Tag Archive | "international law"

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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Time to Rethink the Continuing State of Emergency in Turkey

Photo Credit: Daily Sabah

Photo Credit: Daily Sabah

After a failed military coup in Turkey on July 15, 2016, the Turkish government decided to declare a state of emergency to take required measures in the fight against the putschists, and return to normalcy as soon as possible. Considering the extension of the state of emergency to six months, and all measures taken in this period, this post brings up the controversial question of the legality of the continuing state of emergency and continuing accusations across the country.

 

Background and the Growing Process

On July 15, 2016, a group in Turkey’s armed forces attempted a military coup to seize control of the government. On July 21, 2016, after the coup failed, Turkish government declared a state of emergency for a period of ninety days pursuant to Article 120 of the Turkish Constitution of 1982, which provides:

“In the event of serious indications of widespread acts of violence aimed at the destruction of the free democratic order established by the Constitution or of fundamental rights and freedoms, or serious deterioration of public order because of acts of violence, the Council of Ministers, meeting under the chairpersonship of the President of the Republic, after consultation with the National Security Council, may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months”.

Following the failed coup, President Recep Tayyip Erdogan clarified that, “the state of emergency had been declared in Turkey … for a duration of [three] months with an aim to totally and swiftly eliminate the FETÖ/PDY (Gulenist Terrorist Organization/Parallel State Structure) terrorist organization, which attempted a coup, and all of its elements”. On October 19, 2016, Turkey’s parliament ratified a planned extension of the state of emergency for three additional months to crack down on everyone suspected to be followers of the putschists. On January 19 2017, the state of emergency was extended second time, and most recently extended a third time scheduled to end on July 19, 2017. According to Article 121 of the Constitution 1982:

“The [Grand National] Assembly [of Turkey] may alter the duration of the state of emergency, may extend the period for a maximum of four months each time at the request of the Council of Ministers, or may lift the state of emergency”.

With an emphasis on the necessity of a determinative and quick reaction to any acts of violence aimed at threatening or abolishing democracy in states, the contentious counter-measures taken by Turkish authorities after the failed coup require a discussion in the context of human rights considerations.

 

Assessing under the International Covenant on Civil and Political Rights (ICCPR)

After the failed military coup, the government started to arrest, imprison, and fire anyone connected with the putschists. However, detentions and firing of thousands of journalists and academics as a massive political purge under the state of emergency gave a different dimension to the government’s unbounded counter-measures.

Nonetheless, it’s incontrovertible that all enforcements of slander laws to members of opposing groups and critics, attacks on the independence of the judiciary, using media and other state resources in favor of the government, and censoring the internet websites, are employed as policies against putschists to return normalcy to the country cannot be conceded as justifications for fighting against putschists contrary to the international human rights considerations.

Relevantly, on September 23, 2003, Turkey ratified the 1966 International Covenant on Civil and Political Rights (ICCPR) as an attempt to ensure the protection of civil and political rights. With regard to the state of emergency, the ICCPR reads in Article 4(1):

“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”.

Clearly, a state of emergency is an extraordinary situation in which human rights and freedoms could be suspended temporarily. During the state of emergency, governments have the right to detain and hold suspects without charge. Nonetheless, there are some other fundamental rights and freedoms stated in Article 4(2) of the ICCPR which could not be suspended under any conditions including the right to freedom of thought, freedom from arbitrarily being deprived of liberties, and freedom from torture and inhuman treatment or punishment. From this point of view, holding a large population of the Turkish society, including pro-Kurdish and main opposition Republican People’s Party members of parliament, academics, journalists, and ordinary citizens just because of opposing and criticizing the government’s policies –especially, its quest for constitutional amendments that will be voted on in the referendum on April 2017 on switching to a presidential system– and also infringing media freedom in the country could be considered as violation of Article 4(2) of the ICCPR and that could not be justified under any condition even if done as counter-coup measures. Furthermore, using the failed coup attempt as a cover-up to eliminate and a crackdown on any government opponents and critics regardless of the scope and objective of the coup leaders is a violation of freedom of expression and thought which cannot be derogated under any distressed situations such as the state of emergency. During the continuing state of emergency in Turkey, dismissing about 7,316 academics by the first half of January 2017 from their professions who criticized the government’s national policies or signed peace declaration criticizing curfews declared in Turkey’s predominantly Kurdish Southeastern districts in 2015 cannot be justified under any circumstances. In this sense, the mentioned counter-measures taken by the Turkish government against the society is clearly refusing the rule of law and fundamental rules of the ICCPR on a large scale.

 

Accusations Through the Broad Definition of Terrorism

According to the European Court of Human Rights, more than 5,000 cases were filed by Turkish nationals against Turkey relating to the post-coup purge. In the wake of the failed military coup in Turkey, the government launched a purge against alleged supporters of the coup leader Fethullah Gulen, including military officers, academics, and journalists.

As stated by Jonathan Cooper in his manual prepared for the Organization for Security and Co-operation in Europe (OSCE), “[A]n overly broad definition of terrorism can be used [only] to shut down non-violent dissent and undermine democratic society”. There is a similar tendency in Turkey. The counter-measures taken by Turkish authorities in the fight against putschists coup leaders, connected alleged suspects through a broad definition of terrorism.

The overly-broad definition of terrorism, and measures taken to fight against it, are very dangerous because it will impact a large layer of the society, especially ethnic and religious minority groups, peaceful critics, and opponents, by sabotaging their fundamental human rights and liberties, including the right to freedom of expression. Although the Turkish President has said that the main objective of the state of emergency is the total elimination of the “Gulenist Terrorist Organization” and its elements that attempted a military coup. thousands of Turkish scholars were arrested during the state of emergency on a charge related to supporting the terrorist organization, including statements that do not clearly provoke or incite any act of violence. Relevantly, interpretation and application of laws by sabotaging non-derogable fundamental human rights including freedom of expression, freedom of thought, and freedom from being arbitrarily deprived of liberties are all the steps taken to broaden the scope of terrorism.

