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The Harvard College Law Review aims to create a legal and civil rights discourse on our campus and the greater Boston area. We rejoice in bringing together an eclectic team that is interested in pursuing the law in future practice and through academia, but most importantly; the HCLR is here to engage our community in rigorous and unrelenting debate. In these pages you will find a wide array of articles and viewpoints, from research articles on various international humanitarian crises to the state of free speech, constitutional interpretation and privacy in the United States. This semester has welcomed a talented new class of writers, and its pages and our organization as a whole are far richer for their words. We give huge thanks to the 2017 executive board, staff writers, and comp class, whose articles fill these pages and whose leadership across design and fundraising have been crucial to producing this Fall edition and revitalizing the organization. Through the Law Review and the Law Society, we will continue to work to build a greater and wide-ranging, lawinterested community at Harvard College. We are excited to grow this 2018 and are modernizing the Review through its new website and online presence. We are particularly driven by the huge potential of the Review to carve out a space for the law at the undergraduate level. Significant research efforts out in the field and in academic writing are made each semester across myriad fields of law by Harvard College students. This passion for the law requires an empowered outlet to carry real impact, and we hope to continue to work to provide the right environment to foster a community that builds students into change-makers and leaders. Ultimately, we recognize the real power of the pen through journalistic and academic writing. We hope that these pages will continue to be filled with articles that push boundaries, expand legal concepts and make a tangible impact on our global community. It is with great pleasure that we introduce to you this edition of the Harvard College Law Review. We hope that its writing will serve as both an inspiration and a challenge. Kieren Kresevic Salazar Managing Editor

Cade Palmer Editor-in-Chief


HARVARD COLLEGE LAW REVIEW

FALL 2017 EXECUTIVE STAFF Editor-in-Chief Cade Palmer Domestic Chairs Tom Marshall Edwin Leech

Managing Editor Kieren Kresevic Salazar

International Chairs Nick Danby Derek Lee

Website Manager Lucas Ward

Interview Chairs Katherine Hung Meg Leatherwood

Design Chair Anna Zhou

Business Managers Richard Dunn Edgar Carrero Publicity Chair Nataliya Palinchak The Harvard College Law Review is an undergraduate studentrun law review at Harvard College. The organization is dedicated to providing students an outlet through which they may pursue their interests in the world of law. Ultimately, the review seeks to provide a forum through which students may investigate and debate legal initiatives in a substantive and researched manner. The views and opinions expressed in this publication do not necessarily reflect those of the entire staff, the editors, or the college but are the sole perspectives of the individual writers.


TABLE OF CONTENTS DOMESTIC SECTION IN SCALIA WE TRUST: ORIGINALISM THROUGH THE PRISM OF THE ESTABLISHMENT CLAUSE

Patrick Cespedes

1

THE HETEROGENEITY OF JURIES ACROSS STATES

Hernan Cepeda

12

JENNINGS V. RODRIGUEZ: AUTOMATIC BOND HEARINGS FOR LONG-TERM IMMIGRATION DETAINEES

Chico Payne

17

NOT ABOVE THE LAW: FRAUDULENT PRACTICES BY TIMESHARE COMPANIES

Tanna Wise

25

MATAL V. TAM: THE TRIUMPH OF FREE SPEECH

Sapna Rampersaud

40

RIGHT TO BE FORGOTTEN

Seokmin Oh

46

TAMING THE DIGITAL BEAST: HOW DO WE CONTROL ARTIFICIAL INTELLIGENCE?

Patrick Cespedes

50

HOW ENVIRONMENTAL POLICY HAS FAILED TO SAVE THE NORTH ATLANTIC RIGHT WHALE

Sabrina Devereaux

55

AUSTRALIA: IMPLACABLE DEFENDER OF THE TORTURE OF REFUGEE CHILDREN IN THE REPUBLIC OF NAURU

Kieren Kresevic Salazar

77

PRIVACY AND DEMOCRACY

Thomas Elliott

93

MILITARIZATION IS NO ANSWER TO THE FAILURES OF THE DRUG WAR IN LATIN AMERICA

Edgar Carrero

104

ARTICLE 93: HUMAN RIGHTS AND CONTEMPORARY US-EGYPT RELATIONS

Adam Mohsen-Breen

124

LAWS PROMOTING INJUSTICE: HOW THE LEGAL DEFINITION OF “CITIZEN” ENABLES MYANMAR’S ROHINGYA CRISIS

Sofia Ivanka Ochoa

138

MADURO’S CONSTITUENT ASSEMBLY: ILLEGALITY AND INTERNATIONAL RESPONSE

Jeannie Regidor

146

THE ROLE OF LAW IN ENVIRONMENTAL POLITICS

Allison Rabe

156

THE LOOPHOLE LAW: A FADING WESTERN PHENOMENON

Jad Maayah

165

INTERNATIONAL SECTION


GENOCIDE IN MYANMAR: A LEGAL QUESTION OF INTERVENTION

Elizabeth Manero

170

LAW WITHOUT GAPS: RATIONAL JUSTICE IN SETTLER-COLONIAL NORMS

Julian Rauter

180

THE LIMITS OF LEGITIMATION: THE CONSTRAINED NATURE OF COURTS IN LINE WITH THE MAJORITY

Nick Stauffer-Mason

190

KATE GERMOND

Sophia Vargas

213

MARK STRAND

Margaret Leatherwood

221

INTERVIEWS SECTION


DOMESTIC SECTION


In Scalia We Trust

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IN SCALIA WE TRUST: ORIGINALISM THROUGH THE PRISM OF THE ESTABLISHMENT CLAUSE PATRICK CESPEDES STAFF WRITER

This essay suggests that through originalism the Supreme Court can be more impartial, consistent in its rulings and retain its strength, reliability, and authority—particularly when compared to a loose constructionist interpretation. For one, originalism prevents justices from ruling in accordance with their respective normative judgements. The argument of living constitutionalists that the Founding Fathers kept the Constitution ambiguous on purpose to allow wide interpretation misinterprets the manner in which the Founding Fathers wished the Constitution to evolve over time. The essay focuses on the Establishment Clause, which serves as a case study for the practical reasons for using an originalist approach in interpreting the Constitution.

Before passing away, the late Supreme Court Justice Antonin Scalia once suggested that he would share his grave with the ashes of originalism. One of the few remaining legal titans who endorsed a reading of the Constitution consistent with its original meaning as understood by the Founding Fathers, Scalia was quite open about the imminent demise of his preferred exegetical style; for most of America, it was about damn time.1 Judicial interpretation has been a matter of perennial debate, but one which has become increasingly one-sided in recent decades.

Originalism is sometimes defined as a reading of the Constitution consistent with the original intent of the Founding Fathers; however, given that the theory of original intent has historically been less popular among originalists as a school of thought, this article adopts the definition of originalism that conforms to the theory of original meaning; nonetheless, this ambiguity is offered as a potential shortcoming of originalism later on. 1


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Though relatively new in terms of legal philosophy, living constitutionalism, which calls for a flexible, responsive, dynamic document expounded “with one eye toward our nation’s history and the other fixed on its democratic aspirations,” continues to grow in popularity at an alarming rate.2 Dangerously seductive, it permits and even encourages justices to insert their own ideas and beliefs into provisions, a recipe for unchecked judicial activism. Originalism, on the other hand, struggles to remain viable in the throes of an untimely decline, the victim of a long and torturous smear campaign perpetrated by opponents to spread misinformation and misunderstanding.3 My goal here is not to assert the supremacy of one method over the other, but rather reinvigorate the debate over constitutional interpretation, thereby preventing a passive acceptance of the status quo. Moreover, this is not just an abstract exercise in intellectualism: in 2018, the Supreme Court will likely hear cases relating to gerrymandering, religious freedom, voter registration, public unions, and cellphone privacy, issues that have real implications for everyday American citizens.4 Hence, those who interpret the law of our land, governing us and setting precedent for our posterity, cannot afford to be complacent. The structure of my argument is as follows: I reintroduce and further elaborate on some of the arguments for originalism that have gone by the wayside, and, in so doing, posit the idea that originalism can help the Supreme Court to (1) be impartial and consistent in its rulings, and (2) retain its strength, reliability, and authority in the eyes of the American people in ways that living constitutionalism simply cannot. I then narrow my focus to a specific constitutional provision, specifically using the Establishment Clause, which cryptically states that “Congress shall make no law respecting an establishment of religion,” as a McCreary County v. ACLU of Kentucky (2005), 554; Gillman, Howard. "The Collapse of Constitutional Originalism and the Rise of the Notion of the “Living Constitution” in the Course of American State-Building." Studies in American Political Development 11, no. 2 (1997): 191-247. Note that originalism and living constitutionalism are not the only ways to interpret the Constitution; however, given their popularity among current and former Supreme Court justices, they are the most pertinent to the focus of this article. 3 Something I hope to remedy—or at least begin to remedy—here. 4 Bomboy, Scott. "Five cases headline the Supreme Court's next term." National Constitution Center. September 29, 2017. 2


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case study to hone in on more practical reasons for taking an originalist approach to the Constitution, which are appealing to even those who do not accept the preeminence of originalism as an interpretative philosophy. Finally, sticking with the Establishment Clause, I show what an originalist approach would look like in practice. One merit of originalism is that it prevents justices from ruling according to normative judgements or other ulterior motives. Drawing the meaning of provisions from “evolving standards of decency” or “democratic aspirations,” as suggested by some living constitutionalists, makes for constitutional interpretation that is subjective, haphazard, and capricious.5 Clauses become minced and mangled as presiding justices manipulate the text to achieve whatever ends they desire. This inconsistency not only corrodes the value of precedent, which depends on the sanctity of prior rulings, but also calls into question the reliability and trustworthiness of the Supreme Court as an impartial arbiter of legal conflict. Conversely, the original meaning of the Constitution as was understood by the Founding Fathers never wavers, forever grounded in history and tradition, holding justices to an objective criterion of adjudication and removing much of the potential for human bias; it also serves as a check against the passions of the majority: original meaning endures as a beacon of stability in times of tumult, a fixed measure of procedural justice, preventing the Court from being swept out to sea by tides of popular sentiment. Though some decisions may be unpopular, there is at least a standard—and one with precedent, at that—to which the Court conforms. Under living constitutionalism, the Constitution becomes a mirror that reflects personal (or partisan) agendas and beliefs whenever they choose to present themselves. