Tag Archive | "United States"

How a Mosquito Bite Differs By Two Weeks

Photo Credit: Andre Penner, AP

Photo Credit: Andre Penner, AP

Now that the Zika virus has been confirmed in mosquitoes of Miami Beach, concern about the spread of the disease in the United States has taken on new urgency.  Zika is a virus that is transferable by mosquito bite or sexual intercourse.  Generally, in adults, the virus is harmless—causing common cold symptoms in an infected person for about a week.[1]  But, the risks escalate exponentially if a pregnant woman is infected.  When diagnosed with the Zika virus, the unborn fetus carries up to a 13% chance of developing microcephaly—a permanent, incurable condition where a child is born with an undeveloped brain, leading to seizures, developmental delay of basic motor functions and speech, intellectual disabilities, decreased ability to learn and function; movement difficulties, inability to consume nutrition, hearing deficits, and inhibited vision. An otherwise normal fetus carries a .02 to 12% chance of developing the disease.

It is difficult to discuss the legal and medical treatment of Zika without broaching the subject of abortion. A woman infected with Zika obviously has two choices: (1) continue her pregnancy, carry the fetus to term, and give the child the best life possible, no matter the circumstances upon birth, or (2) abort the pregnancy to spare both her and her child the hardships—financial, emotional, psychological, medical, and physical—posed by microcephaly.  But, how much of a choice do women experiencing Zika complications really have?

Under the current federal abortion framework in the United States, the right to choose to have an abortion is fundamental before the point of fetal viability so long as the woman and physician conform  to valid state-imposed restrictions.[2] Post-viability, however, abortions are not permitted unless the procedure serves to protect the mother’s health or life. Moreover, many States ban all or most abortions later in pregnancy, regardless of current constitutional guidelines on the subject: banning the termination of pregnancy at twenty weeks, at viability, or in the third trimester or allowing a later-term abortion only to save a woman’s life.[3]

To understand the practical implications of the emergence of the Zika virus in the context of the abortion debate, we turn to Brazil’s response to the growing crisis. Because of a rich history of religious influence on its electoral systems and political composition, Brazilian policies mirror religious prohibition against abortion. In nearly all circumstances, abortion is a crime in Brazil, punishable by a sentence of three years’ imprisonment. A developing nation with one of the most restrictive abortion laws, Brazil’s government has been forced to adopt failing strategies to combat Zika. Before the threat of Zika, Brazil’s Ministry of Health concluded that illegal and botched abortions in Brazil outpaced legal and medically-necessary procedures by 100:1. Women faced the risk of infection, serious injury, or death as the result of a botched procedure. Since Zika arrived in Brazil in mid-2015, the scope of danger posed by an abortion has changed: the government has recorded 3,600 infected, pregnant women, all of whom are legally required to carry their fetuses to full term unless the fetus is confirmed to be missing a significant portion of its skull.  As the infection rate increases, the rate of illegal, unhealthy abortions—included but not limited to jumping off roofs and using unsanitary facilities—will only continue to increase. Without a Zika exception to abortion regulations, danger to pregnant women will only rise.

Brazil, compared to the United States, indicates that developing and developed countries alike are facing the same challenges with the rise of the Zika virus, posing both technological and legal challenges. If a woman is told on day one of her pregnancy that she is infected with the Zika virus, she has, at most, a 13% chance of her fetus being born with microcephaly. Doctors, however, (in Brazil and the United States alike) currently cannot detect microcephaly until late in the pregnancy via ultrasound. Hence, most of the time, a woman cannot be sure if her fetus will be born with microcephaly until too much time has lapsed for her to obtain a legal abortion, forcing women to bet on a 13% chance in the early stages of pregnancy.

Zika is but one example of how genetic disorders complicate abortion jurisprudence and the deeply personal choice inherent in the discussion.  Reacting to this moral conundrum in the political sphere, state legislators around the country are proposing legislation to ban abortion based on fetal abnormality. Texas, for example, is addressing an abortion ban at the 20-week mark; moreover, with a more conclusive microcephaly diagnosis at week 28, parents lose the choice to abort their fetus. We propose that Zika and the resulting microcephaly presents a heightened concern that justifies a further look into how abortion laws may need to be adjusted.  Some genetic disorders, such as Down Syndrome, may be discovered as early as 15 weeks of gestation, which is much earlier than the confirmation point for microcephaly. Further, the onset of microcephaly as a result of Zika is completely unexpected and difficult to predict; whereas, testing for other genetic disorders, like Down Syndrome, is routine and earlier in the pregnancy.  A woman may be infected with Zika and face the risk of her fetus having microcephaly in the first two weeks of pregnancy or in the last two months of pregnancy; it is completely random. Also, the conditions onset by microcephaly are much more debilitating and extreme than those of other genetic disorders like Down Syndrome, accounting for an almost complete loss of quality of life.

Here is the narrow issue in the Zika context:  What happens if a woman is infected with Zika post-viability, or is forced to make a decision about her pregnancy based on a 13% chance of a debilitating condition?  Zika is not necessarily a risk to the woman’s health but, rather, is a risk to the health of the fetus.  Such fetal risk is not necessarily in the abortion framework’s exception to the ban on post-viability abortions.  Again, an instance where law and medicine collide in this debate; thus, we would suggest that Zika is a phenomenon that the United States must confront and, in doing so, should consider carving out an exception to the legal ban on post-viability abortions to protect the fetus when the mother decides that it is the best decision to abort the pregnancy.

