Tag Archive | "United Nations"

The Impact of Drug Enforcement Policies on Transnational Organized Crime in Latin America: A Case Study

Photo Credit: AP

“For illicit drugs, organized crime is sine qua non. In other words, organized crime can exist without drug trafficking, but illicit drugs cannot live without organized crime.”[1] This quote illustrates the long standing and infamously mutually beneficial relationship between organized crime and illicit drug trafficking. While the public threat of this relationship is long recognized and well understood, the solution is far less clear-cut. While the majority of the international community has stood with the consensus of prohibition and enforcement, in recent years countries have begun to reexamine this approach for a variety of reasons. [2] Proponents of replacing prohibition with regulation have cited a variety of social issues to support their arguments, such as limiting violence from criminal organization and reducing illicit drug use.[3] This article will briefly survey the relationship between drug trafficking and modern organized crime and the modern controlling international law on illicit drugs. Then, the article will examine the effect, if any, of two different styles of drug laws on combatting organized crime through Uruguay’s landmark policy of marijuana decriminalization and Mexico’s hard-lined approach to drug enforcement and organized crime.

Modern Organized Crime and the Illicit Drug Market

The United Nations Convention against Transnational Organized Crime defines organized crime, as “a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit…” [4] The very nature of transnational illicit drug trafficking, which typically involves multiple actors committing drug trafficking offenses over a period of time, motivated by financial gain, results in the majority of drug trafficking groups fitting into the U.N.’s definition of organized crime.

Given the profit-driven focus of most drug traffickers, the illicit drug trade is often seen as the most lucrative activity.[5] This high profitability is attributed largely to the nature of drug consumption; unlike firearms, gems, or even human beings, drugs are constantly consumed and are hence in need of continuous supply renewal.[6] In fact, in 2014, between one third to one fifth of all revenue attributed to transnational organized crime groups was estimated to have been from drug sales.[7]

Modern organized crime has continued to evolve and shift in form and function to both survive increased efforts by law enforcement while harnessing new technology to expand drug markets and increase trafficking efficiency.[8] Recent statistics show that many criminal organizations have started to move away from the traditional rigid hierarchical organizational model, to looser “horizontal” networks, in response to efforts of law enforcement to remove key individuals and disrupt the organizational hierarchy.[9] This reorganization has allowed these groups to quickly restructure when individuals have been detained.[10] The adaptation has continued to increase across organizations. Currently thirty to forty percent of criminal organizations identified in 2017 were made up of loose criminal networks.[11] Furthermore, transnational criminal organizations have utilized advances in communication technology, transportation, and even the dark web to expand their ability to smuggle larger quantities of illegal drugs, making it more difficult for law enforcement to detect and disrupt these activities.[12]

Current International Drug Laws

For over 100 years, the international community has formally recognized and condemned the use of certain drugs. The 1912 Hague International Opium Convention became the first official international effort to control drug use and illicit drug trade.[13] Since then, several multilateral treaties have taken this idea and expanded its scope well beyond opium. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which currently includes 189 parties and eighty seven signatories,[14] focuses primarily on developing a strategy to combat transnational organized crime by creating mandates for member states to mitigate and disrupt the international drug trade.[15] The Convention requires signatories to take steps to eliminate demand within their respective countries for illegal drugs and other psychotropic substances.[16] To fulfill these objectives, the treaty maintains that member states should take steps to implement domestic criminal laws outlawing “possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption.”[17]

Mexico: A Policy of Prohibition

Mexico first outlawed marijuana use in 1920, seventeen years before the United States.[18] Over the last few decades, Mexico, in response to the well published rise in organized crime, has taken several different approaches towards marijuana and drug trafficking to curb cartel operations. During the reign of President Felipe Calderon, from 2009- 2012, the Mexican government took a strong approach to prohibition enforcement, targeting high level organization members, increasing drug interdiction at the U.S./Mexico border, and utilizing the Mexican army to combat criminal activities.[19] This led to an explosion in drug related killings, from 1,080 in 2001 to 6,587 in 2009.[20] Some experts attribute this spike to the increased interdiction efforts, saying that removing powerful organizational leaders creates a power vacuum that results in infighting, encroachment by rival organizations, and organizational splintering.[21]

