Tag Archive | "international law"

The Right to a Healthy Environment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo Credit: The Himalayan Times

Photo Credit: The Himalayan Times

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

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

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

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

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

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

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The European Refugee Crisis: Unaccompanied Refugee and Migrant Children

Photo Credit: Getty Images

Photo Credit: Getty Images

The refugee and migrant influx into Europe continues. Since January 2015 approximately 1.2 million people have journeyed across the Mediterranean in an attempt to reach Europe. The majority arrive in Europe by sea, while almost 34,900 refugees and migrants arrived by land. These individuals are fleeing economic and social breakdown such as conflict, violence, and poverty, with the largest numbers leaving Syria, Afghanistan, and Iraq.

The crisis has had a substantial impact on children. UNICEF’s advocacy brief on the refugee and migrant crisis in Europe describes this crisis as a “children’s crisis.” By the end of December 2015, 1 in 3 refugees and migrants in Europe were children. And, based on arrivals in Europe since January 1, 2016, 27% were children.

Especially vulnerable are unaccompanied children. Children are among the most at risk of refugees and migrants – at risk of trafficking, exploitation, abuse, death, rape, and detention, among others. Unaccompanied children are those under the age of 18 years old and travelling alone. In 2015, approximately 25% of child asylum claims were made by unaccompanied and separated minors. However, it is difficult to gather accurate numbers of unaccompanied children because either they are not registering at borders or the country does not allow for their identification in formal registration procedures.

So, what is global community’s responsibility in addressing the issue of unaccompanied refugee and migrant children? According to the Convention on the Rights of the Child, the protection of unaccompanied children is a state obligation. One response to the problem of unaccompanied refugee and migrant children arriving in Europe was that of the United Kingdom, which passed the Immigration Act 2016, Section 67. The Act specifies that the “Secretary of State must… make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe.” It further specifies that the number of children to be resettled will be determined by the government in consultation with local authorities. The Act does not specify a fixed number on arrivals in order to assess the local governments capacity and ability to help. The purpose is to resettle unaccompanied refugee children who have fled conflict in the Middle East and whom it is in their best interest to be transferred to the UK.

Although there are real considerations as to capacity and ability of countries to help unaccompanied refugee children, a greater effort should be made by the global community in collaboration with one another and individually to assist this especially vulnerable population as well as the refugee and migrant population as a whole.

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

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Assisted Suicide: the Thin Line Between Dying With Dignity And Premeditated Murder

Photo Credit: ODYSSEY; Sarah Ann Bradford, Assisting Murder or Assisted Suicide?

Photo Credit: ODYSSEY; Sarah Ann Bradford, Assisting Murder or Assisted Suicide?

Imagine you are in unbearable pain. Every single moment of your life. Only drugs that your doctor prescribed to you hold this pain manageable to the extent that you are not screaming, that you can fall asleep. Even when you sleep, you are not getting that peaceful rest. You fall into a deep hole of drugs, drugs that keep you almost painless, but not emotionless. A few months ago your doctor diagnosed you with an incurable disease. You tried several treatments; you kept trying for all these months, but nothing helped. You are dying. Dying slowly. Your disease eats your body from inside; it eats your brain, your mind, and your memories. Your memories… you lived your life fully, you worked, you raised your children, they are all grown up by now and you already have grandkids. These little angels… Your children, your grandchildren. Thoughts about your family keep you awake at night more than your pain from the disease does. You hate, you despise until your old fingers tremor that your beloved family is seeing you slowly dying, dying helplessly and in pain. You have already arranged all your estate, you wrote a will. You are waiting for God to take you away. But not. Your doctor told that you might live for another month. You are still competent. You still have feelings. Yet you know that inevitably comes the moment when you will not be able to care for yourself anymore, you will be fed by feeding tube, wear diapers, confined to a hospital bed. You will lose the last piece of dignity. And your family will see that. It breaks your heart. There ARE things worse than death. You ask for death… with dignity.

