Tag Archive | "international law"

Cyber Security: An International Security Issue with No Solution?

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Photo Credit: Download Detector

On Friday, October 20th, malicious cyber attacks prohibited access to major websites like Twitter, PayPal, and Amazon in intermittent locations throughout the U.S. and abroad. Experts determined the attacks are the result of a virus that infected thousands of users’ internet-connected devices through webcams and video recording devices. This method of hacking is both complicated and sophisticated, which makes it difficult to prevent within the general population of internet product users.

While both the F.B.I. and the Department of Homeland Security announced investigations into the incident, public response to the attacks demonstrates mounting uneasiness about cyber security. Coming on the heels of the Democratic National Committee hacks this summer, Friday’s attacks raise questions about cyber security and the proper response by both national and international bodies. The Department of Homeland Security did issue a warning about the virus code last week, but this ultimately was not enough to remedy the security gaps in consumers’ devices. Some in the industry have assigned blame to the producers of such devices, but many now contend that the issue of cyber security is an international issue that must have an international solution.

Because cyber attacks of international scope are a relatively new phenomenon, the U.N. Charter does not explicitly provide for a procedure to address their consequences and effects. As such, it remains unclear what kind of responses to cyber attacks would be legal under international law. Most likely an issue of self-defense, article 51 of the U.N. Charter provides that, “Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations. . . .” Cyber attacks, however, are certainly not “armed” attacks in the traditional sense, so any retribution framed in terms of self-defense may not prove to be a successful argument under the Charter. As international law currently stands, cyber security suffers from a noticeable gap.

Governments could also seek to impose sanctions and countermeasures against the perpetrators of cyber attacks, but this strategy poses an additional issue. Because these attacks are designed to preserve the hackers’ anonymity, attributing the attacks to a foreign government is extremely difficult. Attributions would necessitate an investigation into the level of complicity the foreign government had in the individuals’ hacking efforts, which could range from explicitly contracting for their services or neglecting to shut down suspected offenders. Further, the possible development of automated or “robot” hackings make punishing even individual offenders a complicated affair.

Because cyber attacks are likely to only increase in severity and frequency as technology and hackers become more advanced, the international community may be forced to address the issue in setting a clear legal precedent for the aftermath of incidents like Friday’s blackout.

Jane Rugg is a 2L at the University of Denver Sturm College of Law, and she is currently the Event Coordinator for the Denver Journal for International Law and Policy.

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The Fight Against Climate Change: The Paris Agreement Ratified by 75 Countries

Graph prepared by James Hansen Makiko Sato from data collected by NOAA and NASA.

Graph prepared by James Hansen Makiko Sato from data collected by NOAA and NASA.

On October 5th the requirements were met for the Paris Agreement (PA) to enter into force. This milestone was triggered when more than 55 countries representing 55% of global greenhouse emissions (GHG) ratified the Agreement. The PA has had tremendous international public and private support following its adoption by the 197 Parties to the United National Framework Convention on Climate Change (UNFCCC) in Paris on December 2015. Within days of this announcement, the Earth’s atmosphere reached its own notable milestone. The National Oceanic and Atmospheric Administration (NOAA) issued a statement that for the first time in three million years, atmospheric levels of the heat trapping gas, carbon dioxide measured 400 ppm. The dramatic rise of CO2 levels is a considerable departure from the stable CO2 levels of 278 ppm that allowed for a comfortable climate for human life to evolve. NOAA noted that this change coincided with global deforestation and burning of fossil fuels in the 1850s and the 1950s respectively.

The PA seeks to mitigate increasing GHG emissions and cap global temperature rise well below 2° Celsius (3.6° Fahrenheit) of pre-industrial levels and to pursue efforts to limit temperature increase to 1.5°Celsius. Through the PA, countries individually and voluntarily pledge Intended Nationally Determined Contributions (NDCs) to achieve this cap. Further, the PA calls for efforts towards adaptation of the impacts of climate change and provides a managerial vehicle for the investment needed for a sustainable low-carbon future. The PA will come into force on November 4, 2016 and will set into motion the first meeting of the governing body of the PA, the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement.

In November of this year, the CMA will meet at the Conference of Parties 22 (COP22) in Marrakech, Morocco. One of its tasks will be to ensure global commitments for the $5 to $7 trillion needed to support these efforts by 2020. $100 billion has already been pledged by developed countries to developing countries. The private sector is also playing a major role in these efforts investing billions of dollars to green markets. The collaborative efforts of both the public and private sectors towards accelerating GHG emissions is truly a remarkable moment in our world’s history.

Speaking the day that the 55% milestone was reached, the United Nations Secretary-General Ban Ki-Moon said, “Global momentum for the Paris Agreement to enter into force in 2016 has been remarkable. What once seemed unthinkable is now unstoppable.” For the sake of future generations, let’s hope that the global momentum to reduce emissions overtakes ever increasing heat trapping gases.

Entry into force of the PA is no doubt timely, given both milestones. With no peak of carbon emissions in sight and with ever increasing and severe weather events, the money and effort put in by public and private entities is certainly needed to adapt to the effects of our changing climate and to develop sustainable methods for future generations.