In response to this spike in gang-related violence, Mexico has taken surprising steps towards relaxing their drug laws and reforming their criminal justice system. In 2009, Mexico passed a law legalizing the possession of small amounts of drugs, including 5 grams of marijuana.[22] This appears to have had minimal immediate effect on the illegal drug trade; in 2010 the FBI reported Mexico as the number one importer of marijuana into the U.S.[23] In 2015, the Mexican supreme court handed down a landmark decision in marijuana legalization, ruling that it is the right of individuals to grow and use cannabis for personal recreational use.[24] While this has not overruled the black letter law of the country, it is seen by many as a significant step towards legalization. In April 2016, in response to both the 2015 supreme court ruling and increasing disenchantment of the population towards the ongoing violence from the cartel wars, President Enrique Pena Nieto sent a proposal to the Mexican congress calling for an increase to the allowance of personal possession of marijuana from 5 grams to 28 grams.[25]

While these measures seemed promising, with homicide rates declining from 2013-2014, the homicide rate again exploded. 2016 saw an estimated 7,000-11,000 homicides (25-40% of the nationwide total) attributed to organized crime.[26] The steps taken towards marijuana legalization were named as a reason for this upswing, due in part to organized crime changing their focus from trafficking marijuana to harder drugs such as cocaine and heroin.[27]

Uruguay: Leading Latin America towards Marijuana Legalization

On December 24, 2013, Uruguay passed a law legalizing the purchase, possession, and growing of small to moderate quantities of marijuana.[28] The law allows registered users to buy up to 40 grams of marijuana a month from licensed dealers, registered growers to keep up to six plants; and “cannabis clubs” of up to 45 members to cultivate as many as 99 plants.[29] When the bill was first introduced in 2012, supporters of the bill cited both promotion of public health and reduction of organized crime among the top reasons for the supporting of the initiative.[30]

This law has been met with limited success since its inception. The price for legal marijuana undercut its illegal counterpart sold on the street, resulting in the drastic drop in price of “black market” marijuana.[31] As of 2011, 66% of all marijuana users reported they were still purchasing their marijuana from illegal dealers.[32] Despite assurances from independent sources and officials that the illegal drug market will subside over time,[33] there has been a recent increase in organized crime activity in the county. In the past several years, the number of foreign organized crime group members arrested in Uruguay rose.[34] Officials believe that this is because of recent intensified international efforts to limit Pacific drug smuggling routes, which shifted these routes to the Atlantic.[35] This triggered fear among Uruguayan officials that the country would subsequently then be used as a primary “springboard” for drug trafficking from the Americas to Europe.[36] Recent statistics seem to support this fear. In 1999, only ten kilograms of illegal cocaine were sized in the country; in 2013, this exploded into over one ton of the drug being seized.[37] The annual homicide rate for Uruguay, which historically has been astonishingly low at around 180 homicides per year, nearly doubled to 289 in 2015.[38] Finally, officials have reported that the style of killings has likewise changed drastically, with the majority of the recent murders bearing the signature of organized crime: daylight assassinations and execution style killings.[39]

Conclusion & Recommendations

The evidence discussed here supports a variety of conclusions and recommendations. First, due to the evolving nature of organized crime via loose organizational structures, advanced technologies, diversified drug trade, and global markets, legalization of only one drug within one country has a minimal impact on transnational organized crime. Additionally, policies of pure prohibition backed by hard-lined enforcement techniques do little except increase violence amongst organized criminal groups. This evidence suggests that to be effective, decriminalization needs to be on a global scale followed up with targeted enforcement. Decriminalization not only limits income sources to drug traffickers, it also frees up valuable law enforcement resources to concentrate on combatting other profit sources for organized crime. Finally, the requirements in the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances should be adjusted to allow for member states to include legalization and decriminalization policies as part of their plan to eliminate the demand for illegal drugs. Implementing these lessons learned from Uruguay and Mexico will allow nations across the world to take a collective step at eliminating transnational criminal organizations.

 

Christopher Barbera 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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[1] Engin Dumagol, The Role of Drugs in Terrorism and Organized Crime, 2 Ankara B. Rev. 46, 61 (2009), http://www.ankarabarosu.org.tr/siteler/AnkaraBarReview/tekmakale/2009-2/6.pdf.