Max Solomon is a 3L at the Florida State University College of Law. Before law school, he received a BA in History and International Affairs and an MS in Political Science from the Florida State University. His legal and research interests include public international law, employment, and election law. Outside of law school, he sits on the ABA Committee for Constitutional Affairs and Social Justice, researching legal and public policy issues related to election law, voting rights, and legislative term limits. He hopes to find a career that combines his interests in international affairs and helping the disadvantaged navigate the legal field.  He currently works at an elder law firm in Tallahassee, Florida.

Melanie Kalmanson graduated Magna Cum Laude from the Florida State University Law Review in May 2016. In law school, she served as an Executive Editor on the Florida State University Law Review and a Governor on the Florida Bar Young Lawyers Division Law Student Division and has several pieces published focusing on constitutional law, specifically individual rights, and family law, specifically child custody and domestic violence. Her long-term career goals include becoming a law professor.

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[1]  Though recent research suggests that there may be more serious, long-term effects from Zika that become gradually apparent.

[2] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973).

[3] For detailed information on individual state legislation on abortion, see https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions.

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President Obama to Veto 9/11 Tort Legislation to Protect Sovereign Immunity

Photo Credit: National Park Service

Photo Credit: National Park Service

On Monday, September 12, 2016, White House press secretary Josh Earnest said that despite bipartisan support, President Obama is likely to veto legislation approved by Congress, which would allow the families and victims of the September 11, 2011 attacks to sue the government of Saudi Arabia for any role it might have had in the attacks. The name of this bill is the Justice Against Sponsors of Terrorism Act (JASTA).

While the highly emotional motivation behind this piece of legislation is completely understandable: Protecting the United States and the concept of sovereign immunity, which protects U.S. diplomats, U.S. service members and U.S. companies from the possibility of being hailed into courts around the world.

In a rare showing of bipartisanship, Congress has placed President Obama in a perilous position. By passing this legislation, many initial observers view President Obama’s veto as preventing families and victims of the 9/11 attacks from seeking justice. However, the eyes of patrons championing this view are clouded by emotion and the atrocity of the 9/11 attacks. President Obama correctly understands that there are ways for families and victims of the 9/11 attacks to seek justice without alienating a long-time ally in Saudi Arabia, and without leaving United States citizens and entities vulnerable to legal action brought by foreign nations. Furthermore, the purpose of JASTA was all-but eviscerated by the subtle changes the Senate made to the bill just before passing it. The net effect of these changes make it all-but impossible for the 9/11 victims and their families to actually recover damages, even if they can prove Saudi Arabia’s involvement.

In a world already stretched thin from numerous international conflicts, the international legal implications of a world without sovereign immunity, as we know it, are unfathomable. Additionally, if JASTA were to pass, it would likely provoke Saudi Arabia, and potentially other countries, to remove billions of dollars of assets from U.S. soil. From a purely strategic point of view, at a time when the United States is tightly locked in a proxy war in Syria and Iraq against ISIS, this is simply not the time to lose any friends in the Middle East.

Even if President Obama does veto this piece of legislation, it’s possible Congress might have enough votes to override his veto. If this were to occur, it would be first veto-override of President Obama’s presidency.

Joseph Apisdorf is currently a second-year law student at University of Denver Sturm College of Law and managing editor of the Denver Journal of International Law and Policy.

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Where do Clinton and Trump stand on U.S. intervention?

Republican Presidential Candidate Donald J. Trump speaks during the final day of the Republican National Convention in Cleveland, Thursday, July 21, 2016. (AP Photo/J. Scott Applewhite)

Republican Presidential Candidate Donald J. Trump speaks during the final day of the Republican National Convention in Cleveland, Thursday, July 21, 2016. (AP Photo/J. Scott Applewhite)

What should be the U.S. role in the world?

In the current election cycle, the debate on this vital question is especially focused on America’s military interventions — interventions in Afghanistan, Iraq, Libya, Yemen, Somalia, and hesitation in Syria — which provide some indicators for reflection. As both presidential candidates have spoken on the topic, it is essential to review their positions.

Donald Trump is usually described as a champion of non-intervention and Hillary Clinton the opposite. The New York Times’ Maureen Dowd described the candidates as “Donald the Dove, Hillary the Hawk.”

As a broad generalization, this is perceived as an accurate portrait, but the record is not so clear, especially in Trump’s case. In his March interview with The Washington Post’s editorial board, Trump questioned the need for the North Atlantic Treaty Organization (NATO) and the United States’ continued involvement in it. This he has reiterated on several occasions.

Trump suggested to The New York Times that he might withhold military assistance to defend the Baltic countries — Estonia, Latvia and Lithuania — from invasion by Russia, unless the countries under attack have fulfilled their pledge to spend at least 2 percent of their GDP on defense. This despite the unqualified assurance in the NATO treaty that an attack on one NATO member is an attack on all, and all members will come to the aid of one under attack. Just as Trump has questioned the U.S. commitment to NATO, he has also wondered about the benefits from our involvement in Asia.

Trump fervently opposes nation-building and regime change, and considers all U.S. military alliances as burdens. His prior statements show that he has supported many foreign policy decisions he now lambastes. To illustrate, in the past, he has favored intervention in Syria to create safe zones. He endorsed the ouster of Saddam Hussein and he never opposed the Iraq war until after it had begun. In 2007 and 2008, he often spoke favorably about the U.S. withdrawal from Iraq, which he now calls a mistake; the same applies to Afghanistan. He also called Egyptian President Hosni Mubarak’s removal “a good thing.” Similarly in Libya he supported the overthrow of Moammar Khadafy.

John Noonan, an adviser to Jeb Bush on national security, and dozens of Republican foreign policy experts signed onto a letter describing Trump’s policies “wildly inconsistent and unmoored.”