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The Road Ahead for Colombia, as FARC Agrees to Peace

Photo Credit: Fernando Vergara/AP

Photo Credit: Fernando Vergara/AP

The Western Hemisphere has reason to celebrate… The Revolutionary Armed Forces of Columbia finally agreed to end the longest running armed conflict of the Americas.  Colombia’s Marxist FARC (“Fuerzas Armadas Revolucionarias de Colombia”) rebel group began as a peasant uprising against the national government in 1964.  The group’s ideologies encompass Marxism, the antithesis of capitalism, and advocates for values such as “from each according to his ability, to each according to his needs.”  Colombia’s President, Juan Manuel Santos, has been in negotiations with the group for the past four years.  Although the peace accord has Santos’ blessing and FARC’s acquiescence, the Columbian nation will keep its fingers crossed that voters approve the deal in a national referendum.

The peace agreement will wrap up over a half a century of conflict, close to a quarter of a million deaths, and over 5 million internally displaced persons (IDPs) in the ravaged nation.  (Some estimates of the FARC conflict even have the number of IDPs in Colombia upwards of 8 million.)  The controversial peace pact will grant rebel combatants amnesty for any and all crimes committed during conflict.  This reality is painful for many in the country who’ve witnessed FARC forces thrive though kidnapping, extortion, and involvement in illicit drug trade.  Additionally, the accord will allow rebel forces to form a political party and seek political office.

The deal will also have a profound impact on Columbia’s illegal narcotics industry as it requires farmers to destroy coca plants- the source of cocaine manufacturing.  This land will then be redistributed to former FARC rebels and facilitate new crop industries directed towards job creation on their behalf.  As FARC forces step down from cocaine trading, an event anticipated with both optimism and skepticism, this begs the question of who may be waiting in the wings of the jungle to claim control of the lucrative drug crop which supplies about 60 percent of the world’s cocaine.  After all, these billions of acres of emerald green coca crops have brought in $2.4B – $3.5B annually for the FARC organization, and that is not an effortless surrender.

Arguably its greatest accomplishment, the peace agreement calls for the release of child soldiers.  The first group of minor ex-militants was released to the Red Cross this past week, with FARC leaders stating “We the FARC believe that the outing of minors from war zones is only the first step towards a better future for new generations.”  The Colombian army estimates that roughly half of its soldiers became FARC combatants as children.  This relentless recruitment of children over the past fifty-plus years constitutes egregious abuse to the minors’ innocence, in violation of several human rights conventions, and is recognized as a war crime under the Rome Statute of the International Criminal Court.  In 2000, the world’s first international treaty focused on ending the military exploitation of minors came into being- OPAC, the Optional Protocol to the Convention on the Rights of the Child.  The treaty prohibits the conscription of children under the age of 18 and their participation in hostilities. It also prohibits the voluntary recruitment of children by non-state armed groups, although it allows state armed forces to recruit from age 16, as long as the children recruited are not sent to war. However, the promise of peace may not be the end of struggle for these “child soldiers,” but rather a different beginning as it will be the first time some of the insurgents have surrendered arms in their lifetime.  Furthermore, the former soldiers will likely need appropriate DDR (Disarmament, Demobilization, and Reintegration) programs to facilitate their successful re-entry into a society of post-conflict peace- without arms.

If history has taught us anything, it is that violence begets violence.  While the ceasefire may be a wonderful beginning to peace within Colombia, there are still many ancillary hurdles that the nation will need to overcome as a unified front.  Nonetheless the peace accord is a giant step towards an end of possibly not acceptance, but certainly understanding, between Santos’ government, FARC forces, and the nation’s people.  It is an agreement that highlights the country’s determination and cooperation… and most deserving of the world’s respect and praise.

Tahli Salem is a third year law student and staff editor on the Denver Journal of International Law and Policy.

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An International Convention on the Enforcement of Mediated Agreements?

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Photo Credit: Dunya News

There is a growing use of mediation in international commercial disputes. Many have pointed out that mediation is ‘the new arbitration’, because arbitration has become increasingly formalized, costly, lengthy and adversarial in nature. Others argue that mediation cannot take the role of arbitration, and one of the reasons is that it lacks an international system for enforcement of mediated agreements like that of arbitration awards in the New York Convention of 1958. This has spurred ideas on creating such a system to further promote mediation as a way to solve international commercial disputes. Following a proposal by the US in July 2014, United Nations Commission on International Trade Law (UNCITRAL) is currently investigating the possibility, desirability and best design of an instrument, such as an international convention, on the cross-border enforcement of international mediated agreements (referred to by UNCITRAL as settlement agreements resulting from conciliation), similar to the New York Convention for arbitration.

In international business, the main ways to settle disputes are adjudicative, namely through arbitration and domestic court litigation. Mediation has many advantages compared to those methods. By being an informal and private form of dispute settlement, it takes significantly less times and involves considerably less costs than arbitration and litigation. It also has the potential of producing savings in domestic administration of justice if some in-court litigation is avoided. In contrast to arbitration, the parties have control over both the decision to settle and the terms of any settlement, which in turn enables creative solutions where business considerations and common interests can play a key role. Finally, mediation helps preserve ongoing commercial relationships, which can be especially important in joint ventures or long-term supply contracts; by comparison, an adjudicative process is per se disruptive. However, many of these benefits of mediation in international commercial disputes are dependent on the finality of the mediated agreement, i.e. that parties are bound to comply and unable to bring the dispute anew. The possibility of cross-border recognition and enforcement of mediated agreements is therefore vital in promoting meditation, facilitating international business and mitigating social costs.