To be clear, Turkish authorities do not consciously separate terrorist actions from general criticism, or political and ethnic dissents in the country. Therefore all measures were taken under the state of emergency, and within the limits of the international obligations have prepared the grounds to suppress the right to freedom of thought and expression in violation of the rule of law. In simple words, in order to prevent legitimate exercise of the fundamental and non-suspendable human rights, Turkish authorities criminalize not only the acts that are properly accepted as terrorist actions in nature, but also any lawful statements, criticism, demonstrations, meetings, and any other attitudes that do not fall within the scope of terrorism under any circumstances.

It is very clear that Turkish authorities, by defining “criticizing the government’s policies” and “clarification of the opposing views” as terrorist actions have moved away from the main objective of the continuing state of emergency in Turkey. By contrast, all of these attitudes of Turkish authorities towards a large number of the society, mainly academics and journalists, are the significant steps in the direction of restricting democracy and freedom of expression and thought.

 

Saeed Bagheri is a faculty member at Akdeniz University in Turkey with a Ph. D in Public law and a Master’s of Human Rights Law.

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Venezuela in Crisis: A Socialist Dystopia

Caracas Dystopia

Photo Credit: Federico Parra |AFP | Getty Images

City-wide protests have occurred daily throughout Venezuela, a politically divided and economically destitute country, which was once South America’s wealthiest nation. Police meet protesters with rampant arrests, tear gas, and rubber bullets. Since the beginning of April, hundreds of thousands of Venezuelans have protested President Nicolás Maduro’s socialist government and its perpetration of the nation’s ever-worsening economic crisis. Initially comprised of students, youth, and members of the middle class, the opposition movement’s base grows daily. As the quality of life in Venezuela continues to spiral, the opposition increasingly gains support from those once faithful to the socialist agenda, the lower class. The sustained global drop in oil prices and prolonged drought have only worsened matters for the public, who struggle daily to obtain essentials like food and medicine. Protesters demand new elections and release of political prisoners, hoping that a change in the socialist leadership will end the crisis.

Since the mid-20th century, petroleum extraction and exploitation have been the foundation of Venezuela’s economic structure. The Venezuela of the 1950s was poised to be a major player in international petroleum exportation; intent on sembrando el petróleo (sowing the oil), the nation relied on its massive oil wealth to advance society. To maximize oil exports, investors financed alternative energy production for domestic servicing. Most notably, the Guri Dam generates 60% of Venezuela’s energy through hydroelectric power.

In the early 2000s, the late president Hugo Chávez leveraged Venezuela’s massive oil wealth and the global upswing in oil prices to create an unsustainable social welfare state. He implemented sweeping nationalization of Venezuela’s economy, primarily in the oil sector, in pursuit of his socialist utopia. Chávez expanded the state-owned oil company Petróleos de Venezuela, or PDVSA, and its dominion over oil extraction and production. Chávez’s frenetic charisma, combined with frequent government handouts, projected an image of resolute national prosperity while masking the regime’s internal corruption. Many Chavistas still await the ‘Bolivarian Revolution’ that Chávez promised.

Maduro, Chávez’s successor, inherited an economy wholly propped up by the nationalized oil industry. Maduro’s financial mismanagement and authoritarian actions set the nation on a fast-track toward recession, even prior to the 2014 collapse of global oil prices. Domestic oil production is dropping at an accelerated rate, with drilling sites and refineries falling into disrepair. The government and PDVSA are strapped with nearly $60 billion in international debt in the form of short-term bond payments. Meanwhile, the government is failing to import food, medicine, and other essentials at a sufficient rate to meet the dire demand. With inflation rates just over 800%, most Venezuelans are unable to afford food and many report significant weight loss. Waiting hours on end for food rations at government controlled food-distribution centers is an every-day reality. Additionally, the Guri Dam is largely out of commission due to a prolonged drought and the government imposed a two-day workweek to cope with frequent power outages. Venezuela’s economy is in abysmal shape and the prospects of a positive change are wholly dependent upon an upswing in global oil prices.

A highly controversial supreme court ruling sparked the most recent round of protests in Venezuela. The nation’s supreme court is notoriously beholden to Maduro and the socialist regime established by Chávez. Meanwhile, the opposition-controlled National Assembly represents the sole counter to the United Socialist Party’s total control over the government. On March 31, 2017 Venezuela’s supreme court stripped the National Assembly of its legislative, justifying this power-grab by holding the National Assembly in contempt of the laws of the nation. Three members of the National Assembly face accusations, by President Maduro, of administrative impropriety in winning their elections, thus enabling the supreme court to hold the entire legislature in contempt. The supreme court was set to take over all responsibilities and functions of the legislature. Domestic and international condemnation were quick to criticize this decision, a move that many considered “a rupture in the constitutional order” and Maduro’s attempt to create a “petty dictatorship.” In the face of such scrutiny, the supreme court rolled back some of its decision on April 1, however, President Maduro retains unfettered power “to enter into joint oil ventures without congressional approval.” One faction of the opposition considers the rollback further proof that the supreme court is in Maduro’s pocket, while others believe it reveals cracks within the USP’s party-loyalists.

Food scarcity and undemocratic power grabs will be determinative of Maduro’s power retention in 2017. Those loyal to Chávez’s socialist revolution grow disillusioned by the day as they face food shortages and soaring inflation with no prospect of change. Maduro’s regime faces international, regional, and domestic pressures to abide by Venezuela’s constitutionally democratic roots. The call for new elections intensifies as the opposition’s support increases and the nation’s economic crisis worsens. A newly elected official, however, will have to confront the economy’s strict oil dependence and determine how the nation can diversify to succeed in the 21st century. Regardless of any political changes, without an upswing in global oil prices, the crisis will only worsen, violating international human rights norms in the process.

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

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Tobacco Trademarks in Peril: Australian Courts Can’t Be Bothered

IPM_122634091

See: IP Magazine

The unreasonable expropriation of intellectual property or the advancement of public health? This was the question posed by Philip Morris Asia Limited v. The Commonwealth of Australia.

In 2011, Australia passed its “plain packaging legislation,” creating restrictions on the fonts, size, colors, and location of tobacco brand marks on product packaging. The legislation also requires enlarged health warnings and creates limitations on the quantity and color of cigarette products per package. Needless to say, tobacco companies across the world were outraged.

Philip Morris Asia (“PM Asia”), a Hong Kong corporation, owns Philip Morris Australia (“PM Australia”) and PML, both incorporated in Australia. PML owns a whole slew of tobacco trademark licenses that were negatively impacted by Australia’s plain packaging legislation. PM Asia brought suit under the 1993 Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments (“BIT”). Its primary argument was that the legislation’s trademark limitations unreasonably expropriated the value of PM Asia’s investments in Australia. The Commonwealth responded with a thoughtful and solid justification for its legislation as a means to protect the public health of its citizens. The government also convincingly alleged that PM Asia was likely abusing its power under the BIT, in light of its awareness of Australia’s ongoing efforts against tobacco sales. So who has the more convincing argument?

On the procedural front, this case most favorably leans towards Australia. PM Asia had the ability to consider any potential economic impacts to its business prior to its acquisition of PM Australia and PML given its awareness of Australia’s ongoing efforts against tobacco sales.  It, therefore, cannot argue that its intellectual property or the value of its Australian investments has been expropriated due to the plain packaging legislation. This prior knowledge will likely be seen as an abuse of power under the BIT.

But in a broader sense, it’s worth questioning whether Australia is overreaching its bounds as a regulator by unreasonably inhibiting consumer choice. Is it reasonable for a government to dictate the consumption of social vices by its citizens?

To begin purely in the realm of philosophy, on one end of this dispute is the claim that such vices (e.g., gambling, alcohol, tobacco) exist in the market simply because there is a demand for it. If citizens want to consume such products and/or services, that is their choice, and governments should not inhibit the free will of its citizens. On the other end of the spectrum is the contention that the government was created for the sole purpose of enhancing the quality of its citizens’ lives by creating order, a system of checks and balances, levying taxes, and providing social welfare services. Vices such as smoking inhibit citizens’ quality of health. Furthermore, private corporations solely concerned with profits will do whatever is necessary, by way of catchy advertising and alluring products, to exploit the weaknesses of human character. It is, therefore, the government’s responsibility to protect the citizenry from such deceit through legislation like the one in question in this case.

There is no easy middle ground in this case. Therefore, I think it would be wise to step away from vices and social conduct, and turn, instead, to the role of intellectual property in international business. The plain packaging legislation can, in many ways, be seen as giving a government broad-reaching authority over international trademarks. This, I believe, is a more easily settled debate. To take away a corporation’s right to use its own distinguishing mark, over which it has a legal right to exclude use by others, strips it of its ability to engage with its consumers. The entire concept of brand loyalty becomes compromised. To limit intellectual property use in an industry often burdened with social stigma can serve as a starting point for further and more restrictive regulation of intellectual property in other industries. There is no such thing as moral utility in the world of intellectual property law. To keep it as such is the necessary tradeoff for promotion of innovation and advancement globally.

References

Philip Morris Asia v. Australia, Case No. 2012-12, Notice of Claim, (UNCITRAL Jun. 27, 2011).

Philip Morris Asia v. Australia, Case No. 2012-12, Australia’s Response to the Notice of Arbitration, (UNCITRAL Dec. 21, 2011).

 

Shirin Lakhani is a 2L JD/MBA candidate at University of Denver Sturm College of Law and staff editor on the Denver Journal of International Law and Policy.

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Trump Versus the World

Photo Credit: Skye Gould/Business Insider

Photo Credit: Skye Gould/Business Insider

With the recent change of government in the United States (“U.S.”), there have been considerable reactions on the international level. To begin, many nations have expressed their incredible disdain for the choice of president, ranging from petitions to protests to motions to reduce trade with the U.S. Second, there is discussion of there being improper relationships between the U.S. government and the Russian Federation government, creating suspicion amongst the domestic population. Third, the executive orders resulted in outrage both domestically and internationally. Therefore, if the current US government continues to remain in power, it may result in broken treaties, sanctions, or worse, war.

During the presidential campaign in the U.S., many nation-states, began to discuss the future of their own nation with their political relation to the U.S. if Trump were to win the presidency. In the United Kingdom (“U.K.”), a petition was launched by a freelance journalist, Suzanne Kelly called for the banning of Trump and thus, the petition was taken to parliament for debate.[1] The parliament carried out heated discussions in regard of the whether to ban Trump from ever visiting the U.K. in response to the petition.[2] Many parliament members declared Trumps’ words as hate speech and feared how his ideas would increase tension between different communities[3]. There are some parliament members that are in support of Trump or in support of merely letting the U.S. determine their own fate.[4] After the election, despite the invitation to Trump from Prime Minister May, the Speaker of the House and other parliament members continued voicing their disapproval of the president, leading to the delay of any potential visit by Trump.[5] In the end, the U.K. government will have to determine whether a visit or ban will bring greater consequences to their country.