As to Clinton, Mark Landler wrote in The New York Times Magazine about Clinton’s “appetite for military engagement abroad,” based upon her “foreign policy instincts … grounded in cold realism about human nature.”

She is perceived as a person who believes in displays of force. Her firm support for the intervention in Libya and persistent, albeit unsuccessful, efforts within the Obama administration to provide meaningful support to the rebels in Syria at the outset of the civil war, are well known. She, too, favors safe zones there. Even after the tragic events in Benghazi, Libya, on Sept. 11, 2012, in which Ambassador J. Christopher Stevens lost his life, she stoutly defends the Libyan intervention as justified. Now that the U.S. is using airstrikes in support of the U.N.-backed central unity government in Libya, she endorses this action, as well.

No matter who is the next president, the U.S. cannot disengage from the world. Granted, there are limits to U.S. power to spread

Republican Presidential Candidate Donald J. Trump speaks during the final day of the Republican National Convention in Cleveland, Thursday, July 21, 2016. (AP Photo/J. Scott Applewhite)

Republican Presidential Candidate Donald J. Trump speaks during the final day of the Republican National Convention in Cleveland, Thursday, July 21, 2016. (AP Photo/J. Scott Applewhite)

and freedom — and it is widely acknowledged that America is already spread too thin to be effective in many places. But there is no denying the fact that America must play an important role in the world and it is critical that it use military power not only in the defense of national interests, but also in concert with others when atrocity crimes — such as genocide, war crimes, crimes against humanity and ethnic cleansing — occur.

America must firmly support the evolving international law doctrine of every state’s responsibility to protect human lives from these crimes, no matter where they are committed.

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

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This article was originally posted by Ved Nanda as a Denver Post OpEd which can be found here.

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The Trans-Pacific Partnership: Where Do You Stand?

Photo Credit: Saigoneer

On February 4, 2016, the Trans-Pacific Partnership, or “TPP”, was signed by the United States and eleven other countries as one of the most ambitious international trade deals in world history. Through its seven years of grueling negotiations, the criticism of this deal has been, for the lack of a better term, loud.  The TPP is a gargantuan, multi-national trade agreement with a lot of complicated international trade jargon; and as such, there have been a lot of choice words tossed around relating to it, not all of which is credible. Thus, what I am going to try to do is break down the pros and cons of the agreement:

 

Pro:

It will create jobs in the United States and improve the economy.

Economists forecast that the TPP will increase exports by 5 billion dollars, money that will be used to both create business, jobs, and wealth in the United States. It will accomplish this by removing roughly 18,000 tariffs in the Pacific, reducing costs and allowing American businesses to generate higher returns on their sales. While this may seem like a benefit we cannot afford, consider the fact that roughly 80% of tariffs with these 12 countries have been withdrawn prior to the implementation of the TPP. This will prove fairer to American business and make it easier for them to compete. US workers are expected to see a raise in income of about 77 billion dollars.It will help the American automotive industry by reducing the protective tariffs on automobiles in countries like Japan, making it easier to sell American cars to them and further aiding the American automobile industry.

It has strategic value against China.

If you haven’t notice, China is the elephant in the room of this deal. More specifically, they are the elephant outside of the room, as they were purposefully left out of the deal. This economic push has been a part of the Obama administration’s pivot to the Pacific, finding that China’s leverage over the United States has been increasing every day. This deal forms a unified front to compete against China economically in the region, led by the United States. It will create allies, and it will isolate China, preventing them from throwing their weight around during negotiations, and making it more likely that they will be careful not to rock any boats in the foreseeable future. China’s strength comes from its economic girth, and the threat of replacing the Chinese market with others will force it to negotiate from a weaker position in the international arena. These benefits are almost unknown, but it is agreed that it will mostly be positive for the United States.

It helps poor people in poor countries.

State-owned enterprises must comply with trade standards that mandate protecting their workers. Effectively, many countries that did not observe or allow unions to form before, must allow unionization now in order to comply with the TPP. Furthermore, most of these countries will observe benefits to poorest people, allowing them to find suitable, better paying jobs than before the TPP’s implementation. While NAFTA did hurt a considerable amount of people in Mexico, it paled in comparison to the kind of employment requirements the TPP will mandate of its parties. The truth is, measuring NAFTA’s effects on Mexico as an example of what the TPP will do won’t do the ambitious agreement justice. This is truly a whole other animal. For more information on human rights under the TPP, click here for another article written by one of our staffers, Jeremy Goldstein.

It is environmentally friendly.

All countries have agreed to cut down on wildlife trafficking, both marine and on land. It prevents environmental abuses. If a country does not comply with its duties under the TPP, they will be subject to “trade retaliation”, which is fancy word for voiding the parties’ trade responsibilities to the injuring country until they comply with the TPP. So effectively, countries that aren’t doing their fair share to save the Earth among the TPP will be subject to losing their privileges under the agreement. While it might be hard to imagine countries bring claims against others for these environmental violations, it would allow the party to implement trade barriers against the violating country, scoring points with local interest groups. There are reasons to do it, and rest assured it will happen. The frequency is the only real question on everybody’s minds, let alone how often violations will even occur.

Con:

It will kill jobs in the United States, and most of the benefits will be felt by the richest.

While there will be gains for workers across the board in the United States, most of that gain will go to workers making more than 88,000 dollars a year. This is partly because of the stronger international protections being offered to intangible property rights, making it even easier for the owners of that property to reap larger gains. Moreover, just like with NAFTA, there will be US jobs that will ship overseas, it is a major sacrifice of any trade deal. Particularly, manufacturing and textiles will feel the brunt of the move, but no industry will be free either. Even the service industry will send some jobs overseas. Overall, trickle-down economics is the major argument in favor of the TPP, but its application in reality has been brought to question by major economists including Robert Reich and Jeffery Sachs.