[2] Dan web, et el, Effect of Drug Law Enforcement on Drug-Related Violence: Evidence from a Scientific Review 56-57 (2010), http://www.countthecosts.org/sites/default/ICSDP-1%20-%20FINAL.pdf.

[3] Id. at 20

[4] United Nations Office of Drugs and Crime, World Drug Report 2007, 170 (United Nations Publication Sales No. E. 07.XI.5 ISBN 978-92-1-148222-5.N).

[5] Dumagol, supra note 1, at 54.

[6] Dan Web, et el, supra note 2, at 58.

[7] United Nations Office on Drugs and Crime, World Drug Report 2017, 9 (ISBN: 978-92-1-148291-1, eISBN: 978-92-1-060623-3, United Nations publication, Sales No. E.17.XI.6).

[8] Id. at 16.

[9] Id.

[10] Id.

[11] Id. (citing European Union Serious and Organised Crime Threat Assessment 2017, Europol, at 14 (2017), https://www.europol.europa.eu/activities-services/main-reports/european-union-serious-and-organised-crime-threat-assessment-2017.

[12] Id. at 16-17.

[13] U.N. Office on Drug and Crime, The 1912 Hague International Opium Convention, https://www.unodc.org/unodc/en/frontpage/the-1912-hague-international-opium-convention.html.

[14] Status of United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, United Nations Treaty Collection (Sep. 10, 2017, 7:30 AM), https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI-19&chapter=6&clang=_en.

[15] United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances [hereinafter The Convention], art. 2, Dec. 20, 1988, 28 I.L.M. 493.

[16] The Convention, supra note 15, at 495.

[17] The Convention, supra note 15, at 494.

[18] Matt Thompson, The Mysterious History of ‘Marijuana,NPR (July 22, 2013, 11:46 AM), http://www.npr.org/sections/codeswitch/2013/07/14/201981025/the-mysterious-history-of-marijuana.

[19] David A. Shirk, Drug Violence in Mexico: Data and Analysis from 2001-2009 3, 9 (2010) https://justiceinmexico.org/wp-content/uploads/2014/09/2010_DVM.pdf.

[20] Id. at 9.

[21] Kimerly Heinle , Cory Molzahn & David A. Shirk, Drug Violence in Mexico: Data and Analysis through 2014 (2015) https://justiceinmexico.org/wp-content/uploads/2015/04/2015-Drug-Violence-in-Mexico-final.pdf.

[22] Ionn Grillp, Mexico’s Drug Law May Set an Example, Time (Aug. 26, 2009), http://content.time.com/time/world/article/0,8599,1918725,00.html.

[23] Drug Trafficking Violence in Mexico: Implications for the United States: Before the U.S. Senate Caucus on International Narcotics Control, 111th Cong., (2010) (statement of Kevin L. Perkins and Anthony P. Placido, Assistant Director, Criminal Investigative Division and Assistant Administrator for Intelligence Drug Enforcement Agency, Federal Bureau of Investigation), https://archives.fbi.gov/archives/news/testimony/drug-trafficking-violence-in-mexico-implications-for-the-united-states.

[24] Elizabeth Malkin & Azam Ahmed, Ruling in Mexico Sets in Motion Legal Marijuana, N.Y. Times, Nov. 23, 2015, https://www.nytimes.com/2015/11/05/world/americas/mexico-supreme-court-marijuana-ruling.html?_r=2.

[25] Mexico President Pena Nieto proposes relaxing marijuana laws, BBC News (Apr. 22, 2016), http://www.bbc.com/news/world-latin-america-36107947 (last visited Sep. 10, 2017).

[26] Kimberly Heinle, Octavio Rodríguez Ferreira & David A. Shirk, Drug Violence in Mexico: Data and Analysis Through 2016 2-3 (2017), https://justiceinmexico.org/wp-content/uploads/2017/03/2017_DrugViolenceinMexico.pdf.

[27] Id. at 46.

[28] John Walsh & Geoff Ramsey, Uruguay’s Drug Policy: Major Innovations, Major Challenges 7 (May 9, 2015), https://www.brookings.edu/wp-content/uploads/2016/07/Walsh-Uruguay-final.pdf.