Other nations, such as Mexico, have taken more drastic responses by protesting the US presidency and the Mexican President himself, refuses to meet with Trump after heated tweets between the two parties.[6] Also, Trump desires to either renegotiate NAFTA or completely remove the U.S. as a party because of his belief that it sends U.S. jobs to Mexico, further infuriating the people of Mexico.[7] Not only does Trump preach that the Mexicans are stealing U.S. jobs, but he promised to build a wall with the Mexican tax dollars.[8] In response, both the Mexican government and the people came out in force against Trump.[9] On February 12, an estimated 20,000 protesters took to the streets in Mexico City to voice their objection to the U.S. president.[10] Organizers of the event stated, “they wanted to send a message that Mexico was united against Trump.”[11] The government appeared to heed their people’s displeasure of the U.S. president and set in motion a bill that would sever the corn trade with the U.S. and instead trade with Brazil and Argentina.[12]  With Mexico being the third largest goods trading partner, continued unflavored actions taken by Trump will only further hurt the U.S. rather than Mexico.[13] Unfortunately, if Trump continues his path of destruction, both the U.K. and Mexico may only be the beginning of allies turning against the U.S..

With the recent resignation/firing of Flynn, the former National Security Advisor to Trump, continued rumors regarding Trump and many other republican members being involved with the Russian government.[14] After Trump was declared the winner of the U.S. presidency, rumors began about the election being rigged with the assistance of Putin and his oligarchy, which eventually were proven valid.[15] The Obama Administration enforced sanctions against Russia for their violation of the U.S. democracy system, but with evidence of Flynn and Trump communicating with the Kremlin both after the election and inauguration, there are concerns for U.S. national security.[16] Continuous investigations have been performed on the Trump presidency and personnel, revealing more and more conveyance with the Kremlin, however Trump continues to deny any involvement or knowledge the actions taken, regardless of the mounting evidence.[17] Congress continues their debate and probing of Trump and his people, however, Trump criticizes them heavily for such actions, declaring those scrutinizing him “un-American”, increasing the mounting tension between the two branches of government.[18] However, with the recent discovery of the Russian spy ship off the eastern coast, both government officials and the public grow weary of Trump and his intentions despite his declaration of having no contact with Russia.[19] Debates are occurring all over the U.S. to determine how to respond to the ship and the high likelihood of Trump’s involvement with Putin and other Russian personnel.[20] Unfortunately, with no middle ground being reached in congress and no clear answer or response tactic from Trump, the ship remains off the coast, constantly reminding the U.S. people of a the national security threat Russia maintains over them.[21] Therefore, unless measures are taken by either the Judicial Branch, Legislative Branch, or the states, U.S. national security may be at great risk for either an invasion or all-out war with the Russian Federation.

Trump established a series of new executive orders shortly after taking office. The most controversial ones’ deal with the deportation of all “illegal” immigrant and the banning of any form of immigration from seven Arab countries. The executive order concerning the deportation of illegal immigrants expanded the power of ICE by providing several new categories of qualification of deportation under the guise of merely removing the “‘bad dudes’” as Trump states.[22] There are strong criticisms that the order’s intention is to remove all illegal immigrants, regardless of whether they have a criminal record or not.[23] In fact, it was calculated the order could result in the “deportation of 11 million illegals.”[24] An action that is generating a variety of responses, from those desperate to find a way to stay in the U.S. to racists coming out of the wood work to voice their hatred to the immigrants.[25] This order has had negative effects internationally, especially in Mexico, but the effects are mainly being felt in the U.S.. Millions of parents of U.S. citizens are facing deportation, ripping them away from their families and lives they have spent years building in the supposedly “land of dreams.”[26] Not only are families being torn apart, there are potential economic consequences of the action with the removal of so many individuals, ranging from loss of workforce and supplementing the economy.[27] Many cities have noted that Trump and the ICE officials are targeting specific neighborhoods and communities, indicating that the order was merely a smoke screen to further Trump’s racist agenda and disregard of the potential aftermath of his actions.[28] Also, cities that have declared sanctuary for the immigrants are now facing denial of federal funds, adding pressure for them to conform to the executive order.[29] If this continues, the U.S. will not only be divided in the context of families, but in terms of the U.S. people in regard for those in support and those against the order.

The second order, signed just days after his inauguration, Trump revoked indefinitely admission of Syrian refugees and other refugees from six other nations.[30] Like the order that came later, this order received mixed reactions across the U.S. and the world. First, many of the current refugees in the U.S. and those attempting to enter are facing potential removal or denial, despite having already made it to the U.S. or been granted refugee status.[31] These individuals are fearful of the prospect to be forced to return to the warzone or being separated from their families.[32] As a result of this ban and the effects it has had on thousands of individuals, the ACLU and other U.S. lawyers have stepped forward to provide legal support and guidance through the process, as well as declare a legal battle with the Trump Administration.[33] Not only have lawyers stepped up to provide assistance for the refuges and other immigrants, judges across the judicial circuits declared the ban unconstitutional and move for the removal of the order.[34] Unfortunately, many polls have revealed that there are a great deal of U.S. citizens support the ban, creating fiction amongst the population.[35] Not only does Trump receive some support domestically, he is encountering encouragement abroad to continue with such bans.[36] With Trump getting continued support to attempt a new form of the ban both domestically and internationally, it is unlikely that Trump will revoke any such ban, in fact, is more likely to execute more.[37] In the end, the orders from Trump will only hurt the U.S., whether it be domestically or internationally.

In conclusion, the current president of the United States is following through on his promises he declared during his presidential campaign. The United States use to be the positive voice and influence in the world under the Obama Administration. President Obama, to the best of his ability, improved both domestic and international relations of the U.S., always exhausting every prospective outcome to seek out the best action for all parties involved. Now, the progress that has been seen in the last 8 years is unraveling within a matter of months. Within days of his inauguration, the path of destruction began, denying people the right to enter or remain in the U.S., enticing the revoking of trade agreements and potentially alliances, and risking national security with Russia. As discussed, if Trump continues to remain in his position, there is no positive outcome for the U.S. or the world. In fact, it is very likely that we will lose almost all our allies and will end up in war with Russia, China, or a combination of nations that no longer wish to follow the U.S. under its’ current leadership. Therefore, hopefully, either the federal legislative or judicial branches or state governments will rise and halt the destruction. If not, the consequences will be even more severe than they are currently.