Foreign businesses will be able to sue the United States outside American courts.

It might surprise many to learn that this particular provision was implemented by American companies specifically. The primary reason behind investor-state arbitration provisions in trade agreements is to circumvent corruption. Corrupt governments make lawsuits practically impossible to sustain, forcing foreign companies trying to enter those markets to incur immeasurable costs. These provisions allow businesses to circumvent corrupt government practices and try laws under fairer arbitration tribunals. The arbitration award is granted to the business if the country was found to be in violation of the TPP, and the award is enforced by allowing all signatories of the treaty to implement trade restrictions as “trade retaliation” for not paying damages, along with measures under the New York Convention. This may seem like a huge win for big business, but it makes it easier for smaller businesses to enter foreign markets as well by reducing the costs of potential litigation in a corrupt country. While the United States will be suable by foreign businesses, it is worth noting that under NAFTA, the United States has never lost an investor-arbitration claimIf anything, the bigger potential for abuse will be against foreign governments who attempt to implement good policy in the name of public welfare, but they get attacked because of the heightened costs to foreign businesses. While that abuse remains, exceptions to investor-state arbitration were put into the TPP, such as in the tobacco industry. Foreign businesses will be allowed to use investor-state arbitration to challenge American laws that have damaged their businesses.

With that said, the only way to implement such a provision is to accept the standard ourselves. While the United States will be suable by foreign businesses, it is worth noting that under NAFTA, the United States has never lost an investor-arbitration claim. If anything, the bigger potential for abuse will be against foreign governments who attempt to implement good policy in the name of public welfare, but they get attacked because of the heightened costs to foreign businesses.

Intellectual property enforcement will prevent the poorer countries in the TPP from getting the drugs they need.

It should be noted however that this was a major obstacle that the US had to overcome with some of the poorer countries in the TPP. In order to surmount it, the US had to agree to shorter patent protection time periods, reducing the typically 12 year period to five to seven, depending on the patent. But that period could still prove to be too long, and many foreign governments simply cannot afford to pay for the exorbitant prices of some of these pharmaceutical drugs, even at discounted rates. While businesses under the TPP have agreed to continue to allow some creation or marketing of generic medicines using their patents, the intellectual property section of the TPP is one of the heftiest chapters and it remains to be seen how the interactions between all of these intellectual property rules will play out.

The deal will not protect the environment in practice.

Perhaps the most significant drawback to the TPP will be the environmental effects in practice. While each and every country will be required to comply with the environmental provisions of Chapter 20, the countries themselves will have to bring violations of the TPP’s provisions to a dispute resolution body. In fear of retaliatory or cross-claims, countries may be hesitant to actually bring violations of some of the provisions if the cost of adjudicating is simply too high in the short-run relative to the long-term damaging effects of environmental pollution. Essentially, this will also mean that businesses will find more pressure to compete internationally, forcing them to lower their costs. Environmental regulation can be costly to comply with, and many businesses will likely try to skirt around the rules as much as possible to lower costs.

To read the entire text of the TPP in full, click here. For a summary of each chapter, click here. Now that you have all the information, decide which side of the debate you stand on and feel free to comment below.

 

 

 

James Harmoush is a 2L at the Sturm College of Law and the Online Managing Editor of the Denver Journal for International Law and Policy.

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The Non-Profit Age: Altruistic Values in America

Credit: Forbes

Photo Credit: Forbes

The American nonprofit sector has grown at an exceptional rate and continues to grow each year.  In the 10 years from 2001 to 2011, the number of nonprofits in the United States grew by 25%.  And the sector continues to grow.  In 2010, the U.S. nonprofit sector employed approximately 10% of the country’s workforce and accounted for 9.2% of wages and salaries paid in the U.S.  In 2012, that number had increased to approximately 10.3%, with nonprofits providing 11.4 million jobs to the U.S. workforce.  With as much as the sector has grown in the last 15 years, it’s no surprise that charitable giving has also continued to increase.  In 2014, charitable contributions reached an estimated $358.38 billion.  What’s more, beginning in 2010 there has been an increase in charitable giving for the last five consecutive years (the Urban Institute’s Nonprofit Sector in Brief 2015 compiles and analyzes data through year-end 2014).  In fact, the institute found that private giving has increased 18.2% since 2009.  So, how does the American non-profit sector measure up with the rest of the world? The answer is a lot more convoluted than you’d expect.

Based on giving as a share of GDP, the U.S. comes in first at 1.85% of GDP, followed by Israel (1.34%) and Canada (1.17%).  When you look at volunteerism as a share of GDP, the Netherlands ranks first, followed by Sweden, Tanzania, and Norway.  However, when looking at just the percentage of the adult population participating in volunteerism, Norway comes in first with 52% participation, followed by the United Kingdom with 30% and Sweden at 28%.  The logical question when reviewing this data then becomes, which form is the best?  Are Americans the most charitable because we give the highest percentage of money to charity? Or is Norway truly the more charitable country because more than half of its population participates in volunteerism (compared to just 22% in the U.S.)?  Perhaps, the question is not who gives the highest amount of GDP or who volunteers the most hours per year, but rather, what factors motivate us to give (regardless of form), and how are these motivations shaped by our own unique social circumstances?

In her article “Who Gives the Most,” Elisabeth Eaves suggests that perhaps our charitable activities are a direct response to our culture and political beliefs.  This sentiment also seems to be echoed in Arthur Brooks’ book, Who Really Cares (albeit Brooks’ analysis centers on a national, as opposed to international, perspective).  And in fact, when looking at the philanthropic sector on an international scale, one common theme among developed nations is that those with higher taxes and “bigger social safety nets” tend to have lower rates of giving.  Thus, it’s hypothesized that nations with lower taxes and less extensive social welfare programs tend to feel a sense of duty to step-up where their government lacks, and to privately fund initiatives to fill the needs they see around them.