Currently, countries have various ways to enforce international mediated agreements. Some provide for enforcement of mediated agreements as court judgments. However, that is often limited to court-sponsored mediation or cases first filed in court, and enforcing such court judgments across borders is often difficult. Other countries allow arbitral tribunals to convert mediated agreements into awards on agreed terms, also referred to as ‘consent awards’, thus enabling the agreements to be enforced as arbitral awards. However, as with court judgments, this often requires that the disputes started as arbitration cases. In many other countries mediated agreements are treated as ordinary contracts, which means that a party must file a normal suit claiming breach of contract in order to obtain enforcement. This entails normal burden of proof rules and no res judicata effect from the mediated agreement.

On the international level, UNCITRAL has previously attempted to enhance the use of mediation and other conciliation methods through its Model Law on International Commercial Conciliation of 2002. However, the Model Law leaves the matter of enforceability to the individual state. It has therefore been widely criticized for doing no more than merely restating the obvious. The New York Convention potentially allows arbitral tribunals to convert mediated agreements into consent awards. However, since the Convention only governs arbitrations arising out of “differences,” it is unclear whether it can be used for differences that did not exist at the start of an arbitration process; with a prior mediated agreement there are arguably no differences to be arbitrated. Parties wishing to use mediation to settle there disputes are therefore presently advised to include an arbitration clause, or a hybrid clause such as Arb-Med, in their contract and to convene an arbitral tribunal before commencing mediation, in order to ensure enforcement under the New York Convention. Even so, this creates unnecessary costs and delays for convening arbitrators and attorneys etc. In addition, most arbitration rules allows consent awards only if the arbitrators themselves agree to it and it is not certain that arbitrators would agree to merely rubber-stamp mediated agreements.

It is therefore clear that there is a need for a new international instrument that ensures enforceability of international mediated agreements, and the current proposal discussed within UNCITRAL should be encouraged and accelerated. As to how such an instrument should be designed there are some key issues to agree on, for example the form of the instrument, coverage of non-commercial disputes, conditions for the mediation process and the mediator, enforceability also of agreements to mediate, enforcement of non-monetary or otherwise complex agreements, and grounds for refusal of enforcement.

The existing political momentum should be utilized. Having the US, the major player in international business, as its number one proponent makes the convention more likely to be accepted by a critical number of countries. In addition, in a recent survey of members of the international legal and business communities the vast majority of the respondents believe that a convention on the enforcement of mediated agreements would be very useful for international business. Their views are valuable in convincing countries of the merits of a new international instrument. The fact that there are many different domestic systems for enforcing mediated agreements could make agreement on a new convention more difficult, however, the situation was similar for arbitration when the New York Convention was agreed upon, and, presently, rules on enforcement of mediated agreements is at a developing stage in many countries. Moreover, if based on the structure of the New York Convention, the new convention would already be familiar to countries, making it easier to reach agreement.

The relevant Working Group of UNCITRAL will meet in Vienna, 12-23 September 2016, and hopefully an ambitious timeline for the preparation of a convention will be agreed upon.

Matilda J. Brolin is currently a fellow at the World Bank, Washington D.C., and holds an LL.M. from Harvard Law School focused on international law and dispute resolution, as well as an LL.M. from Uppsala University.

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Senegal’s Habré Sentence Sends a Strong Message

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Chad’s former dictator Hissene Habre raises his hand during court proceedings in Dakar, Senegal, Monday, May 30, 2016. Judge Gberdao Gustave Kam declared Habre guilty and sentenced him to life in prison for crimes against humanity, war crimes and torture, in a packed courtroom, Monday.(AP Photo/Carley Petesch)

For the court of one country to prosecute the ruler of another is unprecedented. But that is what happened two weeks ago in a historic first, when an ad hoc tribunal in Dakar, Senegal, sentenced Hissene Habré to life in prison after finding the former president of Chad guilty of international human rights crimes. The tribunal was established in Senegal with the help of the African Union and applied international criminal law, including the treaty against torture.

The verdict sends a powerful message to African dictators, putting them on notice that they might share Habré’s fate. It encourages human rights advocates seeking to bring to justice African leaders who have allegedly committed crimes against humanity. Until now, such indictments and prosecutions have taken place at the International Criminal Court or special tribunals in The Hague, Netherlands, far away from where the crimes took place. For example, the former president of Liberia, Charles Taylor, was sentenced to 50 years for war crimes in neighboring Sierra Leone. Finally, the case also gives hope to victims of serious human rights abuses inflicted by their own governments.

Now 73, Habré — who ruled Chad from 1982 to 1990 — is called the “African Pinochet” for his brutality and cruel suppression of anyone suspected to be a dissident. A truth commission created by his successor government reported that his administration had killed more than 40,000 people and tortured, detained, raped, summarily executed, or imprisoned hundreds of thousands.

Habré was first indicted in 2000 by a judge in Senegal, where he was living in luxury after his ouster, but the court found that the crimes charged had not been codified there and the case was thrown out. The survivors took the case to Belgium, invoking universal jurisdiction, under which national courts are authorized to try cases of the most serious crimes against humanity even though they had not been committed in that nation’s territory and even if they are committed by government leaders in other states.