Kylie Frantz is the Cite & Source Editor for the Denver Journal for International Law & Policy and a visiting 3L at the University of Denver Sturm College of Law, originally from Drake University Law School.

[1] Block Donald J Trump from UK Entry, UK Government and Parliament (June 9, 2016), https://petition.parliament.uk/petitions/114003; Donald Trump UK State Visit to be Debated in Parliament, CNN.com, Jan. 31, 2017, http://www.cnn.com/2017/01/31/politics/donald-trump-parliament-state-visit-debate/index.html.

[2] British Lawmakers Debate Banning Donald Trump from the UK for ‘Hate Speech’, CNN.com, Jan. 18, 2017, http://www.cnn.com/2016/01/18/europe/uk-parliament-debates-trump-ban/

[3] Id.

[4] Id.

[5] UK Speaker ‘Strongly Opposed’ to Trump Speech in House of Parliament, CNN.com, Feb. 6, 2017, http://www.cnn.com/2017/02/06/politics/uk-speaker-opposes-trump-parliament-speech/.

[6] Mexicans March Against Trump: ‘Bad Hombre for the Whole World’, CNN.com, Feb. 13, 2017, http://www.cnn.com/2017/02/12/americas/mexico-trump-protest/; Mexican President Cancels Meeting with Trump, CNN.com, Jan. 27, 2017, http://www.cnn.com/2017/01/25/politics/mexico-president-donald-trump-enrique-pena-nieto-border-wall/.

[7] David Jackson & Donovan Slack, Trump Soft Pedals NAFTA Criticism with Canadian PM, Says Mexico the Issue,

[8] David Agren, Mexicans March to Protest Trump – But Also Their Own Leaders and Politicians, Wash. post.  (Feb. 12, 2017), https://www.washingtonpost.com/world/the_americas/mexicans-march-to-protest-trump–but-also-their-own-leaders-and-politicians/2017/02/12/6cc9b29a-efcc-11e6-a100-fdaaf400369a_story.html?utm_term=.20f86df74b7a.; Mexico Protestors March Against Trump’s Immigration Policies, BBC.com, Feb. 13, 2017, http://www.bbc.com/news/world-latin-america-38952359; Mexico: We Will Not Pay for Trump Border Wall, BBC.com, Jan. 26, 2017, http://www.bbc.com/news/world-us-canada-38753826.  

[9]  David Agren, Mexicans March, Wash. post.  (Feb. 12, 2017); Mexico Protestors March, BBC.com, Feb. 13, 2017.  

[10] Mexicans March Against Trump, CNN.com, Feb. 13, 2017.

[11]  Mexico Protestors March, BBC.com, Feb. 13, 2017.

[12] Patrick Gillespie, Mexico is Ready to hit the U.S. Where it Hurts: Corn, Money.CNN.com, Feb. 13, 2017, http://money.cnn.com/2017/02/13/news/economy/mexico-trump-us-corn/.

[13] Office of the U.S. Trade Representative, Office of the President, Mexico/United States Trade Facts, https://ustr.gov/countries-regions/americas/mexico.

[14] Flynn’s Firing Raises Questions that won’t go Away, The Economist (Feb. 16, 2017), http://www.economist.com/news/leaders/21717034-what-are-presidents-ties-russia-and-does-he-have-control-over-his; Major Garrett, Trump Blames Media, Intelligence Community for Flynn Firing, Brushes off Russia Concerns, CBSNews.com, Feb. 16, 2017, http://www.cbsnews.com/news/trump-blames-media-intelligence-community-for-flynn-firing-brushes-off-russia-concerns/.

[15] Flynn’s Firing, The Economist (Feb. 16, 2017); CIA: Russia Interfered with U.S. Elections, Snopes.com, Dec. 10, 2016, http://www.snopes.com/2016/12/10/cia-russia-interfered-with-u-s-elections/; Jeremy Diamond, Russian Hacking and the 2016 Election: What you need to know, CNN.com, Dec. 16, 2016, http://www.cnn.com/2016/12/12/politics/russian-hack-donald-trump-2016-election/.

[16] Flynn’s Firing, The Economist.

[17] Michael S. Schmidt, Mark Mazzetti, & Matt Apuzzo, Trump Campaign Aides Had Repeated Contacts with Russian Intelligence, N.Y. Times (Feb. 14, 2017), https://www.nytimes.com/2017/02/14/us/politics/russia-intelligence-communications-trump.html; Erin Kelly, 5 ways Congress is Investigation Russia-Trump ties, USA Today (Feb. 17, 2017), http://www.usatoday.com/story/news/politics/onpolitics/2017/02/17/5-ways-congress-investigating-russia-trump-ties/98001652/.

[18] Steve Holland & Patricia Zengerle, U.S. Lawmakers push for Answers on Trump Team’s Russia ties, Reuters.com, Feb. 16, 2017, http://www.reuters.com/article/us-usa-trump-idUSKBN15U1IK.

[19] Christine Hauser, Trump, the Russian Ship, and Suspicious Minds, N.Y. Times (Feb. 16, 2017), https://www.nytimes.com/2017/02/16/us/politics/russian-ship-vessel-usa.html; Ryan Browne and Barbara Starr, Russian Spy Ship Lurks off Connecticut Coast, CNN.com, Feb. 16, 2017, http://www.cnn.com/2017/02/15/politics/russian-spy-plane-off-connecticut-coast/.

[20] Hauser, Trump, the Russian Ship, N.Y. Times (Feb. 16, 2017).