Information collected through the Comparative Nonprofit Sector Project found that nations with extensive welfare systems put in place by the government were far less likely to engage in charitable giving.  Accordingly, its been argued that lower taxes, and in turn, more disposable income actually encourages greater generosity because people see needs around them and feel that it is their responsibility to do good deeds.  Whereas countries with higher rates of mandatory redistribution, such as France, see less need around them, pay higher taxes, and believe it is the government’s responsibility to appropriately allocate resources and take care of all of the citizens in the community. This in turn allows them to shift the burden from their own shoulders and place it on the government in exchange for paying higher taxes.  Again, this seems to be the case from both a national and international perspective.

Although Americans give the highest percent of GDP to charity each year, this fact alone doesn’t necessarily make the U.S. the most charitable nation. Rather, a more appropriate conclusion might be that Americans see a need in the U.S. that must be filled, and find the best way to fill that need through monetary giving; whereas countries like Norway and the U.K. might see a similar need, but feel that the most appropriate way to effectively fill the need is through volunteering time as opposed to money.  Is one approach better than the other?  It seems that we all feel the same intrinsic impulse to fill the needs we see around us, thus, to draw a distinction between volunteering money, time, or delegating such responsibility to the government is neither necessary nor beneficial, because in the end, charity is charity; regardless of its form.

Demi Arenas is a 3L and Staff Editor on the Denver Journal of International Law and Policy.

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Does Iran’s Ballistic Missile Test Detonate the Nuclear Deal?

On October 10 Iran successfully test launched a new precision-guided ballistic missile. On Wednesday, Britain, France, the United States, and Germany addressed a letter to the United Nations Security Council’s Iran Sanctions Committee claiming that the test violated a Security Council resolution prohibiting Iran from nuclear capable missile testing. In the wake of this allegation, and the recent adoption of the nuclear deal forged between Iran and world powers, there is confusion as to what impact an affirmation of the allegation may have on the deal, and why Iran may have chosen to test now, at such a sensitive time.

The Facts

1028340053
October 10th launch of Iran’s Emad IRBM. Courtesy of IRINN news in Iran.

On July 14 Iran and world powers signed a ground-breaking deal to limit the ‘breakout time’ for Iran to develop a nuclear weapon, in exchange for a reduction and eventual repeal of sanctions levied against the Islamic Republic. For decades, the UN Security Council has held strong to a policy of sanctioning Iran for actions it takes with respect to its nuclear program, a program which Iran has consistently claimed is intended only for peaceful purposes. This deal signals a strong shift by the UN, United States, and world powers in their approach to dealing with Iran, prioritizing direct negotiation and an incentives-based approach over sanctions. The world powers who signed the agreement with Iran include; The United States, France, Germany, China, Russia, and the United Kingdom.

Specific details on the October launch are sparse, but we do know that the missile, named the Emad (Pillar), is a surface-to-surface intermediate-range ballistic missile (IRBM). The missile, precision-guided until it reaches the target, greatly enhances Iran’s medium-range precision strike capabilities because, as reported by Iran’s national news organization, the Emad is “capable of scrutinizing the targets and destroying them completely.” It has been reported that the missile is capable of complete accuracy within a 1,700km range, can carry a 750kg payload, and would be deployed in 2016. The State of Israel, which the leadership of Iran has vowed, but never attempted, to destroy, is within 1,700km range of Iranian territory. Israel and The United States are long-time allies. The tested missile was not loaded with a nuclear weapon, but a ballistic missile is the preferred delivery system for a nuclear warhead.

The letter addressed to the UN stated that the missile was “inherently capable of delivering a nuclear weapon”, and that they hope the information will be used to “examine and take appropriate action in response to violations.”

The Laws

United Nations Security Council Resolution 1929 adopted in June 2010 prohibits Iran from “undertake[ing] any activity related to ballistic missiles capable of delivering nuclear weapons[,]” but the leadership in Iran has consistently, and successfully, rejected the enforceability of UN resolutions targeting its domestic activity.

UN Sec Council

Members of the Security Council vote at United Nations headquarters, Monday, July 20, 2015. The U.N. Security Council unanimously endorsed the landmark nuclear deal between Iran and six world powers and adopted a series of measures leading to the end of U.N. sanctions that have hurt the Iranian economy. (AP Photo/Seth Wenig)

 

 

Under the new deal, titled the Joint Comprehensive Plan of Action (JCPOA), world powers have agreed to lift sanctions which were implemented under Resolution 1929, and other resolutions, in exchange for Iran stepping themselves back from developing warhead capability. As a part of the JCPOA a timeline of stages has been set, the first, which began this week, includes a reduction of some sanctions and the beginning of monitoring by the International Atomic Energy Agency (IAEA). UN Security Council Resolution 2231, the implementing document for the JCPOA in the United Nations, mandates that the next stage will begin on the ‘Transition Day’, eight years from Sunday. Annex V, Schedule D para. 19 conditions repeal of sanctions relating to the the international transfer of ballistic weapons to Iran on the completion of IAEA testing and the first phase of the agreement, or on the Transition Day, whichever comes first.

