Tag Archive | "international law"

Extraterritorial Internet Censorship and the Need for a Global Legal Standard

“[T]he right to freedom of expression on the Internet is an issue of increased interest and importance, as the rapid pace of technological development enables individuals all over the world to use new information and communications technology.”[1]

Photo Credit: Pixabay

Photo Credit: Pixabay

In 2013, the United Nations Human Rights Counsel acknowledged the increasing interest in ensuring the freedom of expression.[2] This concern is not new, nor has it been alleviated.[3] Single-state actors are increasingly depriving non-citizens of free speech by implementing world-wide censorship orders on private companies.[4]

This article will describe the background of adopted declarations and covenants regarding freedom of expression. Next, this article will discuss the practice of worldwide censorship by single-state actors. Google will be discussed in depth as well as other recent developments of single-state global censorship. Finally, I will propose a legal test to be adopted globally by an international convention. This test will aid courts to decide whether one state should impose their will on global communications and provide an appellate process. The standard consists of one proposed by an intervener in Google and is a fair, cautious, and last-resort style approach that respects cultural differences and the inherent right of a sovereign state to govern its territories.

No country should control the type of online content available in other countries. To do so creates a race to the bottom where countries with competing interest, culturally and economically, will create stricter and stricter rules that regulate all aspects of freedom of expression on the Internet.[5]

BACKGROUND

Article 19 of both the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) aim to protect the right to receive information regardless of frontiers and through any medium.[6] It has become customary to emphasize that individuals enjoy the same rights online as they do offline.[7] In the context of internet censorship, the ICCPR can be extended to say freedom of expression may be limited “[f]or the protection of national security or of public order, or of public health or morals.”[8] Without restriction, the UDHR states that freedom of expression should be “without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”[9]

Any restriction must be precise enough and publicly accessible in order to limit the authorities’ discretion and provide individuals with adequate guidance.[10] To be necessary, a restriction must be more than merely useful, reasonable or desirable.[11] It is also well established that necessity requires an assessment of proportionality.[12] Proportionality requires demonstrating that restrictive measures are the least intrusive instrument among those that might achieve their protective function and proportionate to the interest to be protected.[13] Notwithstanding a difference of application within states, there have been an increasing number of courts that impose their will on the entire world. Several organizations around the world have been struggling to recommend the best course of action moving forward.[14] The next section exemplifies why necessity and proportionality tests are not enough.

GOOGLE V. EQUUSTEK SOLUTIONS, INC.

On June 28, 2017, the Supreme Court of Canada ordered that Google, Inc. must de-index websites identified by the court through a worldwide injunction.[15] Google is a non-party to the original suit, but while a court order does not bind non-parties, “anyone who disobeys the order or interferes with its purpose may be found to have obstructed the course of justice and hence be found guilty of contempt of court.”[16] Equustek, a small tech company in British Columbia, sued its former distributor, Datalink Technology Gateways (“Datalink”), which was selling allegedly counterfeit versions of its products online.[17] Equustek won a default judgement and acquired several injunctions that proved ineffective. In a last resort effort to stop Datalink, Equustek won an injunction to have Google de-list all of Datalink’s websites in Canada.[18] That injunction did not stop Datalink from hosting websites outside Canada, so the court granted a worldwide injunction. Google appealed, but was denied as only a theoretical argument.[19]

The Court concluded that Equustek faced irreparable harm to its intellectual property and profits because Google has a seventy to seventy-five percent market-share of global Internet searches.[20] The court further agreed with the court below, finding that: (1) in personam jurisdiction, thus the court could make an order with extraterritorial effect; (2) courts of inherent jurisdiction could grant equitable relief against non-parties; (3) an interlocutory injunction against Google was the only practical way to prevent Datalink from flouting the court’s several orders; and (4) since there were no identifiable countervailing comity or freedom of expression concerns that would prevent such an order from being granted, the interlocutory injunction should be upheld.[21]

This decision immediately garnered outrage related to the fourth point above.[22] The Canadian decision opens the door for other countries to interpret what “freedom of expression concerns,” are and what “proportional” to preventing “irreparable harm” means. For example, some countries may want to order a worldwide injunction on religious websites, websites hosting educational materials, or websites aimed at empowering women – the ends are boundless. Practically speaking, the refusal to classify the sale of counterfeit products as free speech may be correct. However, the application of the rule of law, to allow any singular sovereign to impose its judgment on the rest of the world, contrary their own beliefs, laws on censorship, or due process, is dangerous to international human rights.

OTHER RECENT DEVELOPMENTS

Canada’s ruling is not the first of its kind. In 2014, Google Spain lost a case where the highest court in the Europe declared that it must remove global listings of personal information on third-party websites upon request.[23]

Two years later, the so-called “right to be forgotten” led to a $112,000 fine from a case in France.[24] Google has fought hard to limit single-state legal decisions to its local operations like Google.fr in France, saying that applying the ruling worldwide would infringe people’s freedom of expression.[25] France, in opposition, claims that privacy and human rights are best served by protecting the personal data of individuals because individual privacy is a fundamental human right.[26] This clear divergence in fundamental values exemplifies an impending global crisis that is ripe for global solution. The facets of differences in interest between a large multinational corporation and a sovereign state continue to grow – but in this instance, there may be a solution.