[29] Id.

[30] Dario Klein, Catherine E. Shoichet & Rafael Romo, Uruguay to legalize marijuana, Senate says, CNN (Dec. 10, 2017 9:42 PM), http://www.cnn.com/2013/12/10/world/americas/uruguay-marijuana-legalization/index.html?iref=allsearch.

[31] Uruguay’s Year In Marijuana: 3 Successes, 3 Burning Questions, NBC News (Jan. 7, 2015), https://www.nbcnews.com/news/latino/uruguays-year-marijuana-3-successes-3-burning-questions-n281311.

[32] Guillermo G. Espinosa, Delays in Uruguay Marijuana Law Leave Door Ajar for Drug Trafficking, Insight Crime (Jan. 23, 2017), http://www.insightcrime.org/news-analysis/delay-marijuana-law-uruguay-leaves-door-ajar-drug-trafficking.

[33] Id.

[34] Michael Lohmuller, Is Uruguay the New Argentina of Drug Trafficking?, Insight Crime (May 23, 2016), http://www.insightcrime.org/news-briefs/is-uruguay-the-new-argentina-of-drug-trafficking.

[35] Gabriel Pereyra, Organized Crime is Here, El Observador Newspaper, May 23, 2016, http://www.elobservador.com.uy/el-crimen-organizado-ya-esta-aqui-n914361.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

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

Photo Credit: Kelly Roberts

Photo Credit: Kelly Roberts

Judicial Implications of Treaty Ratification

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

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

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

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

International Human Rights Law and Local Courts

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

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

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

Enacting Legislation

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

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

 

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

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

[2] Id.

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

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

[5] See 158 Cong. Rec. S7369

[6] 158 Cong. Rec. S7369.

[7] Id.

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

[9] 158 Cong. Rec. S7372.

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

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

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

[13] Id.

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

[15] Matter of Dameris L. at 849.

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

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

[18] Id.

[19] Id.

[20] Id.

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

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

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

[24] Matter of Dameris L. at 856.

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

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

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

[28] Id. at 1.

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

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

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

 

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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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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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Renewed Violence in the Central African Republic Threatens Fragile Peace

Photo Credit: Global Risk Insights

Photo Credit: Global Risk Insights

The UN Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) has reported renewed violence this week in the Central African Republic (CAR). On September 16th, after months of relative peace between predominantly Christian anti-Balaka supporters and predominantly Muslim ex-Seleka rebels, 26 civilians were killed, a UN aid worker was injured, and UN humanitarian offices were looted. The violence occurred in and around Kaga Bandoro, a market town 330km North of the capital Bangui. A spokesperson for CAR President Faustin Archange Touadera said that members of the ex-Seleka rebel group “went door to door and killed their victims[,]” including the village chief, and described the execution style killings as “a massacre.”

This recent flare in violence comes after a summer of relative calm in the country, the first since the Seleka uprising began in 2012. Last week at the UN, President Touadera said that “the [CAR] has turned its back on past dark days,” and promised a brighter future based on a four-stage framework for change: peace and security; national reconciliation; economic recovery; and justice and human rights. National reconciliation is to be achieved through a newly established hybrid criminal justice mechanism, the Special Criminal Court (CPS), established to prosecute the Seleka and Anti-Balaka responsible for extreme violence. In this fragile region of the country, renewed violence could stall efforts of the CPS to achieve the second stage of President Touadera’s plan to bring reconciliation to the nation.

In 2012, when Seleka rebels began an assault on the government of President Francois Bozize, the security situation in the CAR began to rapidly devolve. In a matter of months, ethnic violence overcame the country, and the CAR fell into a deepening humanitarian and economic crisis compounded by violence and widespread human rights violations. Following the coup in early 2013, unintegrated Christian militias came together, united under the banner of Anti-Balaka, to resist the rebel power-grab. During the conflict Seleka and Anti-Balaka fighters became engaged in a cycle of tit-for-tat retributive revenge killings. Individuals from both sides are accused of targeting civilians, murder, rape, torture, enlisting child soldiers, destroying humanitarian missions, forcibly displacing civilians, engaging in widespread persecution, looting, and pillaging. In the case of Anti-Balaka, there are also accusations of ethnic cleansing. This conflict resulted an estimated one million refugees and internally displaced persons (IDPs), the rapes of thousands of innocent women and girls, the destruction of humanitarian missions, and the death of thousands of civilians, many of them children.