Additionally, while obfuscated by confounding language, the document does lay out a requirement similar to the language in Resolution 1929 prohibiting the development of nuclear ballistic missiles. Paragraph 3 of Annex B states that until the Transition Day, “Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons.” The scope of Annex B of Resolution 2231, titled “Statements”, is comprised of additional provisions set forth by each of the signatory world powers which must be met to in order to facilitate complete “implementation of the JCPOA.” Paragraph 3 does allow for an earlier reduction in ballistic weapon sanctions, contingent on an IAEA report that suggests Iran has fully complied with the nuclear capability reduction requirements of the JCPOA prior to the deadline, but the United States has a veto on any proposed early repeal. It should be noted that nothing in the JCPOA or Resolution 2231 explicitly dictates what actions taken by Iran prior to the date of Adoption would violate the agreement, or what force a new violation of Resolution 1929 would have on the implementation of the JCPOA during the 90 days between execution and Adoption.

Analysis

First, referenced above, the launch occurred on October 10, after the execution of the JCPOA but prior to the Adoption Day of Resolution 2231 in the UN. Therefore, it may be argued that the JCPOA and 2231 do not apply. This leads to an interesting analysis, because the penalty for violation of a provision in Resolution 1929 would be economic sanctions, which Iran has consistently ignored and which 2231 is designed to reduce in exchange for cooperation from Iran regarding all facets of their nuclear agreement, which includes nuclear ballistic missile development. It seems, from this perspective, that Iran may have been attempting to get in “one last shot” before the JCPOA is implemented. It had no direct incentive not to do so and knew that the international community would have little recourse in the way of remedy or penalty.

On the other hand, when Iran launched they were fully aware of the imminence of the adoption of the agreement they had signed, and therefore their actions may also be judged by whether they comply with the JCPOA. The preamble to the JCPOA states that the parties to the agreement “commit to implement this JCPOA in good faith and in a constructive atmosphere, based on mutual respect, and to refrain from any action inconsistent with the letter, spirit and intent of this JCPOA that would undermine its successful implementation.” It does not seem that a test launch weeks before Adoption would be in the ‘letter, spirit and intent’ of the deal. The launch did, however, occur just days before Ayatolla Khomeini’s official acceptance on the part of the Islamic Republic, possibly timed as to preempt any consequence under the JCPOA.

Second, there is an important difference in the language of the two resolutions prohibiting Iran from developing nuclear capable ballistic missiles. Resolution 1929 requires that Iran refrain from any activity related to ballistic missiles “capable of delivering [nukes]”, while 2231 prohibits any activity related to ballistic missiles “designed to be capable of delivering [nukes.]” Interestingly enough, when asked to comment, Iranian Foreign Minister Mohammad Javad Zarif said that “none of [Iran’s] missiles has been designed for a nuclear capability”, echoing the less restrictive language of 2231. The argument purported by the US and EU powers in the letter to the Iran Committee said that the missile was “inherently capable” of delivering nukes, focusing on the language of 1929.

Therefore, it seems that the United States claims that all ballistic missiles, whether ‘designed’ for nuclear capability or not, are “capable” of carrying a nuclear weapon, and therefore must fall under the provision as stated in 1929. Does this mean that the US claims that because the launch occurred prior to the Adoption Day of the JCPOA, Resolution 1929, which does not require ‘direction’ and therefore has a lower burden of proof, should be the controlling law? It is unclear whether the administration noticed the difference in the language when adopting their statement, or whether it thought the public would notice. Even if 1929 is the controlling law, the enforcement mechanisms in 1929 were not only ineffective when they were drafted, but are especially ineffective now, since they are in the process of being removed as a part of the JCPOA.

The Iranians, on the other hand, argue that they never conducted activity on missiles ‘designed’ to be nuclear capable, and therefore are not in violation of the provision, even though the test occurred prior to the Adoption Day. The official Iranian statement on the launch echoes the language in the JCPOA, and not that of 1929. The Iranian government has made no comment on whether, since they prefer to define the terms of their actions based on the JCPOA, they consider the launch to be within the ‘letter, spirit and intent’ of deal, as required by the preamble of the agreement. To sum it up, the US prefers the language of the old Security Council resolution, which is more inclusive but has no enforceability, whereas the Iranians defend their actions using the language of the JCPOA, which should be found not to include tests like the one on Oct 10, but if it was, would truly destroy the progress made to reach this deal.

Why Now?

Khomeni
Supreme Leader, Ayatollah Ali Khamenei 2015.

Based on the above analysis, it seems that neither the United States nor the Iranians want this launch, or any subsequent investigation, to detonate the landmark deal. Even so, neither is backing down. White House spokesperson Josh Earnest stated that while the administration was investigating the launch, that the test was “separate from the JCPOA” and did not violate the agreement. While no credible analysts believe that Iran’s ballistic missile program is for peaceful means, non-nuclear capable missile development is not prohibited by the JCPOA. So whether this missile is found to be nuclear capable or not, it has the potential to destabilize, but not detonate, the nascent trust between Iran and world powers. It is a wonder why, then, when the Ayatollah has come out in support of the deal, would he make such a bold, instigating, and seemingly benefit-less choice to launch?

In his effortless brilliance, Thomas Friedman, economist and columnist for the New York Times, may have inadvertently provided the answer almost a month before the launch. In his NY Times column dated September 16, ‘Iran Deal Players’ Report Cards’, Friedman grades all of the actors in the deal and gives the Ayatollah an “A”.  He explains that throughout the process, the Supreme Leader had been clever, acting to make himself domestically popular by “cheating” Iran’s way out of the “crippling sanctions, which his people want,” while all the while “giving his hard-line base the feeling that he’s still actually against this deal and his negotiators the feeling that he’s for it.”