Senegal refused to comply with repeated requests from Belgium to extradite Habré. After several legal twists, the International Court of Justice in The Hague called upon Senegal to either prosecute Habré or extradite him. More than 90 victims and witnesses testified, and there was ample evidence from the thousands of files found in the old police buildings that included lists of prisoners and deaths in detention. The dreaded secret police unit he created carried out some of the worst abuses against suspected political opponents. Habré was found guilty of crimes against humanity, summary executions, torture and rape.

It must be noted that Habré had come to power with U.S. support. Despite his dismal human rights record and brutal repression of dissidents, the U.S. continued to give Chad millions in military and economic aid. This was acknowledged by Secretary of State John Kerry, who welcomed the verdict, saying, “As a country committed to the respect for human rights and the pursuit ofjustice, this is also an opportunity for the United States to reflect on, and learn from, our own connection with past events in Chad.”

The trial is indeed a turning point for Africa, which has failed to hold accountable repressive leaders like Sudan’s Omar al Bashir, who has been indicted by the International Criminal Court for genocide, war crimes, and crimes against humanity in Darfur but still travels freely in Africa. Habré’s conviction is a fitting tribute to those who have fought for generations to extend the end of impunity into Africa for perpetrators of grave human rights violations. It moves forward the efforts that began at Nuremberg after World War Il to bring Nazi leaders to justice for war crimes and crimes against humanity, and expanded with the creation of the International Criminal Court in The Hague.

Ved Nanda (vnanda@law.du.edu) is Thompson G. Marsh professor of international law and director of the Ved Nanda Center for International and Comparative Law at the University of Denver Sturm College of Law. This article was originally posted as a Denver Post Op-ed, which can be found here.

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70 Years of Justice

Meeting in The Hague on 3 February 2015, the International Court of Justice (ICJ) dismissed genocide claims by Croatia and Serbia. UN Photo/CIJ-ICJ/Frank van Beek.

Meeting in The Hague on 3 February 2015, the International Court of Justice (ICJ) dismissed genocide claims by Croatia and Serbia. UN Photo/CIJ-ICJ/Frank van Beek.

This week we celebrate a very important birthday – on April 18th, 1946, the International Court of Justice (ICJ) was born. Since its birth 70 years ago, the ICJ has had the opportunity to hear 161 cases. These cases have been entered from large countries like the United States and the former Soviet Union all the way to small ones like Burkina Faso and Malta. I thought I would take this opportunity to explore the history and purpose of this very important court as it’s not one that many American jurists get the opportunity to encounter.

To do so, we need to go back a little further in time. You may be surprised to learn that what Americans know as “alternative dispute resolution” actually predates judicial settlement in history. Mediation had its origins in ancient India and the Islamic world, while arbitration was used throughout ancient Greece, tribal Arabia, and medieval Europe. Finally, in 1899, the International Court of Arbitration was established by the first Hague Peace Conference in the newly built Peace Palace. By the time judicial settlement took its place in the international realm, World War I had just come to an end. The precursor to the ICJ, the Permanent Court of International Justice (PCIJ), was established by the League of Nations in 1920 and heard 29 cases that mostly dealt with issues from WWI.

The PCIJ came to an end when the League of Nations was dissolved and with the establishment of the United Nations, so came the ICJ. This coincided with World War II and a whole new set of issues. Article 1 of the UN Charter defines the ICJ’s purpose is “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” Also seated in the Peace Palace at The Hague, Netherlands, the ICJ is composed of 15 judges elected for nine-year terms. Besides settling disputes between nations (contentious procedure), the ICJ also issues advisory opinions on legal questions submitted by UN bodies and agencies (advisory procedure).

However, advisory procedure should definitely not be seen as secondary to contentious procedure. In 1947, the ICJ decided on the conditions necessary for a state to be admitted to the UN, something that still controls today. 1950 brought about procedure regarding the genocide convention following WWII. 1993 and 1995 brought about advisory procedure on the legality of the threat and use of nuclear weapons. Of course, contentious procedure has made its mark on the world too. The Nottebohm case (1950) has been a cornerstone of nationality determinations the world over. The United States Diplomatic and Consular Staff in Tehran case (1980) was brought by the US against Iran following the Iran hostage crisis. Finally, another 10 cases are currently in progress and range on issues from maritime borders to the cessation of the nuclear arms race and disarmament.

Whether or not you believe that international public law is important, the ICJ has made determinations that affect you. Whether you live on a small fishery on the coast of Iceland, drive a gas-powered tractor on a potato farm in Idaho, or dream of a world where nuclear missiles are no longer a threat, your life has been shaped by the decisions of the ICJ. The last 70 years have moved our world in a positive direction. Happy Birthday, ICJ – cheers to the next 70.

Lorne Hiller is a 3L at the University of Denver Sturm College of Law and the Executive Editor of the Denver Journal of International Law and Policy.

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25 Dead, 1 Apology, No Clear Answers: Has the U.S. Committed a War Crime?

Hospital Taliban Fire
Fires burn in the MSF emergency trauma hospital in Kunduz, Afghanistan, after it was hit and partially destroyed by aerial attacks on October 3, 2015.

In the wake of the Taliban’s takeover over the Afghan city of Kunduz last week, United States and Afghan military forces have waged a fight to reclaim control of the city. On Saturday, September 3rd, the U.S. bombed a Médecins Sans Frontières/Doctors Without Borders medical facility in Kunduz. The facility, the only facility of its kind in that region of Afghanistan, regularly served thousands of patients for free. Médecins Sans Frontières has called for an independent investigation into what they have deemed a “war crime.” This tragedy has led many in the general public to wonder: What qualifies as a war crime?