In January 2014, in order to bring peace to a nation at war, the CAR government established the Transitionary National Council (TNC), approved a new constitution, and replaced coup leader Michael Djotodia with interim president Catherine Samba-Panza. In July 2014, through mediation by the TNC, Seleka and Anti-Balaka leaders signed a peace agreement which formally disbanded the Seleka alliance, and all groups were promised inclusion in the future government. These developments, however, failed to end the violence; ex-Seleka rebels who did not lay down arms, and Anti-Balaka militias, continued to commit grave atrocities throughout the country.

In April 2015, interim president Samba-Panza executed a law creating the CPS. The CPS was created to investigate and prosecute all those responsible for grave human rights violations in the country since former president Bozize took power in 2003. The CPS is the first ‘hybrid justice’ institution created through national legislation to prosecute perpetrators of mass atrocities, and is seen as an inventive and transformative mechanism which possesses the potential to end the cycles of impunity-inspired violence in the CAR. Once the CPS is established it will exist as a special court within the domestic legal system of the CAR, will have a mandate of five years, will be located in Bangui, and will include both CAR citizens and other non-CAR citizens as staff and judiciary. The official mandate of the CPS is to conduct preliminary investigations and judicial examinations, in order to try “all war crimes and crimes against humanity committed on the territory of Central African Republic since 2003.” Despite progress, attacks against civilians remained “alarming and widespread” through early 2016. It was not until late Spring of 2016 when the pinnacle of violence finally passed.

The ultimate success of the CPS in changing the trajectory of the CAR is likely to be determined by specific organizational factors of the court which have yet to be legislated, and future unpredictable events in the country. The CPS is, however, a hybrid justice mechanism like none other before, and is the country’s best chance to end the vicious cycle of impunity for mass atrocities which has plagued it since independence. While President Touadera seeks only brighter days ahead, he also recognizes that despite progress “the situation is a fragile one” and that the CAR “absolutely needs the support of its bilateral and regional partners.” If recent violence in Kaga Bandoro is an indication of, or may become a catalyst for, renewed violence elsewhere in the country there is a risk that it could derail progress towards national reconciliation. MINUSCA is now reinforcing positions in and around Kaga Bandoro and  stepping up patrols to protect civilians, and will continue its mandate in the CAR in order to prevent further violence.

Jeremy S Goldstein is a 4L J.D. Candidate at the University of Denver Sturm College of Law in Denver, Colorado USA; Senior Managing Editor of the Denver Journal of International Law and Policy.

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70 Years of Justice

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

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

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

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

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

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

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

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

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The Protestant Ethic and the Spirit of Slavery

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

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

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

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

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

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

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

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

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

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Grading the United Nations at 70 years old

(Denver Post) By Ved Nanda

The euphoria that accompanied the creation of the United Nations in 1945 has long since

The UN Security Council meets on the current situation in Syriaon September 16, 2015 at the UN in New York.    AFP PHOTO / HANDOUT UNITED NATIONS DEVRA BEROWITZ              == RESTRICTED TO EDITORIAL USE / MANDATORY CREDIT: "AFP PHOTO / HANDOUT / UNITED NATIONS / LOEY FELIPE"/ NO MARKETING / NO ADVERTISING CAMPAIGNS / DISTRIBUTED AS A SERVICE TO CLIENTS ==Loey Felipe/AFP/Getty Images

The UN Security Council meets on the current situation in Syriaon September 16, 2015 at the UN in New York. AFP PHOTO / HANDOUT UNITED NATIONS DEVRA BEROWITZ == RESTRICTED TO EDITORIAL USE / MANDATORY CREDIT: “AFP PHOTO / HANDOUT / UNITED NATIONS / LOEY FELIPE”/ NO MARKETING / NO ADVERTISING CAMPAIGNS / DISTRIBUTED AS A SERVICE TO CLIENTS ==Loey Felipe/AFP/Getty Images

given way to frustration and disappointment. Established in the aftermath of the death and destruction of World War II to “save succeeding generations from the scourge of war,” it has succeeded in preventing another global war, but peace still remains illusory.

