law and holds a J.D., Masters of Law in International Business Transactions, Certificate in International Law, and Masters in Middle East Studies.  He currently lives in Washington, D.C.

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Legalization of soft-drugs: views from the U.S. and Italy

Photo Credit: Judith Hartmann

Photo Credit: Judith Hartmann

On June 14, 2017, legal experts from the US and Italy gathered at the Law School of the University of Naples “Federico II” to discuss the challenges and perspectives of soft-drugs legalization, in the context of the inaugural colloquium of the international convention set up between the nearly 800-year old Italian law school and Denver University Sturm College of Law.

The European Drug Report 2017, published just a few days before the colloquium by the European Monitoring Centre for Drugs and Drug Addiction, an agency of the European Union tasked with monitoring the supply, marketing, and usage of drugs in Europe, revealed that cannabis is the most widely consumed type of drug in the Old Continent, with as many as one out of five young adults (15-34 years) making use of it over the last twelve months in certain European countries such as Czech Republic, Italy, Spain, and France.

Although the Report confirmed that the health problems associated with cannabis use are significantly lower than those associated with other drugs, cannabis remains the most commonly seized drug in Europe, accounting for over 70 % of seizures and for 57 % of both supply and possession criminal convictions. Following recent changes in the regulatory framework for cannabis in certain parts of the Americas, a lively debate on the legalization of soft-drugs has sparked off in several EU Member States, whose cannabis policies currently range from restrictive models to the tolerance of some forms of personal use.

In this connection, Professor Sam Kamin, Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver Sturm College of Law, provided a detailed examination of the legal status of soft-drugs in the US, where an increasing number of states have legalized marijuana for medical and recreational use, whereas federal law still criminalizes the production, sale, and possession of that substance, in keeping with the international commitments undertaken in the UN framework.

Professor Kamin, who served on Governor John Hickenlooper’s Task Force to Implement Amendment 64 and the ACLU of California’s blue ribbon panel to study marijuana legalization, described the legal status of marijuana in the US as “untenable” and emphasized the uncertainty it gives rise to for firms and users in relation to aspects of federal law ranging from banking regulations to federal benefits. Professor Kamin also expressed the wish that the US would draw inspiration from other countries, such as Uruguay and Canada, which embraced soft-drugs legalization in a more consistent and principled manner.

In this connection, Judge Massimo Perrotti, sitting on the Sixth Criminal Chamber of the Naples Court of Appeal, described the legal status of marijuana under Italian law, swinging from a soft-prohibition model (the Iervolino-Vassalli Law of 1990) to a stricter one (the Fini-Giovanardi Law of 2006, which placed soft and hard drugs on equal footing) and then back to lenient criminalization, as in 2014 the Constitutional Court struck down the Fini-Giovanardi law causing the previous law on controlled substances to come back into force.

Judge Perrotti, who previously served as advisor on legislative affairs to the Italian Ministry of Justice, then examined the challenges that patients face in securing access to marijuana for medical use and the various soft-drugs legalization proposals currently being examined by the Italian lawmakers, notably the Giachetti Bill, which seeks to decriminalize home cultivation up to 5 plants per person and personal possession up to 5 grams (about 0,17 ounces) and to set up a State monopoly for the production and sale of certified-quality cannabis products for recreational use.

In this respect, it is noteworthy that, unlike US federal law, EU Law strongly defers to its Member States‘ marijuana policies. Framework Decision 2004/757/JHA, in particular, only requires EU Member States to criminalize cultivation of cannabis “when committed without right”; also, that item of EU legislation expressly excludes from its scope cultivation for “personal consumption as defined by [Member States’] law”, yet it points out that such a carve-out “does not constitute a Council guideline on how Member States should deal with” the issue. Moreover, in Josemans, the European Court of Justice took the view that combating drug tourism constitutes a legitimate interest enabling Member States to impose restrictions on free movement within the EU internal market, thus upholding the legality of Netherlands municipal rules banning non-residents from coffee-shops where the sale of soft-drugs is tolerated.

In addition to law school students from the University of Naples “Federico II” and the University of Denver’s Study Abroad Program directed by Professor Celia Taylor, several attorneys, academics, and advocacy groups attended the colloquium, which received the patronage of the US-Italy Fulbright Commission, a binational entity funded by the US Department of State and the Italian Ministry of Foreign Affairs.