The International Criminal Court lists the definition of a war crime as, “grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts “not of an international character” listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale.” It goes on to list prohibited acts, which include: “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals.” The Geneva Conventions protect war victims and make up the foundation of international humanitarian law.

If a war crime includes intentionally attacking hospitals, the question becomes: Did the United States intentionally hit the medical facility in Kunduz? The response from U.S. officials has included a variety of conflicting explanations. Initially, the U.S. military said Taliban fighters were directly firing on U.S. service members in the vicinity of the hospital and a hospital may have been struck. There were also reports that Taliban members had taken up positions within the hospital and were using it as a firing position.  The next explanation, from General John Campbell, commander of U.S. forces in Afghanistan, stated that Afghan forces had called for air support from the U.S. military, admitted that the hospital had in fact been struck accidentally and was “a U.S. decision made within the U.S. chain of command.”

With conflicting explanations and a multitude of unclear facts, determining whether this was in fact a war crime requires a clear understanding of the factual happenings on the ground and the decisions leading up to the strike on the hospital. Médecins Sans Frontières has called for an independent investigation of the attack, saying that an independent investigation would help ensure “maximum transparency and accountability.” It is currently advocating for the first ever use of the International Humanitarian Fact-Finding Commission. The Commission was established by the Protocols to the Geneva Conventions and serves to investigate grave breaches and serious violations of international humanitarian law. It has never before been called upon to investigate. Meanwhile, President Obama has apologized to Médecins Sans Frontières and assured it that the U.S. is conducting a joint investigation with NATO and the Afghan government.

Until we know whether or not the attack on the Médecins Sans Frontières hospital was truly an accident and whether or not there were Taliban fighters using the hospital as a launching ground for attacks, there cannot be a definitive answer as to whether these attacks qualify as “war crimes” under international humanitarian law. If the answer becomes clear, it will only lead to more questions. What next? How do we prevent this from happening again? How will the U.S. respond to Médecins Sans Frontières, the families of those ten adults, three children, and twelve Médecins Sans Frontières staff who were killed? Only time, and a truly transparent investigation, will tell.

Julie Marling is a 3L at the University of Denver Sturm College of Law and is the Training and Cite and Source Editor on the Denver Journal of International Law and Policy.

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The Protestant Ethic and the Spirit of Slavery

If “idle hands are the devil’s workshop,” and if our own hands are not idle when we use machines and other property to do our work for us, then does the resulting prosperity guarantee our salvation? Though the title of this blog is not an entirely fair play on Max Weber’s, The Protestant Ethic and the Spirit of Capitalism, the ownership of human beings as commodities certainly relates to the drive for profit because there is little doubt that unfettered capitalism itself is the result of slavery. However, the intention of this blog is not to point out the good and bad aspects of capitalism; rather, the intention is to point out the prevalence of modern day slavery and how easily we can end it by changing our views on what “success” entails, and by increasing racial and gender equality. We can accomplish this by simply becoming aware of what is happening and how we are each contributing to its continuance.

December 2nd is the United Nations’ International Day for the Abolition of Slavery, and this blog is in observance of that day. The International Day for the Abolition of Slavery is significant because people throughout the world are encouraged to publish material on slavery to raise awareness and combat its continuance.

Modern slavery is defined within International Law as: “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” In plain English, the person is held against their will under the constant threat of injury or death and is forced to work without pay. Slavery exists in every country in the world and includes: sex trafficking, domestic servitude, bonded labor, child labor, and forced labor, among others. Today, it is estimated that there are 35.8 million people held in slavery worldwide, although the actual number is likely much higher.

Increased globalization amplified the profitability of slavery through cheap labor in various parts of the world. Many of the items we use daily, such as cotton, sugar, cocoa, rugs, and bricks are likely to have connection to slavery. Once these items reach the global market, it is difficult to track their source.

The people held in slavery are themselves are viewed as investments and are42418-front-new cheaper today than at any other time in history. They are usually young because the elderly and very young cost more to maintain and cut into revenue. Experts on modern slavery, such as Kevin Bales, describe them as “Disposable People” because they are merely thrown away or killed when they no longer produce enough profit for the owner.

Despite numerous treaties and law abolishing slavery throughout the world, slavery remains. Because of this, we must go beyond the anti-slavery laws themselves and pay closer attention to laws which prohibit discrimination based on race and gender. This is because these are the groups at the most risk of poverty due to discrimination, thereby placing them at increased danger of being taken into slavery.

There are many things we can do to help end slavery as individuals. For instance, we must be aware that it may be happening right next door to us, that we may be purchasing products that are connected to slavery, and we must be willing to pay more for certain products since “low prices” can be deceptive. For instance, with chocolate, low prices make slavery more prevalent because the farmers cannot pay for the labor and the company either goes under or the owners begin enslaving people to produce the cocoa. This is one reason why boycotting certain products can actually contribute to slavery. In other cases, such as carpets and rugs, boycotting is a viable solution as is paying extra for rug labels which provide some assurance that the carpets were not produced through the use of slave labor.

If we remain locked in the iron cage and continue placing profit above all else, believing that “whoever dies with the most toys wins,” we will eventually be unable to continue blinding ourselves to the actual cost.