THE NEED FOR A WORLD STANDARD FOR EXTRATERRITORIAL CENSORSHIP

In Google, there was a proposed standard for the Canadian Supreme Court to use, but it was completely ignored.[27] The Electronic Frontier Foundation’s (“EFF”) interest is to propose a:

“principled test, with specific requirements, as guidance for Canadian courts when considering the granting of mandatory worldwide injunctions affecting non-parties in foreign jurisdictions, particularly where such orders restrain free expression on the internet…the extraterritorial effects of mandatory worldwide injunctions that restrain free expression on the internet are anathema to judicial comity.”[28]

With few modifications, the EFF test should be applied in all courts bound by an international convention so that the rights, values, and sovereignty of all states are respected. This two-prong test runs akin to the “strict scrutiny” test used in United States federal courts.[29]

First, the threshold question should be whether an order with extraterritorial effect may offend another state’s core values or run contrary to the law of any jurisdiction whose citizens the order might affect – with the burden of proof resting on the plaintiff seeking worldwide injunction.[30] If there is a “realistic possibility” that an order may offend another state’s core values or be against its laws, the order shall not be made because of an exceedingly high burden on the plaintiff.[31]

If the proposed injunction passes the first prong, the plaintiff must then meet each element of the second prong by proving: (1) a strong prima facie case on the merits; (2) substantial and irreparable harm to its interest; (3) no reasonable alternative will prevent such harm; (4) the proposed order is narrowly tailored to minimally impair freedom of expression; (5) the order is technically feasible and enforceable; and (6) the beneficial effects of the order will outweigh the detrimental effects on the rights and interests of the enjoined party and the public, including the effects on the right to free expression.[32] In addition, this proposed framework would include leave to appeal for certiorari in a neutral international court.

This test presents an extremely high burden, but is open to flexible use in practice. The first prong will allow a court to receive amicus briefs from other states, industries, and human rights groups alike for review. Thus, the first prong promotes a comprehensive forum that can be extended or limited to the extent the court pleases.

The second prong provides a necessary quest for validity and viable alternatives. A strong prima facie case with substantial irreparable harm should be proven in any case regardless. A search for reasonable alternatives is a rational approach for an injunction effecting several billions of people. A narrowly tailored injunction prevents runaway courts from imposing their will on the world, as they currently do.[33] Then, to ensure redressability, the remedy must actually be technically possible, meaning that a company like Google or Bing has the technological capability to comply without the need of constant oversight by the court.

The most flexible, yet difficult element would likely be the last element that provides a balancing test, benefit versus detriment. To illustrate, the United States currently allows pornography, while several countries do not. The United States bans terrorist organization websites, but others do not. Some countries have strong piracy laws, while others have none. Each of these policies stem from fundamental values where policy decision makers balance benefit versus detriment. This presents a problem because courts may abuse the proposed test on these grounds.

However, the only balancing consideration should be on human rights and the impact on freedom of expression, for which there is a long history in international law.[34] Thus, an independent, appellate level international court is necessary. This court should consist of a tribunal unbiased by their cultural norms, and as large as necessary.

CONCLUSION

The decision in Google has raised the issue before us to a tipping point. The proposed convention contained here is meant to spark a meaningful debate in the United Nations and beyond. There will need to be many details negotiated in order for a convention, rather than a resolution, to be passed. The proposed convention intentionally omits any cultural or value-based biases. The only common value, which will be the driving force to adopt this convention, is the respect for freedom of expression. Each state has the right to decide what that means for itself, but not for all.

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

______________________________________________________________________

[1] Human Rights Council Res. 32/13, U.N. Doc. A/HRC/RES/32/13, at 7 (July 1, 2016).

[2] H.R.C. Res. 32/13, supra note 1, at 2.

[3] See generally Reuters in Ottowa, Google Can Be Forced to Pull Results Globally, Canada Supreme Court Rules, The Guardian (June 29, 2017, 2:46 PM), https://www.theguardian.com/technology/2017/jun/28/canada-google-results-supreme-court; Jeff J. Rogers, Google Must Delete Search Results Worldwide, Supreme Court of Canada Rules, Fortune (June 28, 2017), http://fortune.com/2017/06/28/canada-supreme-court-google/.

[4] Google Inc. v. Equustek Sols. Inc., 2017 CarswellBC 1727 (Can.) (WL).