Amedeo Arena is an Associate Professor of European Union Law at the University of Naples “Federico II” School of Law, where he serves as Coordinator of the academic cooperation agreement with Denver University Sturm College of Law

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Understanding the Syrian Refugee Crisis and How Refugees Receive Asylum in the United States: Part 3

Photo Credit: AP Photo/David Zalubowski

This third installment focusing on Syrian refugees will address what a refugee goes through when he or she finally makes it to the United States and what we, especially those of us in Colorado, can do to help.

Once a refugee has passed the security clearance screening, they then fly to one of five designated airports in the United States. Border Protection checks their documents and conducts additional security checks. Then, the refugee is assigned to a refugee relocation services program. In Colorado, the Colorado Department of Human Services oversees the refugee relocation programs conducted by the Lutheran Family Services and the African Community Center.

These two programs help refugees find a place to live, work, and study. They also help them learn English, find medical care, and provide lawyers who can help with their legal questions. In 2013, the last year for which statistics have been released, 1,708 refugees arrived in Colorado. They live in several towns and cities throughout the state, but mostly along the front-range, with the majority living in Denver. In 2016, nearly 50 Syrian refugees arrived in Colorado. Again, it bears repeating, in order for a refugee from Syria to enter the United States, that person must go through 18-24 months of extreme vetting. That vetting determines if the person poses any potential risks to the country. If a risk is discovered, they are not allowed in.

Once a refugee is settled and integrated into a community, that refugee creates an economic benefit to the community. A recent study showed that for every $120-$126 of aid given to a refugee in Rwanda, that same refugee created an annual real income benefit of $205-$253 to the community. Utica, New York, a town that once saw dwindling numbers of residents and sustained economic decline, has now seen a turnaround because it has welcomed so many refugees.

Economist Jeffrey Sachs points out that while there are some negative consequences to hosting refugees in a community (they pay fewer taxes and generally rely on social services until they can become established), they also add economic benefits by bringing added skills to the workforce and earning less than what they could contribute to society as a whole.

Other cities, like Cleveland, have seen massive economic benefits in welcoming refugees. The city initially invested $4.8 million in resettling refugees. The economic benefit to the community resulted in $48 million, a 1000% return on investment. This is partly because refugees are often entrepreneurs who disproportionally create jobs and stimulate demands for new products and services in their local communities.

Having established that Syrian refugees are extremely vetted, are moving to Colorado, and, if they are like other refugees, will create an economic benefit to the community, the question then becomes, how can we help them? Both Lutheran Family Services and the African Community Center need volunteers that will meet refugees at airports and then drive them to their new homes. They need volunteers who can furnish their apartments, teach them English, and act as a local guide to help them become acquainted with their new homes.

 

David Coats is a staff editor on the Denver Journal of International Law & Policy.

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Understanding the Syrian Refugee Crisis and How Refugees Receive Asylum in the United States: Part 2

Image Credit: UNHCR

The first part of this three-part series explained what the causes of the Syrian Refugee Crisis are and where the crisis stands now. The second portion of this series will explore the process a Syrian refugee must go through to receive asylum in the United States. This is important information for all of us to know because of the confusion, lack of information, and fear associated with allowing refugees from this war-torn area into our countries. The intent of this article is to give a clear and unbiased overview of what a Syrian refugee must go through to receive asylum in the United States. This information could also be informative when discussing how, if, and why we should welcome refugees into our communities.

How do they apply?

All refugees apply for asylum through the United Nations High Commission for Refugees (UNHCR). The UNHCR is an international organization under the United Nations that protects and assists refugees. Under UNHCR guidelines, an applicant may qualify for resettlement in another country if: (1) a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group or political opinion can be demonstrated; (2) the applicant is outside of his or her country of nationality; and (3) the applicant is unable or unwilling to avail himself of the protection of that country. If such a person does qualify for asylum under the UNHCR’s standards, then that person will be referred to a third country for resettlement.

If that third country is the United States, the refugee must apply with the federal Resettlement Support Center and go through a rigorous 18-24 month screening process. During the rigorous screening process, officials investigate refugees to ensure the refugee’s story is legitimate and that the refugee will not pose a threat to the health or safety of the United States. The screening involves the participation of the U.S. State Department, the Department of Homeland Security (DHS), the Defense Department, the National Counterterrorism Center, and the FBI. These agencies double-check the refugee’s personal biographical statement and use biometric information to ensure the person’s story and identity are legitimate. Moreover, these agencies check for connections to known bad actors, outstanding warrants, and other information related to whether the person is a potential security risk. Refugees are also interviewed by DHS agents and medically tested for communicable diseases. In sum, seeking asylum is the most difficult and stringent way for a person to enter the United States.