Armed conflicts in Syria, Iraq, Afghanistan, Libya, the Congo, Yemen, and other places attest to this grim reality. And the killing fields of Cambodia, the genocide in Rwanda, and the tragedy of Srebrenica show the international community’s failure to make good on its promise.

Benefiting from the experience of the failed League of Nations, the U.N. founders proclaimed in its charter the main purposes: to maintain international peace and security, to promote and protect human rights, and to effectively address pressing international economic and social issues such as development through international cooperation.

For a fair assessment of the U.N. on its 70th anniversary this fall, we need to look at its record in achieving these goals.

Under the U.N. framework, the Security Council, in which the veto power is wielded by five permanent members — China, France, Russia, the United Kingdom and the United States — is primarily responsible for peace and security. The founders envisioned that these five members would provide an umbrella of collective security for the world. That is why these became the only countries exclusively authorized to possess nuclear weapons.

But the Cold War quickly intervened. The U.S. and the Soviet Union — then the two superpowers — were embroiled in a prolonged ideological struggle, which led to an era of client states and proxy wars. The outcome was a paralyzed Security Council and stillbirth of the collective security system. This period lasted until the collapse of the Soviet Union.

At that time, there was renewed promise that the five permanent members (P-5) would work together to fulfill the expectations of the Security Council’s role on peace and security, and the first Gulf War showed a glimpse of that possibility. But the window again closed with Russia and the West at loggerheads on several geopolitical issues.

This tussle notwithstanding, the P-5 have found their interests aligned on countering terrorism, piracy, nuclear nonproliferation, on imposing collective sanctions on Iran, and now the Iran nuclear deal. They have also given their blessings to peacekeeping operations, and President Obama is to host a peacekeeping summit in New York in September. But more often, they disagree, such as on Syria.

Because the collective security apparatus did not work, the U.N. instituted peacekeeping as a band-age for trouble spots. From the early days of U.N. peacekeeping between India and Pakistan, these operations have expanded considerably, now in 16 countries with an enhanced mandate to protect civilians.

More than 100,000 personnel from more than 100 countries are engaged. The operation is costly — $8 billion-plus — and there are tremendous challenges. Critics often point to inefficiencies and abuses in the system, which badly needs clearly defined mandates, selection of peacekeepers based on experience and training, an effective oversight process, and well-defined exit strategies. The value of these operations, however, cannot be overstated.

The geopolitical circumstances have shifted the landscape. The 50 original charter signatories have grown to 193. No longer are peace and security issues confined to conflicts between and among states, as non-state actors such as the Islamic State, terrorists, and criminal elements challenge the traditional structure. And mass migration, climate change, environmental degradation, food insecurity, and violent extremism, among other forces, are major global security problems.

More than 50 million people are forcibly displaced today, and given the tragic incidents of hundreds of asylum-seekers drowning in the Mediterranean Sea and thousands on the move in Europe, the international community is undoubtedly failing them. Will the U.N. system, which is already showing its age, be able to deliver on these challenges?

On human rights, the U.N. indeed has undertaken impressive initiatives. Given the vivid demonstration of the Nazi Germany’s atrocities at home and aggression abroad, the founders realized that peace and security and human rights are inextricably intertwined. Accordingly, human rights found a place of honor on the U.N. agenda. The Universal Declaration of Human Rights, adopted in 1948, followed by binding international treaties on civil and political rights and economic, social, and cultural rights, culminated in an “international bill of rights.”

Since then, a number of international agreements have set universal standards for the promotion and protection of the rights of women, children, indigenous peoples, and disabled persons, for example. International agreements on the prohibition of atrocity crimes — genocide and torture, ethnic cleansing, and war crimes — and the creation of an International Criminal Court to hold egregious violators accountable are attempts to end all impunity. And credit for the independence of dozens of former colonial states goes to the U.N.’s decolonization process.

The U.N. World Conferences on Women — especially the 1995 Beijing Conference — set the goals of gender equality, active participation of women in decision-making, reproductive rights, and voluntary family planning. U.N. Women, a U.N. entity, now has a universal mandate to promote the women’s rights agenda.