While Friedman does end with a humorous reference to lessons the Ayatollah will learn in relation to the imminent domestic democratic transition in Iran, a-la Mikhail Gorbachev, he does also make a poignant parallel to the launch. He reminds us that just a week before the September 17 deadline for the US Senate to block American acceptance of the resolution, the Ayatollah made an ill-timed public statement predicting that Israel “won’t be around in 25 years[.]” This statement was clearly referencing a period of time within which Iran could successfully overcome the effects of the international sanctions and restrictions on its nuclear program by the JCPOA, and develop an actionable nuclear weapon. The statement eruditely left Iran’s direct participation in the destruction of the State of Israel to inference, but was timed specifically to instigate the right-wing in the US Senate and the Israeli government. A simple analogy is made from the statement to the launch of the missile, timed just a week before the Adoption of the JCPOA.

In the end, it is clear that none of the European powers, the US, UN, or Iran want to allow this launch, even if found to be of a missile ‘designed to be nuclear capable’, to destroy the hard-fought nuclear deal. Was the Ayatollah intentionally attempting to derail the agreement? Could he have just been catering to his conservative base by showing that any concessions he makes to support the deal will be in protest? Did he launch to send a little reminder to Israel before allowing his nuclear program to lay dormant?

Clearly, the future of peace and security in the region is too important to risk over a single missile launch. Only time will tell if any lasting effect will result from launch. It is unlikely that any action will be taken by the Security Council to reprimand Iran for launching, because this could cause a rift in the already tenuous partnership. As to the Ayatollah’s intentions? This author hopes that the launch was mere Putin-esq political puffery, destined to be relegated to the history books as the defining record of the most deadly weapon that Iran ever developed, never to be exceeded.

Jeremy S Goldstein is a 3L at the University of Denver – Sturm College of Law and the Online Editor-in-Chief of the Denver Journal of International Law and Policy.

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A comparison of maternity rights across the world

On October 6, 2015, Washington D.C. councilmembers introduced the Universal Paid Leave Act of 2015, which guarantees 16-week of paid family leave for any employed D.C resident.  The legislative process could take months, but if passed, the law would allow both full-time and part-time D.C. employees to take time off to tend to a newborn, care for a sick relative or recover from serious illness. The standard that would be set by the nation’s capital is truly revolutionary compared to the existing laws and policies across the country. Currently, California, New Jersey and Rhode Island, Massachusetts  are the only states that offer taxpayer-funded medical and family leave allowing eligible employees to take up to six weeks of partially paid time-off.

In fact, the United States is the only industrialized country that does not have any federally mandated paid leave for its citizens. It is also one of four countries, along with Liberia, Sierra Leone, and Papua New Guinea, with no paid maternity leave laws. Maternity leave policy in the United States is directed by the Family and Medical Leave Act (FMLA), which was issued in 1993. The Act offers up to 12 weeks of unpaid leave during a calendar year to care for a newborn, adopted child, sick relative, or recover from serious health condition. But even the entitlement to a 12 weeks’ time off is subject to a host of restrictions and qualifying conditions: the provisions apply only if the person works for an employer with 50 or more full-time employees, have worked for the employer for at least 12 months, and have worked at least 1,250 hours in the past year. Because taking unpaid time off can be financially burdensome, in many households, especially in low-income families, mothers often have to make a painful decision to stay at work or take much shorter leave after a birth of a child.

Maternity policies may vary around the world but they all (except for the United States andPapua New Guinea) recognize many benefits of offering paid parental leave and provide minimum level of support to new mothers. According to International Labor Organization, maternity leave policies in the vast majority of countries guarantee at least 14 weeks of time off at a “rate of at least two-thirds of previous earnings, paid by social insurance or public funds

For instance, in Demark, the government adopted the Maternity Leave Act that guarantees parents a total of 52 weeks of paid leave including pregnancy leave for up to four weeks off before the child arrives. Sweden went a step further: parents in this country are entitled to 15 months of paid leave that can be shared between mothers and fathers; parents also receive 80 percent of their regular wages and are allowed to work only six hours per day until their child turns eight. Under German law, both mothers and fathers are well protected from loss of employment until their child turns three. Besides, a mother can take 14 weeks off for maternity leave at 100 percent pay.

Mothers in Italy are offered 5 months of leave paid at 80 percent of salary. Women employees also have a flexibility to divide their time off by taking one month off before birth and four months after the birth of a child.

Under Canada Labor Code female employees can take between 17 (if they worked for a company for at least six months) and 52 consecutive weeks of paid leave. Maternity leave in Russia and many other CIS (Commonwealth of Independent States) member countries consists of 70 calendar days prior to a birth and 70 days thereafter; it is paid at the rate of 100 percent of the average monthly salary. In Iran new mothers are entitled to 90 days of maternity leave and receive two-thirds of their regular wages.

All these countries have long recognized the need to provide a support for working families in the form of paid leave. Parental leave benefits the families, businesses, government and society in general. It gives parents opportunity to establish a strong bond with an infant during the first months of life, and allow a healthy childhood development.  Paid leave also strengthen employee loyalty and increases the likelihood that employees will return to their employers after having children, and continue advancement in their career. As a result, companies that offer paid parental leave would be able to save money on turnover costs and retain talented employees.fnwodbcowebecowieh

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The Trans-Pacific Partnership: Exploring concerns over an Investor-State Dispute Settlement mechanism

transpacificpartnership
find more at https://curiousmatic.com/trans-pacific-partnership

After years of negotiations, this week saw the conclusion of the Trans-Pacific Partnership agreement (“TPP”). The TPP unites eleven pacific-rim nations and the United States–a collection of 40% of global gross domestic product and one-third of world trade–making it the largest regional trade agreement in history.