What is different about the process for Syrian refugees?

For Syrian refugees the process goes one step further by requiring them to go through the Syrian Enhanced Review process where the refugee applicant’s file is further scrutinized for accuracy and veracity. The U.S. government added this extra step especially for Syrian refugees “due to the circumstances in Syria.” These circumstances obviously include the war, but also the fact that ISIS operatives are fighting in Syria. As many have observed, the biggest fear in allowing Syrian refugees into the country is the fear that an ISIS operative might pose as a refugee and sneak through the system and commit an act of terrorism in the United States. To prevent that possibility, the U.S. government created the Syrian Enhanced Review. Today, Syrian refugees are subject to the highest level of security checks of any category of traveler to the United States. If there is any doubt about the veracity of an applicant’s story, the applicant will not be admitted.

What next?

For the first several years of the Syrian Civil War the United States accepted a very small number of refugees. Up until last year, the United States received approximately 2,200 Syrian refugees while over 1 million fled to Lebanon. Last year, President Obama promised to increase the number of refugees to 10,000 by the end of the fiscal year (September 2016). That goal was reached in August 2016.

The United States is in a difficult situation. In a post 9/11 society, where fears of domestic and international terrorism abound, we must weigh the concern for safety with our duty to welcome and care for refugees. Indeed, welcoming refugees is a large part of the legacy of the United States. Given the dire circumstances and the difficulty in passing the test compared to the likelihood of a terrorist sneaking through, one must wonder if the screening process is too stringent? The high standards do screen out threats to public safety while nearly guaranteeing that any Syrian refugee that makes its way to the United States is not a threat. When Syrian refugees do pass the high standards set before them, what happens to them next and how can we be a part of it? That question will be answered in the next and final post, addressing what a refugee goes through when he or she finally makes it to the United States and what we, especially those of us in Colorado, can do to help.

 

David Coats is a staff editor on the Denver Journal of International Law & Policy.

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Understanding the Syrian Refugee Crisis and How Refugees Receive Asylum in the United States: Part 1

Photo Credit: EPA

The Syrian Refugee Crisis is not only a problem for residents in Europe and the Middle East; it is a problem for all members of the global community. The Syrian Refugee Crisis has become an issue in Europe and the Middle East because the war has created a massive influx of refugees who need food, shelter, and medical help. The crisis is a problem for the broader global community because all people have a duty to take care of each other, while also ensuring the health and safety of our communities. What are we to do when some nation-states/countries want to welcome a refugee and others are fearful the refugee might be a wolf in sheep’s clothing? This three-part series will explain the cause of the Refugee Crisis, the current stance on the situation, the process for Syrian Refugees seeking asylum in the United States, and finally, what we can do to welcome refugees while also ensuring our local health and safety.

What is causing it?

As with any crisis, there are several contributing factors to the Syrian Refugee Crisis. First and foremost is the civil war that has been raging on in the country since 2011. In the past five years, 11 million Syrians (roughly half of the Syrian population) have been killed or displaced because of the civil war. Currently, there are 4.8 million Syrian refugees in the world. While most of those fleeing the country have sought sanctuary in Lebanon, others have fled to neighboring countries like Jordan or Turkey. Other contributing factors to the crisis include Germany’s promise to accept asylum seekers, Syrian President Bashar Al-Assad’s conscription of practically all men under 30, and the underfunded international effort to address the situation.

What is the current status?

Currently, the EU has taken steps to quell the Refugee Crisis by making a relocation deal with Turkey. The EU and Turkey reached an agreement where Turkey will take many of the refugees in Europe and secure its western border in return for $7 billion from the EU. The EU started a pilot program where it will give Syrian refugees pre-paid Visa debit cards worth $30 a month. The hope for this program is that it will help fuel the local economy and meet some of the needs of refugees both in and outside of established refugee camps. It remains to be seen if and how this pilot program will be successful.

Where are the refugees going?

The vast majority of Syrian refugees remain in the Middle East. They are in Turkey, Lebanon, Jordan, Iraq, and Egypt, while roughly 10 percent have fled to Europe and far fewer have made their way to the United States and Canada. For those in the Middle-East, many live in refugee camps with worsening conditions, but many others live discreetly in urban centers, working odd jobs and trying desperately to make ends meet. With no end in sight for the Syrian civil war, the refugee crisis will only get worse before it gets better. The temporary solutions the surrounding communities pieced together to address the emergency influx are becoming unbearable permanent situations. The global community must find a solution addressing both the symptoms and the causes of the refugee crisis.