Does a competent terminally ill person have the constitutional right to die with dignity? The right that incorporates the assistance of a doctor in obtaining drugs that the person can take to end her own life? How can any country that declares personal freedom for people and that has outlawed torture deny its own citizens the right to peacefully die? Isn’t it humane that people should be allowed, when the time comes, to end their lives with dignity without punishing those who ease their passing? Isn’t it humane to allow people to peacefully die if and when they determine that they want to end their lives? If the disease cannot be cured, if all that medicine can do is to slow the spread of the disease or mitigate dreadful, unbearable pain with drugs, isn’t it humane to allow assistance of a doctor to end the life painlessly? Doctor-assisted suicide is a complex and deeply personal subject; it affects all of us and our families as we approach the end of our lives. Assisted suicide offers terminally ill people the “bodily integrity” to humanely end their lives without lengthy suffering. When terminally ill and suffering people have only months, weeks or days to live, we should respect and honor these people’s decisions to end their suffering and pain, to allow them “end-of-life option.”

Doctor-assisted suicide is a controversial subject and only a few countries currently allow it. Countries that allow some form of assisted suicide are Germany, Switzerland, Belgium, Netherlands, Japan, Colombia, Albania, and Canada. All countries except Switzerland forbid foreigners from obtaining aid in dying. All countries except Belgium currently forbid people with psychiatric conditions such as bi-polar disorder or schizophrenia to apply for doctor-assisted suicide. In the United States, assisted suicide is legal in six states: Oregon, Washington, Vermont, New Mexico, Montana, and California. And more states are coming. For example, the D.C. City Council already gave initial approval to allow physician-assisted suicide and a final vote on the bill will be on November 15, 2016. Council member Kenyan R. McDuffie called his vote on assisted suicide as a “toughest vote,” loosing his composure while describing “natural” death of his father and wishing it to no one to watch how the loved one suffers and slowly dies from terminal illness. The state of Colorado will vote on the assisted suicide today, November 8, 2016. In the rest of U.S. states, aid in dying is still a criminal offense, felony manslaughter.

Oregon was the first U.S. state to approve doctor-assisted suicide by enacting the Death With Dignity Act in 1997. The state has no minimum residency requirement and people who want to obtain medical aid in dying only have to prove their residency to a doctor showing the doctor their driver’s license or a rental agreement. A total of 859 people have died under assisted suicide law since Death With Dignity Act was enacted. The state has no report on how many of terminally ill people have moved to Oregon to die. Yet the Oregon health authority’s annual reports show that more and more terminally ill patients have gotten a prescription for medical aid in dying. In 1998, only twenty-four people received those prescriptions, and sixteen used them. In 2015, seventeen years after the passing the Death With Dignity Act, 218 people requested prescriptions, and 132 used them. In fact, during 2015, the number of prescriptions increased by 24.4% and the rate of doctor-assisted suicide deaths was 38.6 per 10,000 of total deaths in Oregon.

Colorado “End of Life Options Act,” known as Proposition 106, is on todays’ ballot. Among several criteria for eligibility, the proposed law requires people to demonstrate that they are suffering from terminal illness and that two independent doctors verified that person has irremediable medical condition from which the person will naturally die within six months. Precluding the prospect of suicide tourism from other countries, the proposed law requires people to prove that they are residents of Colorado State. Safeguarding capacity and full consent, the proposed law ensures that people have given two oral requests and one written request, witnessed by at least two other persons, and gone through a waiting period of fifteen-days. The proposed law does not include such provisions as allowing capable of making medical decisions minors to choose assisted suicide, nor does the proposed legislation allow people in any stages of mental illnesses, like dementia, to request a doctor-assisted death. If the Colorado voters decide that the state should enact legislation allowing assisted suicide, Colorado will become a seventh state that allows the right to die with dignity.

The key aspects of assisted suicide’s medical practice now are the patient’s mental capacity, autonomy, and self-administration. All of the countries that currently allow assisted suicide ensure that dying from incurable disease and unbearable pain people have their actual choice of a peaceful death. Yet there are several strong arguments in opposition of assisted suicide. One of these arguments is a valid concern about vulnerable people. In fact, terminally ill people are particularly susceptible to overt and subtle pressures because of pain, effect of medication, and, often, depression. The elderly may find themselves under their inheritor’s undue influence and pressure to “hurry up” and die, making assisted suicide threatening the vulnerable, viewing them as expendable, “hiding killing with euphemisms,” transforming medical profession from “a healing into a killing profession.” Yet while vulnerability is a valid reason for making extra safeguards available, it is not a reason to deprive suffering people of their rights to die with dignity.