Bernadette Shetrone is a 3L at University of Denver Sturm College of Law and Staff Editor on the Denver Journal of International Law and Policy

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Who is to Blame for the Venezuela – Colombia Border Crisis?

Columbian Crossing River
Many Colombians are leaving Venezuela by crossing the Tachira river. (courtesy of BBC)

In an effort to restore peace and order along the Colombian border, the President of Venezuela, Nicholas Maduro, has declared a state of emergency. Border crossings between Venezuela and Colombia have closed, martial law has been enacted in border regions, and Colombians living in border towns in Venezuela illegally were given 72-hours to pack up and leave their homes, many fleeing back across the river to Colombia. This decision comes after smugglers and border police engaged in gunfire last week, leaving three soldiers wounded.

The identity and nationality of these smugglers is still yet unknown, an investigation is underway. One other individual involved in the attack was arrested, he is a Venezuelan citizen. President Maduro has accused Colombian paramilitary individuals of having a link to Colombia’s former president, Alvaro Uribe.  However, Colombian President, Juan Manuel Santos has suggested that the smuggling problem is rooted in Venezuela, not Colombia. For many years, Venezuelan citizens have used the border to smuggle gasoline and other Venezuelan goods into Colombia in order to sell them at higher prices to Colombian citizens. This smuggling practice is facilitated by Venezuela’s government subsidies which allow Venezuelan citizens to use these subsidies to purchase food, cosmetics, and gasoline that they later re-sell in Colombia, which has resulted in these items becoming scarce inside Venezuela. However, President Maduro attributes the scarcity of these items to mismanagement and not to smuggling. The black market economy originating in Venezuela has been the source of income for Venezuelan families living along the border of these two countries for some time.

Marked "D"
Colombian President Juan Manuel Santos said the marking of houses reminded him of “bitter episodes” in history. (courtesy of BBC)

The state of exception instituted by President Maduro has been the subject of international criticism. Venezuelan army soldiers have marked the cinder block homes of these evicted families with a red letter “D” indicating demolition.  The declaration of a state of emergency allows Venezuelan soldiers to search businesses without a warrant. News outlets around the world have condemned these actions. The families with only a 72-hour eviction notice, have been forced to walk across knee-high river waters with their belongings, leaving the oil-rich country where they established a life behind. There have been more than 1000 Colombian citizens that have been deported since the law was implemented. Although President Maduro blames these citizens for Venezuela’s smuggling and violence problems, these families have fled poverty, famine, and violence and moved to Venezuela hoping to benefit from the country’s natural resources labor. More than 800 Colombians live in this border region. President Santos has already pledged to providing government subsidies for these families and helping these them find a home in Colombia.

The effects of this border closing have already been seen in both countries. In Colombia there is a scarce supply of gasoline, leaving many motorists competing for fuel to power their engines. In Venezuela, the trade halt has left many poor families that relied on this trade without means to support their families. Although President Maduro is satisfied with the halting of the smuggling practice, this border closing has done anything but address the root of the smuggling problem, which originates in Venezuela.

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

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Nanda and Wedgwood

Three International Law Professors, Tied Together by the Moral Urgency to Redeem the World from Ethnic Conflict

Professor Ruth Wedgwood’s Keynote Speech –“Human Security and the Tradition of  Myres McDougal” at the 2012 Regional Conference of the American Branch of the International Law Association, held at the Sturm College of Law

DU’s Sturm College of Law was honored to receive Professor Ruth Wedgwood as the keynote speaker for the International Law and Human Security in the 21st Century Conference, held here on March 2, 2013. Human Security was chosen as a timely topic for the 2012 Regional Conference of the American Branch of the International Law Association (ABILA).

Nanda and Wedgwood

Professor Ruth Wedgwood, the 2013 Myres S. McDougal Distinguished Lecturer, and Professor Ved Nanda

Professor Wedgwood is the Edward B. Burling Professor of International Law and Diplomacy and Director of the International Law and Organizations Program at Johns Hopkins University.  She currently serves as President of the American Branch of the International Law Association.  Among her many accolades, she has worked to support the realization of human security as U.S. member of the United Nations Human Rights Committee in Geneva, calling on countries to meet the standards of the International Covenant on Civil and Political Rights.  She was director of the Council on Foreign Relations Ford Foundation program on international law and organizations, convening a diplomatic roundtable of U.N. ambassadors, senior U.N. staff, NGO’s, and corporate leaders to address security crises and post-conflict reconstruction in areas such as Bosnia, Rwanda and Kosovo.  With an insider’s understanding of the politics and protocols of the U.N., she  was able to suggest how one can improve U.N. performance in realizing human rights and human security, a goal that  reflects the spirit of Myres McDougal.

Myres McDougal–the aftermath of World War II

Myres S. McDougal

Myres S. McDougal

Myres S. McDougal, or “Mac” to those who knew him, was a professor of international law at Yale Law School from 1934-1998. Our very own Professor Ved Nanda was one of his most prominent protégés, and the legacy is carried on through the McDougal lecture at Sturm College of Law.  McDougal’s greatest legacy, however, is his contribution to international law and theory on a global scale. Yale at the time was an intellectual center of the New Deal, with scholars such as Jerome Frank.  They were tired of the purely doctrinal way of teaching law and believed that one should look at law on the ground.  As Karl Llewellyn taught, the ambit of view must include the law as practiced, law on the street, law for poor people, not confined to the abstract rules recited in a black book.  Harold Lasswell , who was a sociologist and psychologist, was also influential at the time.