Whether living in a camp or in a city, many Syrian refugees are applying for asylum in Europe and North America. However, only a select few are chosen to resettle in the United States. How are they chosen, what screening processes do they go through and what happens to them when they arrive in the U.S.? These questions will be explored in the next two articles.

 

David Coats is a staff editor on the Denver Journal of International Law & Policy.

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RICO Did Not Intend to Rebut the Presumption Against Extraterritoriality

Photo Credit: AP Photo

On June 20, 2016, the Supreme Court of the United States handed down its opinion in RJR Nabisco, Inc. et al. v. European Community et al., recognizing that in some cases the Racketeer Influenced and Corrupt Organizations Act (“RICO”) may have extraterritorial application. The Court further held that in order to bring a private cause of action, RICO requires that the plaintiff allege an injury to business or property suffered on U.S. territory. Since its enactment in 1970, RICO has become a powerful tool designed to fight organized crime. It allows for prosecution and civil causes of action for racketeering activity, such as fraud, embezzlement, money laundering or unfair trade practices.

To assert a civil claim under RICO, a plaintiff must establish that the defendant engaged in a pattern of racketeering activity connected to an enterprise. Furthermore, if a plaintiff successfully proves the defendant utilized an “enterprise” to commit racketeering, the plaintiff is entitled to recover treble damages and attorney’s fees. RICO prohibits any person from participating in a racketeering activity “to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” 18 U.S. Code § 1962 (b).

Pursuant to the statute, the term “enterprise” consists of “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” Id. § 1961(4). The statute provides a long and broad list of offenses that constitute “racketeering activity” (also known as predicate acts), such as mail and wire fraud, counterfeiting, murder, kidnapping, gambling, robbery, bribery, and extortion. An enterprise is generally held liable under the statute if it engages in two or more predicate acts of racketeering.

RICO has also been utilized by many plaintiffs as a vehicle for transnational litigation. Although the statute provides detailed information on what constitutes racketeering activity, neither legislative history nor the statute itself clearly indicates whether Congress intended to extend RICO’s coverage beyond U.S. territory. The Supreme Court addressed the question of RICO’s extraterritorial reach in its decision in RJR Nabisco.

In RJR Nabisco, the European Community and twenty-six of its member states filed a claim in the United States District Court for the Eastern District of New York, in 2000, alleging that the RJR Nabisco (former food and tobacco giant) (“RJR”) violated RICO by participating in an international money laundering scheme, providing material support to foreign terrorist organizations, and engaging in mail fraud, wire fraud and Travel Act violations. The European Community alleged that the money laundering scheme consisted of several transactions: foreign drug traffickers smuggled narcotics into Europe and sold them for euros that were then traded for other foreign currencies and subsequently used to purchase cigarettes from cigarette wholesalers, who in turn laundered the money by purchasing the cigarettes from RJR and shipped those cigarettes into Europe. These activities, the plaintiffs claimed, harmed European governments in various ways, including loss of tax revenues and increased law enforcement costs. The Eastern District of New York dismissed the complaint, holding that “RICO is silent as to any extraterritorial application” of the statute to actions that took place abroad.

The Second Circuit reversed the District Court’s decision, concluding that Congress had clearly manifested an intent for RICO to apply extraterritorially in these circumstances. The court reasoned that “RICO applies extraterritorially if, and only if, liability or guilt could attach to extraterritorial conduct under the relevant RICO predicate,” and, because predicate offenses, such as money laundering and providing material support to foreign terrorists, applied extraterritorially, Congress intended for RICO to apply extraterritorially as well.

The Supreme Court granted certiorari on the issue of whether RICO applies extraterritorially. The Court noted that generally there is a legal presumption against extraterritorial application of U.S. laws. In other words, unless Congress has clearly expressed a contrary intent, federal statutes can only be enforced on U.S territory. Therefore, to decide whether RICO applied extraterritorially, the Court utilized a two-part analysis. Under the two-part analysis, the court must first determine whether there is an indication that Congress intended for the statute to create a private right of action for foreign injuries. If there is no such intent, the Court should apply the second part of the test, which examines, whether the statute’s private right of action applies to business or property injuries and damages suffered in foreign countries.

The Court found that by incorporating some of the predicate offenses involving foreign conduct into the Statute, Congress gave a clear indication that RICO’s substantive provisions were intended to apply extraterritorially. The Court was careful to note that “[t]he inclusion of some extraterritorial predicates does not mean that all RICO predicates extend to foreign conduct.” In analyzing the second part of the test, the Court concluded that because the alleged injuries to business or property occurred outside of the United States, RICO’s private right of action does not overcome the presumption against extraterritoriality.