Many people struggle to balance their religious beliefs with support for the assisted suicide. Yet, as D.C. Council Member Anita Bonds rationalizes, personal feelings and beliefs do not justify an authority of “thinking for others on matters of life or death.” Indeed, in the states that already allow assisted suicide, the only people who make the decision is the patient and the doctor, but only the patient decides when to take the final medication. Assisted suicide in these states is nothing more than a medical program, nothing more than an option. As Barbara Coombs Lee, president of the national Compassion & Choices organization and a board member for the Colorado end-of-life options campaign explains, people who can use assisted suicide all suffer from terminal illness and the “choice” that they make is comparable “to the one made by people who jumped out of buildings on Sept. 11, 2001, to avoid burning to death.” To choose slow, agonizing, and painful death or to die with dignity is the most personal decision any competent terminally ill human being can make.

Some also rightfully argue that allowing medical aid in dying may lead insurance companies to find a loophole and deny coverage for lifelong medical care while “more cost-effective” option of assisted suicide is available. The line between death with dignity and premeditated murder of vulnerable is still unclear. And the law on where do we draw the line on assisted suicide requires careful consideration and more safeguards to assure that the option is solely based on the terminally ill people’ request.

All of us need to urge the government to “hold the line,” to set clear boundary when it comes to eligibility for doctor-assisted suicide, focusing on circumstances, and ensuring the safeguards are in place. The rights and protections of people with serious medical conditions should be carefully weighted. Yes, a terminally ill people should be allowed to make their final determination, should have the right to die with dignity. Yet we need to ensure that the thin line between dying with dignity and premeditated murder of the vulnerable is never crossed.

Today is November 8, 2016.  Today is the day to vote for or against assisted suicide in Colorado. Today is the day to vote for or against the right to die with dignity. What is your choice, Coloradans?

Ilona Starchak is a 3L law student at the University of Denver Sturm College of Law, the Staff Editor on the Denver Journal of International Law & Policy and the Denver Criminal Law Review.

 

 

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Decision 2016: Oh the Places We Will Go

Photo Credit: The Telegraph

Photo Credit: The Telegraph

On November 8, 2016, the Unites States will elect a new President to lead. Polls have opened, and votes are being cast. But who will win, and what impact will it have on the national stage? As the rest of the world watches, American citizens need to realize we are wading into uncharted waters with the effect our election could have on our international relationships.

Hillary Clinton, the Democratic nominee for President is no stranger to the international stage. A former U.S. Senator and Secretary of State, Ms. Clinton has been the architect of both successes and failures, but is skilled at mingling with leaders on the world stage.  Ms. Clinton’s foreign policy goals are in line with many of the beliefs of our current administration, and she plans to continue with many of the programs currently in place. She believes the role of the U.S. is to lead on the world stage, and continue to impact the lives people around the world.

Donald Trump, the Republican nominee for President, similarly has made international concerns an issue in his campaign.  Immigration, both legal and illegal, is a central theme Mr. Trump has focused on from his initial campaign launch. His goal to both reform the legal immigration system, as well as various proposals regarding illegal immigration, have drawn both ire and praise from people of all political stripes. Further, while Mr. Trump may not have as extensive a pedigree on the world stage as Ms. Clinton, he has shown he is able adapt to ever evolving circumstances, and has illustrated his ability to make some noise on the world stage.

Both candidates have their positives and negatives, but are viewed in sharp contrast by the general public. Ms. Clinton’s expansive views on the broader international community and Mr. Trump’s more national and immigration focused views are in direct opposition, and have given voters nearly polar opposite foreign policy positions on which to vote this cycle. And while each have polled better or worse on various issues, in the end it will be up to the citizens of the 50 states to decide what direction the country will take with respect to foreign relations.

Taken as a whole, the United States’ standing and relationships on the world stage are about to change. Whether that is for better or for worse is left to others to debate, however all Americans must realize that the winds of change are coming. As we have already seen this past year, issues of foreign independence and immigration have already impacted elections across the ocean, and very well could have an impact here in the United States. As voters head to the polls, we should all be mindful of the old saying, “elections have consequences.”

Chris McGowne is a 3rd year night law student 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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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

Picture

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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University of Denver Sturm College of Law

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