[21] Id; Browne, Russian Spy Ship, CNN.com, Feb. 16, 2017.

[22] Tal Kopan, Trump’s Executive Orders Dramatically Expand Power of Immigration Officers, CNN.com, Jan. 28, 2017, http://www.cnn.com/2017/01/28/politics/donald-trump-immigration-detention-deportations-enforcement/;

[23] Id.

[24] Julia Jacobo & Lauren Pearle, Trump’s Order may mark 11 Million Undocumented Immigrants for Deportation: Experts, ABCnews.com, Jan. 26, 2017, http://abcnews.go.com/Politics/trumps-order-mark-11-million-undocumented-immigrants-deportation/story?id=45050901.

[25] Id.

[26] Karma Allen, Fearing Deportation, Undocumented Mother of four Takes Refuges in Denver Church, ABCnews.go.com, Feb. 16, 2017, http://abcnews.go.com/US/fearing-deportation-immigrant-mother-takes-refuge-denver-church/story?id=45525882; Astrid Galvan & Jacques Billeaud,  Phoenix Immigrant Mother Deported to Mexico amid Protests, Chi. Tribune (Feb. 9, 2017), http://www.chicagotribune.com/news/nationworld/ct-phoenix-immigrant-mother-deported-20170209-story.html.

[27] Max Ehrenfreund, The Potentially Severe Consequences of Trump’s Deportation Plans, N.Y. Times (Nov. 14, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/11/14/what-donald-trumps-deportation-plans-would-do-to-american-businesses/?utm_term=.70c47189722a;

[28] Under Trump Order, Immigration Agents raid ‘Target-rich’ communities in Texas, elsewhere, DallasNews.com, Feb. 11, 2017, http://www.dallasnews.com/news/immigration/2017/02/10/trump-order-immigration-agents-raid-target-rich-communities-texas-elsewhere.

[29] Oliver Laughland, Carrie Wong, & Sabrina Siddiqui, ‘Sanctuary Cities’ Endangered by Trump Order Threatening to cut Federal Funds, The Guardian, (Jan. 25, 2017), https://www.theguardian.com/us-news/2017/jan/25/sanctuary-cities-trump-executive-order-immigration

[30] Dan Merica, Trump Signs Executive Order to keep out ‘Radical Islamic Terrorists’, CNN.com, Jan 30., 2017, http://www.cnn.com/2017/01/27/politics/trump-plans-to-sign-executive-action-on-refugees-extreme-vetting/index.html.

[31] Id; Krishnadev Calamur, What Trump’s Executive Order of Immigration Does – and Doesn’t Do, The Atlantic Daily (Jan. 30, 2017), https://www.theatlantic.com/news/archive/2017/01/trump-immigration-order-muslims/514844/

[32] Jared Malsin, ‘It’s Tearing FaMilies Apart.’ 6 Stories of Lives on hold due to Trump’s visa ban, Time Magazine (Feb. 2, 2017), http://time.com/4649876/donald-trump-visa-ban-executive-order-lives/.

[33] Jonah Engel Bromwich, Lawyers Mobilize at Nation’s Airports After Trump Order, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/2017/01/29/us/lawyers-trump-muslim-ban-immigration.html; Liam Stack, Donations to ACLU and Other Organizations Surge After Trump’s Order, N.Y. Times (Jan. 30, 2017), https://www.nytimes.com/2017/01/30/us/aclu-fund-raising-trump-travel-ban.html.

[34]  Michael D. Shear, Nickolas Kulish, & Alan Feuer, Judge Blocks Trump Order on Refugees amid Chaos and Outcry Worldwide, N.Y. Times (Jan. 28, 2017), https://www.nytimes.com/2017/01/28/us/refugees-detained-at-us-airports-prompting-legal-challenges-to-trumps-immigration-order.html.

[35] Scott Clement, Americans are more Split on the Trump Travel Ban Than You Might Think, Wash. Post (Feb. 13, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/02/13/americans-arent-rejecting-trumps-immigration-ban-outright-but-it-has-a-tough-road-ahead/?utm_term=.2784814b18e5; Richard Pérez-Peña, Trump’s Immigration Ban Draws Deep Anger and Muted Praise, N.Y. Times (Jan. 28, 2017), https://www.nytimes.com/2017/01/28/us/trumps-immigration-ban-disapproval-applause.html.

[36] Pérez-Peña, Trump’s Immigration Ban, N.Y. Times (Jan. 28, 2017).

[37] Id; Shear, Judge Blocks Trump Order, Wash. Post (Feb. 13, 2017).

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A Look Back: From the Death of Justice Antonin Scalia to the Nomination of Judge Neil Gorsuch

Gorsuch

President Trump shaking hands with Judge Neil Gorsuch, his nominee to replace Justice Antonin Scalia on the Supreme Court, on January 31, 2017.

While The View From Above generally posts on issues and topics concerning international law, I believe it prudent to address President Trump’s Supreme Court nominee—which will surely have a future impact on international law and the role the United States plays in it. This post briefly analyzes the following in response to the passing of Justice Antonin Scalia: Presidential Appointment Powers; then-President Obama’s nominee, Chief Judge Merrick Garland; and President Trump’s nominee, Judge Neil Gorsuch.

An Originalist Perspective on the Presidential Appointment Powers

For better or worse, in the context of constitutional interpretation, Republicans are often affiliated with the theory of Originalism. Justice Scalia, perhaps the most famous Originalist to date, defined originalism in this way:

“The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”

Article II, Section II, Clause II of the United States Constitution [1], known as the Appointments Clause, empowers the President of the United States to nominate certain public officals with the “advice and consent” of the Senate. This clause of the Constitution gives the President the power to nominate judges, but it also gives the Senate the affirmative power to provide “advice and consent” and places no limits on how the Senate discharges this power. Nowhere in the Constitution does it state that the Senate must hold a hearing for, let alone consider, a Supreme Court nominee. Keeping this perspective in mind, the Senate may withhold its consent by voting down a nominee, but it may also withhold its consent by refusing to act, or otherwise failing to confirm a nominee. As such, when the Constitution is interpreted from an Originalist perspective, the argument that the Senate has a “Constitutional Duty” to consider a Supreme Court nominee is likely erroneous.