McDougal saw his role as restoring a workable international order after World War II.  As Professor Wedgwood noted, in a sense, he systematized pragmatism –pushing for law to be a subtle mixture of positive rule and moral aspiration.  He emphasized that “the global public order of human dignity” should undergird any legal system.  His goal was to create a universal language for such an inquiry. Americans are pragmatic by nature, we reason from example, we don’t like rules, we like practice, we are folksy lawyers, we remember, if only instinctively, the time when the dockets of law and equity were fused.  McDougal captured what was best about American pragmatism and generalized it for an international audience. He was trying to liberate international students by showing them that they didn’t just have to recite black letter texts–even though European students still sit in a large classroom and listen to professors reading their treatises. McDougal was also fighting the cult of positivism –the claim that law is whatever the sovereign directs, the rules you read in a book. There has always been a debate about when to attempt codification of a legal system –and McDougal argued that codification was never a good idea, that the law would never be settled, that it was made and remade constantly, that it assessed what went right and wrong with moral challenges. McDougal believed that it is good to craft a language that would describe the process, but not to “patent the product.”  As Professor Wedgwood suggests,  he was also warning of the worst side of a purely positivist conception of law – namely, the acceptance in Nazi Germany of a fascistic and racialist positivism, and the imposition of the law of party rule in Communist Russia and Eastern Europe. He was simultaneously fighting a retrospective war against American isolationism. He adopted a slightly artificial vocabulary–some American students had a hard time grappling with it, talking in an abstract way about American law–but he was addressing himself to an international audience as well and trying to avoid parochialism.

The Tradition of Myres McDougal–post Cold War international law

Professor Wedgwood described her own discovery of the “participant anthropology” of international law and politics at the United Nations.  The procedures of the United Nations as described in the Charter often do not reflect the political drivers of its decisions, much less the role of the regional groups and Cold War caucuses that have often governed its decisions.  The U.N. was a particular disappointment in its failure to respond adequately to the bloodshed in Bosnia and Rwanda.  Professor Wedgwood noted a dilemma of liberal societies – that that when there is a cosmopolitan mixture of groups and beliefs, the introduction of ethnic or ideological conflict can lead to particular brutality.  If Croats and Serbs and Muslims are at war with each other, one may doubt the friendship even of a neighbor. He may have been your friend, but then he’s frightened of you, or compelled by his compatriots.  Integrated communities can become the most dangerous when conflict reaches a tipping point, as neighbor doubts neighbor, and groups self-segregate through violence.  The examples of the partition of India and Pakistan and the conflicts in Bosnia and Croatia reflected this process. The profound aspirations of international law scholars in the period after World War II reflected the nature of these tragedies.  Indeed, Professor Nanda’s own life history, as a scholar and ethicist in international law, is no doubt founded in part on his own family’s experience of the partition in India and Pakistan.

Professor Wedgwood also discussed the application of McDougal’s philosophy of international law since the end of the Cold War.  With the collapse of the Soviet Union, Security Council action has no longer faced an automatic veto by Russia or China.  There was the hope that the U.N. would rise to the level of effective governance that was once supposed in 1945.  But then Bosnia and Rwanda happened. Countries proved to be reluctant to take part in peacekeeping missions.  Peacekeepers were instructed to report and retreat –to distribute food but not to prevent ethnic killing. In Rwanda, U.N. peacekeeping troops were withdrawn as soon as the real fighting began, and the U.S. said it would veto any new mission for peacekeepers amidst the genocide, even if the peacekeeping force could be reconstituted by other countries without United States participation. Over time, many U.N. members have become more skeptical of the efficacy of outside intervention in difficult missions with no seeming end, and opinion is still divided.

To be sure, there is room for some interpretive latitude in international law. Peacekeeping wasn’t discussed in the framing of the U.N. Charter –rather, Secretary General Dag Hammarskjold saw a need and filled it.  As the saying goes, peacekeeping is authorized by “Chapter 6 ½” of the U.N. Charter – in other words, somewhere between the conciliatory methods of Chapter 6 and the coercive methods of Chapter 7.  It makes sense, so we read it into the text.

The international community has also ‘reread’ Chapter 7 in defining what is a a threat to international peace and security.  One could have read it to be just about world wars or international wars –Germany invading France, or Stalin sending troops into Hungary. . But in the 1990s, the looming challenge was ethnic fighting in countries that were collapsing. Quelling the violence of ethnic conflict seemed morally compelling, and so the interpretive reach of Chapter 7 was expanded. In addition, the diffidence of some Security Council members, such as China, was accommodated by procedural innovations.  Since 1945, the abstention of a member of the Permanent Five powers in the Security Council has been read to qualify as the required  “concurrence” under the U.N. Charter.  Hence, even when China did not wish to authorize the use of force, it might be content to abstain.  So, too, in the 1990’s, China’s views were accommodated by greater specificity in resolutions, indicating what particular part of a mission might be authorized under Chapter 7 – a practice fondly deemed “Chinese Chapter 7”.