The Supreme Court’s holding in RJR Nabisco was not surprising in light of prior decisions. Since 2010, the Court has issued several rulings which limited the extraterritorial application of several U.S. statutes, including the Alien Tort Statute, the Torture Victim Protection Act, and the Securities and Exchange Act. A brief summary of two cases, Kiobel v. Royal Dutch Petroleum Co. and Morrison v. National Australia Bank Ltd., provided below, examine the facts and reasoning behind the Supreme Court’s decisions to limit the extraterritorial application of the Alien Tort Statute and the Securities and Exchange Act.

  1. Morrison v. National Australia Bank Ltd.

On June 24, 2010, in Morrison v. National Australia Bank Ltd., the Supreme Court concluded that claims under § 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) are not available for securities purchased on foreign stock exchanges.

In Morrison, National Australia Bank Limited (“National”), a foreign bank whose shares were traded on foreign securities exchanges, purchased HomeSide Lending, Inc. (HomeSide), a U.S. – based mortgage servicing company. Sometime between 1998 and 2001, National and HomeSide overstated the value of HomeSide’s mortgage-servicing rights. The inflated values were disseminated through National’s financial statements. These financial statements represented to the public that the mortgage servicing company was a success. After National announced that the valuation model was incorrect, a group of the bank’s international shareholders (who bought their shares on foreign securities exchanges) brought lawsuit against both National and HomeSide in the U. S. District Court for the Southern District of New York, claiming violations of §10(b) of the Exchange Act. § 10(b), also referred to as the anti-fraud provision, makes it unlawful for any person “to use or employ, in connection with the purchase or sale of any security… any manipulative or deceptive device or contrivance” that would violate the rules and regulations prescribed by the Securities and Exchange Commission. The District Court dismissed the complaint for lack of subject-matter jurisdiction. The Second Circuit Court of Appeals affirmed the District Court’s ruling. The Supreme Court granted certiorari to decide whether U.S. courts had jurisdiction over private claims pursuant to §10(b) of the Exchange Act.

For the first time, the Court addressed the question of “foreign cubed” cases brought by foreign plaintiffs against a foreign company in relation to a transaction that took place outside of the United States. The Court held that §10(b) does not apply to transactions in securities listed on foreign exchanges. The Court further held that the presumption against extraterritoriality prohibited domestic courts from extending U.S. securities laws beyond U.S. soil. The Court reasoned “[i]t is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States[…] When a statute gives no clear indication of an extraterritorial application, it has none.”

  1. Kiobel v. Royal Dutch Petroleum Co.

On April 17, 2013, the Supreme Court issued a landmark decision in Kiobel v. Royal Dutch Petroleum Co., holding that a presumption exists against extraterritorial application of the Alien Tort Statute (“ATS”). For many years, ATS allowed foreign citizens to sue other foreign citizens in the United States for the violations of international law that occurred abroad.

The Kiobel Court ruled that ATS does not generally permit claims based on illegal conducts that took place outside of the United States. The Court explained that in order to overcome the presumption against extraterritoriality, it is necessary that the alleged violations “touch and concern the territory of the United States” with “sufficient force.”

In Kiobel, a group of plaintiffs, residents of the Ogoni region of Nigeria, brought a lawsuit against British, Dutch, and Nigerian oil corporations alleging that the companies aided and abetted the Nigerian government in committing crimes against humanity. The Supreme Court granted certiorari on the question of corporate liability; however, the Court then shifted its focus to the question of the ATS’s extraterritorial application. The Court noted that the statute does not apply extraterritorially unless the legislature explicitly indicated otherwise. After examining the text, history, and purpose of the ATS, the Court concluded that nothing in the text of the statute suggests an intended extraterritorial reach. Further, the Court concluded that ATS claims must “touch and concern” the United States with “sufficient force” to displace the presumption against extraterritoriality.

The opinions in these three cases are reasonable because the Court was trying to limit the jurisdictional overreach of U.S. laws. By curtailing the extraterritorial scope of the ATS and RICO, the Court intended to eliminate the risk of imposing U.S. laws on conduct that occurred within the jurisdiction of a foreign country. Moreover, the Court’s decisions are consistent with the universally acknowledged concept of sovereign equality, which requires mutual respect for the sovereignty and national identity of all States.

 

Jeyla Zeynalova is a staff editor on the Denver Journal of International Law & Policy.

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University of Denver Sturm College of Law

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