The unusual circumstances resulting from the untimely death of Justice Scalia (where the President nominates an individual to the Supreme Court in an election year and where the Senate is controlled by a party other than that of the President) has occurred twice before in our nation’s history. In each instance, regardless of which party controlled the White House or the Senate, the Senate has held a hearing for the Supreme Court nominee. In 1895, Democratic President Grover Cleveland nominated Rufus Wheeler Peckham to the bench before a Republican-controlled Senate. The Senate held a hearing for Peckham and confirmed his nomination. More recently, in February 1988, a Democratic-controlled Senate confirmed Republican President Ronald Reagan’s nominee for the Supreme Court, Anthony Kennedy. [2] In fact, every Supreme Court nominee since 1875 has received a hearing before the Senate— well, every nominee except one.

As such, I believe that the Senate should promptly consider and vote on every presidential judicial nominee, not necessarily because the Senate has a constitutional obligation to do so, but, rather, because a historical basis exists upon which this claim may rest.

(Then-) President Obama’s Nominee: Chief Judge Merrick Garland

On March 16, 2016, then-President Barrack Obama nominated Chief Judge Merrick Garland, of the United States Court of Appeals for the District of Columbia Circuit, for Justice Scalia’s vacated Supreme Court seat. In an unprecedented act of childish discourtesy, the Republican-controlled Senate refused to hold a hearing for, or even consider, President Obama’s nomination of Chief Judge Garland.

As explained above, the Senate might not be obligated to hold a hearing for a Supreme Court nominee, let alone explain its reasons for not doing so. Someone should have told this to Republican Majority Leader Mitch McConnell. Senator McConnell stated that the reason for the Senate not holding a hearing was because the American people should have a voice in the filling of Justice Scalia’s vacancy. This argument from silence should not be ignored, and is particularly unpersuasive given the general affiliation between Republicans and Originalism, as outlined above.

President Trump’s Nominee: Judge Neil Gorsuch

On January 31, 2017, President Trump nominated federal appeals court Judge Neil Gorsuch [3] to fill the Supreme Court seat that has sat vacant since the passing of Justice Scalia. Judge Gorsuch is certainly a qualified nominee. He earned his Juris Doctor degree from Harvard Law School (where he was a classmate of former-President Obama) and his Doctor of Philosophy degree in Legal Philosophy from University College, Oxford. Additionally, Judge Gorsuch was a law clerk for Justice Kennedy. [4]

While it is likely that the Senate will hold a hearing for Judge Gorsuch, it will be interesting to see whether Democrats attempt to block his confirmation because of the events (or lack thereof) surrounding then-President Obama’s nomination of Chief Judge Garland. While some Democrats want to block Judge Gorsuch’s confirmation because of his willingness to endlessly extend religious freedoms [5] and his desire to reduce the power of regulatory agencies [6], many Democrats want to block the confirmation of Judge Gorsuch based on principle. However, I question whether that would be a wise course of action. Given President Trump’s unpredictability, Democrats might want to allow the confirmation of Judge Gorsuch. No one knows who President Trump’s next nominee might be.

While Judge Gorsuch has been very conservative in his past rulings, he does so by means of a consistent interpretation of the Constitution, (generally) without including his own personal beliefs—the polar opposite of Justice Alito. As such, it will be interesting to see whether, if given the opportunity, Judge Gorsuch aligns more with Justices Alito and Thomas, or Chief Justice Roberts. Additionally, while the Court is currently in a 4-4 (Republican-Democrat or Conservative-Liberal) split, Judge Gorsuch is set to take the place of Justice Scalia, a reliable conservative vote of the Court. With the recent talk of Justice Kennedy’s (the Court’s recent swing vote) potential stepping-down and Justice Ginsburg’s (a reliable liberal vote) advanced age, Democrats might want to hold their revenge for another day.

_______________________________________________________________________________________

[1] 1 “He [The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” U.S. Const. art. II, § 2, cl. 2 (emphasis added).

[2] Anthony Kennedy was nominated by then-President Reagan in November 1987. Banen, Steve (February 15, 2016). “Justice Kennedy’s confirmation debunks key GOP talking point“. MSNBC. Retrieved February 3, 2017.

[3] Judge Gorsuch has been a federal appellate judge on the United States Court of Appeals for the Tenth Circuit since August 2006.

[4] It will be interesting to see whether, because of their past relationship, Judge Gorsuch would push Justice Kennedy towards voting more conservatively than he has in the recent years.

[5] See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).

[6] See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).

Joseph Apisdorf is currently a second-year law student at University of Denver Sturm College of Law and managing editor of the Denver Journal of International Law and Policy. He is also a member of the Federalist Society.

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The Right to a Healthy Environment

An example of the clean environment we are entitled to and trying to protect.

An example of the clean environment we are entitled to and trying to protect. Photo Credit: Brown Safe Preserving Tomorrow

The basic premise is that everyone deserves to live in an environment that does not harm their well-being and provides an adequate standard of living. Currently, the right to a healthy environment is not one that is internationally recognized as a human right. There are skeptics that claim that the environment and human rights are two separate issues, but the two are actually interconnected. A healthy environment is the foundation for recognized human rights, such as, the right to life and an adequate standard of living. Without a healthy environment, these rights cannot be protected.

The first international agreement recognizing the right to a healthy environment is the 1972 Stockholm Declaration. Since then, there have been numerous international and regional agreements, as well national legislation that have supported recognizing the right. Most of these sources elaborate on the idea of the environment and human rights being inseparable. Over the past 30 years, the awareness of the degradation of the environment due to human activity has become a serious concern for the international community. Human impact on the environment has always existed, but has drastically increased since the 1980s.

Since the Stockholm Declaration in 1972, there have been many international agreements that have been created for the purpose of protecting, preserving, and improving the environment for human well-being. According to the Register of International Treaties and Other Agreements in the Field of Environment, there are 272 treaties and international agreements dealing with the environment and environmental obligations. Each of these treaties and agreements has helped develop international environmental law and have helped shape the right to a healthy environment.

There are many constitutions and laws around the world that recognize this right. The benefit to having a right enshrined within a constitution is similar to the benefits of having a treaty. A constitution is legally binding and holds the government accountable to meeting all the rights sets out within it. By having the right to a healthy environment in the constitution, it will lead to stronger environmental laws and gives governments improved means to implement and enforce the right.

There is an inherent link between human rights and the right to a healthy environment, because they are dependent upon each other. When the environment is not being taken care of the right to life, health, work, and sanitation are negatively impacted. People are dependent upon the environment in order to live, in a way, a healthy environment is the foundation for many other human rights. By taking care of the environment we are protecting human rights and vice versa. The recognition of this right can be seen by the increasing number of states with constitutional provisions as well as the amount of international agreements on the right.

Since the Stockholm Declaration, the discussion surrounding the right to a healthy environment has changed drastically. With more scientific information available and concerns about sustainability becoming more prevalent, the right is being given more consideration internationally. There are countless binding and non-binding international agreements as well national constitutions and legislation that guarantee canadian casino news the right. Not only are states recognizing the right, they are also recognizing that the environment and human rights are interconnected. In sum, the right to a healthy environment is critical not only for the sustainability of the global environment, but also for the protection of many human rights.

Courtney Burgess is a 3L at the University of Denver Sturm College of Law and is a staff editor on the Denver Journal of International Law and Policy.

_____________________________________________________________

Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14/REV.1 (1972).

Ved Nanda, International Environmental Law & Policy for the 21st Century (2d. ed.) at 15.1

Register of International Treaties and Other Agreements in the Field of the Environment, U.N. Doc. UNEP/Env.Law/2005/3 (Dec. 30, 2005).

David R. Boyd, The Constitutional Right to a Healthy Environment, Environment (Jul.-Aug. 2012), http://www.environmentmagazine.org/Archives/Back%20Issues/2012/July-August%202012/constitutional-rights-full.html.

[1] John Knox, Special Rapporteur on Human Rights and the Environment (Former Independent Expert on Human Rights and the Environment), United Nations Human Rights Office of the High Commissioner, http://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx.

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DU’s Foreign Direct Investment Moot Team Travels to Argentina To Compete

Photo Credit: The Himalayan Times

Photo Credit: The Himalayan Times

The Foreign Direct Investment (“FDI”) International Arbitration Moot competition this year was in Buenos Aires, Argentina at the stunning Facultad de Derecho at the Universidad de Buenos Aries. Four students from the University of Denver Sturm College of Law (“SCOL”) competed in this event as one team.

The FDI Moot competition was created in 2008 with a specific focus on investor-state disputes that “involve not only vast sums, but also a panoply of rights, duties, and shifting objectives at the juncture of national and international law and policy.” The FDI Moot is an arbitration for resolving a fictional international investor-state dispute. It is a complicated and intricate field of law—I assure you. Investor-state dispute settlement (“ISDS”) is fast becoming a widely-known mechanism (even in the public sphere, in light of the controversial Trans-Pacific Partnership Agreement) for resolving disputes between a foreign investor and a sovereign state. In fact, ISDS is the theme of the upcoming Denver Journal of International Law and Policy volume 45.2.

The SCOL team began its journey in adjunct Professor Todd Well’s International Investment Arbitration course in Spring 2016. While waiting for the official problem to be released, the class scratched the surface of this interesting world of ISDS arising from Bilateral and Multilateral Treaty breaches. In the months following the official release of the problem in March 2016, the SCOL team was selected, and the real challenge began. First, the team had to organize research, topics, ideas, and concepts and create two Memorandums—one for the Claimant and one for the Respondent—in the fictional dispute between Peter Explosive, an arms producer, and the Republic of Oceania. The Memorandums were 16,000 words maximum, which we quickly learned required serious condensing skills. Then, the oral advocacy work began until October 27th, when the team left the U.S.A. to compete.

Three of the four SCOL team members attended the FDI Pre-Moot competition in Sao Paulo, Brazil from October 28th-30th, and all four attended the FDI competition in Buenos Aries, Argentina from November 3rd-6th. The Pre-Moot competition was held at the beautiful Headquarter Office of TozziniFreire Advogados. We were welcomed with both hospitality from TozziniFreire’s brilliant attorneys, and fierce competition from the learned opposing counsel. We met people from all over the world who participated in the Pre-Moot. We saw our new friends again in Buenos Aries for the Global Orals. In BA, 57 teams from 31 countries participated in this international competition. The Paris Bar School won at UBA, and Harvard Law School came in 2nd. The Universitas Gadjah Mada, Faculty of Law was the highest ranked (written & oral) team. As for team SCOL, we exceeded our expectations, surpassed personal goals, and met established practitioners and scholars in this growing field.

This short article cannot encompass every emotion, triumph, breakdown, and vast improvement that each team member felt at different points of this six-month-long effort. But, I can tell you this experience, which tested the limits of each team-member’s sanity, was well-worth it.

Ashley Lloyd is a 3l at the University of Denver Sturm College of Law, and the Business Editor with DJILP. She participated in the Foreign Direct Investment International Arbitration Moot competition this year in Buenos Aires, Argentina.

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