And then there’s R2P – the “Responsibility to Protect.” The power of the idea may disguise the fact that its legal grounding is less certain. It was a phrase coined in 2001 by a ”high level panel” of retired statesmen and stateswomen — “elegant formers” –assembled by Secretary General Kofi Annan, including the former Secretary General of the Arab League and other notables.  The High Level panel concluded that states have a duty to protect civilians against violence and depredation – including states acting collectively – and reflects the elegiac speech of regret delivered by the former Secretary General to the General Assembly in 1999.  Mr Annan put the dilemma to the members of the General Assembly in the aftermath of Rwanda — what if the international community faced again an emergency situation and the question of how to prevent a genocide, but could not win a political resolution of authorization for the use of armed force from the Security Council.   As Secretary General Annan asked, if tens of thousands of lives were at stake but the Council was deadlocked, what should one do?  Could a state provide rescue without formal legal permission?  Mr. Annan left it as a pilgrim’s question to the wise man, but in a sense he answered it by asking the question.  It might be within the realm of moral possibility to intervene, even if the formal text of authorization was lacking.

The Legacy of Myres McDougal–the future of international law

Ruth Wedgwood

Professor Ruth Wedgwood of Johns Hopkins. DU Law’s 2013 Myres S. McDougal Distinguished Lecturer

Professor Wedgwood commented on her family’s own legacy in the American labor movement, in particular, the history of the International Ladies Garment Workers Union, for which her father was general counsel from 1947 to 1992.  In the early days of the garment industry in New York City, the 1911 “Triangle Fire” presented a clear moral challenge to people of conscience and changed American politics.  In the Triangle Fire, dozens of young women laboring in a sweatshop were forced to jump to their deaths from a locked factory building which lacked fire escapes, while police and firemen stood by helplessly. That scandal pushed the passage of safety legislation and the growth of the American labor movement.  Now we operate in a global supply chain, where garments are produced in South Asia in the cheapest available locale, moving from Sri Lanka to Bangladesh to Myanmar. The ability to monitor the decency of working conditions is challenged by the shifting array of hundreds of subcontractors, the corruption of local policing, and the emphasis on cost minimization by American importers – although the Congress retains a political instrument in its regulation of preferential tariffs for imports. Professor Wedgwood believes the global supply chain will be a real challenge for our moral presence abroad going forward, and corporations and industry in general  will  have to consider more seriously how to provided minimum safeguards while remaining competitive.

Professor Wedgwood also discussed how the United Nations could be more forthright in meeting its own standards of responsible conduct. The United Nations’ International Law Commission – a standing organ that meets each summer in Geneva to work on draft treaties and restatements of customary law ­– has recently finished a statement of principles of “responsibility” for international organizations – parallel to its earlier work on principles of state responsibility.  Yet no sooner was this work completed in 2012, than one saw a startling evasion of responsibility in U.N. peacekeeping – for the United Nations summarily refused to address claims for compensation made by the victims of a cholera epidemic in Haiti whose origin apparently lay with international peacekeepers deployed to the island without adequate prior medical testing.  The United Nations is a poor teacher when it refuses to abide by its own standards.

Finally, Professor Wedgwood discussed some of the peculiarities of decision-making in the United Nations.  The persistence of caucuses and regional groups means that crucial meetings are often closed to others, and the decision of the General Assembly is often determined before it convenes.  It would be helpful to allow observers in regional caucuses and groups.  In addition, there is the practice of taking decisions by “consensus” rather than formal votes.  The chair of a U.N. caucus or group may exercise surprising influence by characterizing an emerging consensus (or claiming one to exist) – and announcing that it will carry the day unless objection is heard.  This often discourages dissent, since countries rely upon the backing of their regional or ideological group for a host of benefits, including candidacies for U.N. organs, staff hiring, and other resolutions.  It is a socially dense process–but we need to understand it in order to engage more effectively in U.N. politics.  The idea of a Community of Democracies within the United Nations – as an alternative to traditional regional and Cold War groupings – is one way to champion a more open debate within the organization.

Myres McDougal understood that international law is not a “read-only” phenomenon.  Its development requires moral, political, and personal skill–learning how to talk to a variety of states and regional groups, understanding their ambitions and constraints, knowing that principles can develop over time and that winning the support of key individuals can be decisive.  A diplomat at the United Nations may need to be a skilled conductor of the orchestra of politics, using persuasion, political seduction, the accommodation of personal ambition, and high principle to achieve a worthy result.

The U.N. bookshop used to sell a small and humorous book, published in French.  Its title, rendered in English, was “What do diplomats do between cocktails?”   In one sense, the answer is nothing–for cocktails are the point. “Cocktails” – read as a broad category of discursive persuasion–provide a chance  to beguile, cajole, persuade, ask for a vote as a small indulgence,  just this once, could you, please?   As Myres McDougal sensed, shaping international law is as much a sociological undertaking, as a formal legal exercise.  It’s an art form, an exercise of personality, persuasion, seduction, making it possible for people to survive politically and do what’s right.  It calls for every human capacity of eloquence, friendship, moral lucidity, and counting heads.  As such, it is an exercise in which lawyers–the lawyers who know how persuade friends and foes–have a natural calling.

Jaime Menegus is a second year law student at DU Law, a Vice President of DU’s International Law Society, and a Staff Editor on the Denver Journal of International Law & Policy.

Posted in 1TVFA Posts, 2Featured Articles, Jaime MenegusComments (2)

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