Impressive international agreements are now in place on a wide range of other issues of human interaction, including the environment, the Earth’s ozone layer, the oceans, trade, outer space, terrorism, disarmament, aviation and shipping. The U.N. specialized agencies are addressing these issues. For example, the World Health Organization leads the global response to pandemics by creating awareness and mobilizing member states’ quick action on these threats.

The U.N. is attempting to shape a livable future on earth through a “sustainable development agenda,” which envisions linkage between economic viability, social development, and environmental aspects. It is an effort to bridge the initial North-South divide under which the developed states focused primarily on environmental protection, and developing countries on development needs. In 2005, the U.N. adopted the Millennium Development Goals, which focused on reducing poverty, hunger and child mortality, ensuring women’s empowerment, and providing clean water. Many of these goals, set to expire at the end of this year, have been largely met, and in September the U.N. will launch the Sustainable Development Goals, to last until 2030. These goals aim at ending poverty and hunger in all their forms everywhere, achieving gender equality, and ensuring access to clean water, sanitation, and affordable, reliable, and modern energy for all.

Indeed, the U.N. has had spectacular successes and monumental failures. It provides this interdependent world a platform where nations can enter into dialogue and negotiate to resolve their conflicts and address pressing challenges. Undoubtedly the organization suffers from a large bureaucracy, mismanagement, and inefficiency. Its governance structure has pointedly come under harsh criticism, a valid concern, indeed.

Currently the expansion of the Security Council is a contentious issue. Among the P-5 there is no representation from Africa or Latin America. The Asia-Pacific region, which comprises 55 percent of the world’s population and 44 percent of its annual income, has just one representative: China. This calls the Security Council’s legitimacy into question, and on Sept. 14 the General Assembly renewed the efforts for reform.

The veto power, which is responsible for the impasse and hence inaction at the Security Council to solve crises such as Syria, should be altered. But the P-5 defend it, and none would be willing to relinquish it. To illustrate, the Russian ambassador to the UK recently called the permanent members’ right to veto, a guarantee of checks and balances. And any alteration of the U.N. governance structure would require two-thirds of the membership of the General Assembly, 129 votes, not an easy task.

Secretary-General Ban Ki-moon’s term expires at the end of 2016. Jockeying for the job is in full swing. While East Europeans feel that it is their turn and the former president of Slovenia is a strong contender, there is powerful sentiment that the time is ripe for the first woman to take the helm.

There is truth in the cliché that if we did not have a United Nations we would have to invent one. However, while it is accurate that the U.N. can do only what its members will let it do, it must have the capacity to adapt to the changed geopolitical setting and a new economic and social landscape. Crucial questions are how to end red tape and bureaucracy; how to ensure effective monitoring and accountability mechanisms; and how to bring the governance structure in tune with modern-day realities.

Unless they are answered, the U.N.’s capability to effectively address the challenges and crises of the present and future is in question. The United States, which acknowledges the benefits of U.N. membership, must give its full support.

Ved Nanda (vnanda@law.du.edu) is Thompson G. Marsh Professor of Law and director of the Nanda Center for International and Comparative Law at the University of Denver Sturm College of Law.

 

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Intervention: Altruistic Benevolence or International Tyranny?

John Donne famously declared, “[n]o man is an island.” Similarly, “no state is an island,” as states are inevitably impacted by the actions of others. But does this mean that any connection, however attenuated, justifies one state’s interference with another? Is this kind of interference ever justified? Is there ever an obligation on states to commit just this sort of interference?

Intervention
(courtesy of K-State IMI data)

Historically, the line that divided benevolent intervention from tyrannous interference was the consideration of whether such interference was necessary to protect a state’s “vital interests.” While the standard of “vital interests” is itself an amorphous concept, the greater concern is whether it is an appropriate standard in the first place. Might not atrocity permit, and perhaps even require, those states with the ability to interfere to do so?

As early as 1933, the Montevideo Convention on the Rights and Duties of States illustrated the efforts of the international community to establish limits on the extent to which countries could interfere with one another. Article XI explicitly provides that “[t]he territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.” Similarly, Article II of the United Nations Charter, passed in 1945, states that “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of [a] state.” The general trend at this time appeared to favor non-interference, considering the sovereignty of a state to be absolute.