Although the terms of the agreement have not been released yet, it has been a divisive topic throughout negotiations. The Obama administration and TPP’s proponents point toward the elimination of more than 18,000 tariffs in place on American exports by the other participating countries as one of the key benefits of the deal. One of the sticking points for opponents to the deal is the inclusion of an investor-state dispute settlement (ISDS) mechanism. Critics of this ISDS provision claim it undermines state sovereignty by creating a supra-national tribunal where global corporation’s may sue member-states and receive taxpayer compensation.  On the surface, the critics concern is a real one–state sovereignty will be undermined–but states cede sovereignty each time they enter into an international agreement. The real issue at play is whether the obligations the TPP allows global corporations to enforce against the United States are so egregious as to make the cession of the United State’s sovereignty unacceptable.

An accurate answer to this issue cannot be had until the final terms to the TPP are released to the public. Although WikiLeaks published an alleged text of the Investment Chapter of the TPP in March of this year, which is said to create the ISDS. This post will wait to evaluate the obligations of the TPP until it is released. However, two of the rumored grounds for suit, “expected future profits” and indirect expropriation, are provisions found in many of the 3,000-plus trade agreements in place around the world. A look at corporations’ use of these provisions in other trade agreements provides positive arguments for both sides of the TPP ISDS debate.

Under NAFTA, Methanex, a Canadian corporation sued California for loss of $970 million in expected future profits after California banned the chemical MTBE from gasoline sold in the state. The NAFTA ISDS tribunal dismissed the claims against California. TPP supporters say the ruling prove that domestic regulations for the public good will win out under any ISDS regime. Opponents, on the other hand say that those companies from larger countries that are set to gain access to similar rights against the United States will not lose such cases. The ongoing dispute between the United States tobacco company Phillip Morris and Australia for mandating plain packaging of tobacco products on public health grounds is cited as an example of a suit TPP will allow against the United States to the potential detriment of taxpayers.

Opponents also fear “indirect expropriation” will be interpreted broadly by a TPP ISDS tribunal to oppose regulations that may diminish a foreign corporation’s investment expectations in the United States. An example of a corporation successfully suing a state for indirect expropriation is the 2012 Occidental Petroleum’s award of $2.3 billion from Ecuador for its expropriation of oil drilling. The Office of the United States Trade Representative has dedicated an entire website to dispelling critic concerns over a TPP ISDS tribunal issuing similar judgments against the United States. It cites investor burden of proof and a state’s ability to seek expedited review of frivolous claims brought against it as key mitigating factors.

TPP-protest-train-and-big-banner-1024x576

TPP protests

In the near future the final terms of the TPP will be released to the public. The agreement has the potential to change the United States’ strategic position in Asia and increase its exports in certain struggling industries. It also has the potential of opening the vault to the United States’ taxpayer money. I believe that in order for the TPP to pass congressional approval, ISDS provision must contain the mitigation mechanisms necessary to prevent foreign corporations from impeding the United State’s sovereign right to regulate trade within its borders. Whatever the outcome, the TPP ISDS tribunal will likely influence a similar ISDS provision in the Transatlantic Trade and Investment Partnership currently being negotiated between the United States and the European Union.

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Exit Through the Bathroom: An Ineffective War on Drugs

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A Mexican soldier destroying opium poppies in Navalato, Sinaloa State. The New York Times. Fernando Brito.

On July 16, 2015, Joaquin “El Chapo” Guzman, Mexican drug kingpin and leader of the Sinaloa cartel, escaped from federal prison in Mexico. He did so via a one-mile tunnel from beneath his private shower at the prison. The tunnel was equipped with a modified motorcycle that led to a half-built house overlooking both the prison and the nearby military base. Besides concerns about the effectiveness of one of Mexico’s most secure prisons, it leads me to wonder whether his capture in the first place was just an exercise in futility.

Guzman’s penchant for tunnels extends past his daring prison escape. For decades, Sinaloa has been using tunnels to move drugs, people, money, and guns into the United States from Mexico. In Chicago, for example, roughly 80% of the drugs come from the Sinaloa cartel and Guzman’s capture did not shut off that tap. Art Bilek, a former Chicago detective with six decades on the job, states it well: “At this point [drug trafficking is] so well-established, it’s part of the culture.” This is a problem.

Our current tactics are clearly not working. The war on drugs needs to be updated. The war is so outdated, that at a recent International Law and Drug Policy Reform session in Washington, D.C., the current drug conventions were called “Jurassic” in nature compared to other international treaty regimes. This framework will hopefully be handled and updated next year at a United Nations General Assembly Special Session on drugs.

In the United States there has been some move towards drug reform as marijuana is the talk of the town. Still listed by the Drug Enforcement Agency as a Schedule I narcotic under the Controlled Substances Act, marijuana is prohibited under federal law. Other members of the Schedule I family include heroin, lysergic acid diethylamide (LSD), and methylenedioxymethamphetamine (ecstasy). However, 23 states have legalized marijuana in a medical form and four of those have legalized it for recreational use. Why would any state condone the use by its citizens of a member of that dangerous Schedule I grouping? That leads us back to the severely outdated drug laws that the US and many other countries still have in use.

Steps are being taken on the federal level to resolve these outdated laws. For the most part, the Department of Justice looks the other way for patients in those 23 states who use medical marijuana. However, if U.S. Senators Rand Paul, Kirsten Gillibrand, and Cory Booker have their way, state medical marijuana programs would be legalized under federal law under the recently proposed “Compassionate Access, Research Expansion and Respect States Act”. Additionally, under the Act, marijuana would be reclassified as a Schedule II drug, grouping it with regulated drugs such as Vicodin, OxyContin, and Adderall. While this will not eliminate people like Guzman and the Sinaloa cartel, it may be a small step towards accomplishing the goals that the long ago proponents of the “War on Drugs” had in mind.

 

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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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