[5] See Kent Walker, A Principle That Should Not Be Forgotten, Google In Europe (May 16, 2016), https://www.blog.google/topics/google-europe/a-principle-that-should-not-be-forgotten/

[6] International Covenant on Civil and Political Rights art. 19(2), opened for signature Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; Human Rights Comm., General Comment No. 34 on Article 19: Freedoms of Opinion and Expression, ¶ 15, U.N. Doc. CCPR/C/GC/34 (Sep. 12,2011) [hereinafter UDHR].

[7] Human Rights Council Res. 32/38, U.N. Doc. A/HRC/32/38, at ¶ 6 (May 11, 2016).

[8] ICCPR, supra note 6, at 178.

[9] UDHR, supra note 6, at 75 (emphasis added).

[10] H.R.C. Res 32/38, supra note 7, at ¶ 7; See, e.g., UDHR, supra note 6, at 71.

[11] Sunday Times v. United Kingdom, App. No. 6538/74, at ¶ 59, Eur. Ct. H.R. (1979), http://hudoc.echr.coe.int/eng?i=001-57584.

[12] See Human Rights Council 29/32, U.N. Doc. A/HRC//29/32, ¶ 36 (May 22, 2015).

[13] H.R.C. 29/32, supra note 12, at ¶ 36.

[14] See, e.g., Aaron Mackey, Corynne McSherry & Vera Ranieri, Top Canadian Court Permits Worldwide Internet Censorship, Electronic Frontier Foundation: Deeplinks Blog (June 28, 2017), https://www.eff.org/deeplinks/2017/06/top-canadian-court-permits-worldwide-internet-censorship.

[15] Google, 2017 CarswellBC 1727 at ¶ 41.

[16] MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048 (Can.).

[17] Google, 2017 CarswellBC 1727 at ¶ 3.

[18] Id. at ¶ 12.

[19] Id. at ¶ 44.

[20] Id. at ¶ 18.

[21] Id. at ¶ 20.

[22] See generally Reuters, supra note 3; Rogers, supra note 3.

[23] Case C-131/12, Google Spain SL v. Agencia Española de Protección de Datos, 2014 E.C.R. 314; Court of Justice of the European Union Press Release 70/14, An Internet Search Engine Operator is Responsible for the Processing that it Carries out of Personal Data Which Appear on Web Pages Published by Third Parties (May 13, 2014).

[24] Mark Scott, Google Fined by French Privacy Regulator, New York Times: Technology (March 24, 2016), https://www.nytimes.com/2016/03/25/technology/google-fined-by-french-privacy-regulator.html?_r=1.

[25] Scott, supra note 24.

[26] National Commission of Informatics and Civil Liberties Deliberation No. 2016-054, Imposing a Monetary Penalty Against Google Inc. (March 10, 2016).

[27] Brief of Intervenor Electronic Frontier Foundation, Google Inc. v. Equustek Sols. Inc., 2017 CarswellBC 1727 (Can.) (WL) (No. 36602) [hereinafter EFF Brief].

[28] EFF Brief, supra note 27, at ¶ 1-3.

[29] See, e.g., Fisher v. University of Texas at Austin, 136 S. Ct. 2198, 2214 (2016)

[30] EFF Brief, supra note 27, at ¶ 26.

[31] EFF Brief, supra note 27, at ¶ 27.

[32] EFF Brief, supra note 27, at ¶ 28.

[33] Google, 2017 CarswellBC 1727 at ¶ 53.

[34] See generally ICCPR, supra note 6, at 173; UDHR, supra note 6, at 71.

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China’s Trap in the Waters Around Guam

Photo Credit: UNCLOS, CIA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

Photo Credit: Judith Hartmann

Photo Credit: Judith Hartmann

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

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

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

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

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

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

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

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

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

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

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

Photo Credit: AP Photo/David Zalubowski

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

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

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

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

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

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

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

 

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

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

Image Credit: UNHCR

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

How do they apply?

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

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

What is different about the process for Syrian refugees?

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

What next?

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

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

 

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

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

Photo Credit: EPA

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

What is causing it?

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

What is the current status?

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

Where are the refugees going?

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

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

 

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

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RICO Did Not Intend to Rebut the Presumption Against Extraterritoriality

Photo Credit: AP Photo

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

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

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

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

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

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

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

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

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

  1. Morrison v. National Australia Bank Ltd.

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

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

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

  1. Kiobel v. Royal Dutch Petroleum Co.

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

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

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

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

 

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

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Time to Rethink the Continuing State of Emergency in Turkey

Photo Credit: Daily Sabah

Photo Credit: Daily Sabah

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

 

Background and the Growing Process

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

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

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

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

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

 

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

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

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

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

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

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

 

Accusations Through the Broad Definition of Terrorism

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

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

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

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

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

 

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

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Venezuela in Crisis: A Socialist Dystopia

Caracas Dystopia

Photo Credit: Federico Parra |AFP | Getty Images

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

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

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

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

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

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

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

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

IPM_122634091

See: IP Magazine

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

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

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

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

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

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

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

References

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

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

 

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

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