The Universal Declaration of Human Rights (UDHR), adopted in 1948, suggests a divergence from this mode of thinking. In its prohibition of genocide and war crimes, the UDHR proclaims that it is the responsibility of nations to ensure the “universal and effective recognition and observance” of human rights. However, the implications of this agreement remain abstruse. Is it the responsibility of each state to guarantee these rights only within their own borders, or is it incumbent upon each state to ensure that all other states also adhere to the UDHR? By what guiding principle is a state to adjudicate this dilemma born out of ambiguity and vacillating standards?

The difficulty lies in the collision of sovereignty with the prevention of atrocity. Interference constitutes a breach of sovereignty and it seems that any subsequent agreement made due to such interference would fail to be legitimate. An additional concern therefore is that it would be no mark against the state which violates an agreement made under such duress. But perhaps such a violation of sovereignty is required in the face of large-scale violence. In this context, the question of how many lives a state’s sovereignty is worth remains a haunting question.

While the United States has established that amongst their citizens there is no legal duty to rescue, perhaps a different standard is called for in the international arena. Current international law appears to leave both options open: vigorously protect human rights within one’s own borders only, or unequivocally engage atrocities both foreign and domestic. The burden of this decision rests with the various states as they determine their own statuses in a multifarious world, as there does not appear to be a clear legal answer.

As states struggle to determine precisely what influence they wish to exert, perhaps a guiding principle can be discerned from the Declaration of Independence signed at the birth of the United States: “when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government.” If the United States, or any other state, truly believes all people possess a duty to oppose a certain kind of cruelty, it would seem that the answer is clear: violations of human rights are intolerable. Yet the burden remains with each state individually to determine when and how to intervene, as the legal question of whether interference constitutes benevolence or tyranny remains an open one.

Cameron Hunter is a 3L law student and second year master’s student at the University of Denver and is the Survey Editor of the Denver Journal of International Law and Policy.

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Gender-Based Asylum Claims: Why the United States Approves So few

somali_woman2

Somali woman and child

Under current asylum law, gender is not a protected ground for asylum. The United States, as well as many other countries around the world, first committed to the international community to protect the rights of refugees when it signed the Refugee Convention in 1951, the controlling international convention in refugee law.  A refugee, according to the Refugee Convention Article 1(A)(2) is an individual “who is outside his or her country of nationality or habitual residence and is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.”

Any individual bringing a claim for gender-based asylum must do so under “membership in a particular social group.”  However, merely stating that the individual’s “gender” constitutes as a social group is not enough. The social group cannot be based on the persecution the individual faced, and has to be specific, immutable, and socially visible. There is a fear that if an immigration judge allows a social group that is too broad, it will set precedent for a flood of women to come and claim asylum in the United States.  Women, therefore, have had to describe their social group in convoluted and intricate ways, in order to be as specific as possible to be acceptable to immigration judge.  As one scholar notes, “applicants often define groups in ‘overly complicated and unnecessarily detailed’ ways, including characteristics such as marital status, age, education level, the absence of male protection, opposition to abuse, transgression of social/cultural norms, and past experiences of harm.” These social group formulations are very narrow, sometimes illogical, and almost comical in length.

Claims are especially difficult to bring when the persecution occurs within the private sphere—this means, the government of the country did not conduct the persecution, but instead, the members of the government refused to protect the individual from the violence.  When the persecution occurs within the private sphere, the persecution must be on account of that social group; the persecutor either has or will inflict harm or suffering “in order to punish him [or her] for possessing a belief or characteristic [the] persecutor[seeks] to overcome.”  The asylum seeker must show that the persecutor wanted to persecute her on account of her social group by providing evidence that the persecution occurred, which is often difficult within the private sphere, because there is often no witnesses or evidence.  Women around the world suffer violence, such as female genital mutilation, honor killings,  or domestic violence,  at the hands of their fellow community members because it is “culturally acceptable;” however, when they flee to the United States to avoid this violence, they face many obstacles in getting their asylum applications approved.

Kitty Robinson is a 3L 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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University of Denver Sturm College of Law

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