Tag Archive | "international law"

Photo Credit: Kelly Roberts

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

Photo Credit: Kelly Roberts

Photo Credit: Kelly Roberts

Judicial Implications of Treaty Ratification

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

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

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

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

International Human Rights Law and Local Courts

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

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

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

Enacting Legislation

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

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

 

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

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

[2] Id.

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

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

[5] See 158 Cong. Rec. S7369

[6] 158 Cong. Rec. S7369.

[7] Id.

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

[9] 158 Cong. Rec. S7372.

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

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

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

[13] Id.

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

[15] Matter of Dameris L. at 849.

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

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

[18] Id.

[19] Id.

[20] Id.

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

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

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

[24] Matter of Dameris L. at 856.

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

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

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

[28] Id. at 1.

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

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

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

 

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UNESCO

Politics over Peace: Waving Goodbye To UNESCO…Again

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

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

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

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

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

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

 

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

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

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

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

[4] Id.

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

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

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

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

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

[10] Id.

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

[12][12] Id.

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

Posted in 1TVFA Posts, 2Featured Articles, Alex Mancero, DJILP StaffComments (0)

_97814730_korea_japan_missile_guam_15sept_map

North Korea: Nuclear Tests, Threats, & Missile Launches

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

Source: South Korea’s Defense Ministry

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

A Recent Timeline

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

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

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

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

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

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

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

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

International Responses  

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

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

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

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

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

The Non-Proliferation Treaty

Non-Proliferation Treaty Objectives

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

Pacta Sunt Servanda

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

Procedure for NPT Withdrawal

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

Estoppel

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

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

Customary International Law

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

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

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

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

The United Nations Charter: Article 2(4) 

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

What Happens Next, a Military Option or Diplomacy?

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[21] Id.

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

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

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

[29] Stein & Jordan, supra note 20.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

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

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

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

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

[43] Id.

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

[45] Id.

[46] Id.

[47] Id.

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

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

[50] Id.

[51] Neuman, supra note 14.

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

[53] Id.

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

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

[56] Id.

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

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

[59] Id.

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

[61] Id.

[62] Id.

[63] Id.

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

[65] Id.

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

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

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

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

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

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

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

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

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

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

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

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

[78] Id.

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

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

[81] Id. at ¶ 97.

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

[83] U.N. Charter art. 2, ¶ 4.

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

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

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

[87] Nilsson-Wright, supra note 4.

[88] Id.

[89] Rice, supra note 86.

[90] Id.

[91] Nilsson-Wright, supra note 4.

[92] Mohammed & Stewart, supra note 13.

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

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Trump

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 Bouncy castle for sale Costco 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.

________________________________________________________________________________________________________________

[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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Miller Article Picture

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 Water trampoline Canada 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.

_____________________________________________________________________________________

[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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191529Image1

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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Photo Credit: Pixabay

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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_90356589_south_china_sea_spratlys

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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Photo Credit: Judith Hartmann

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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University of Denver Sturm College of Law

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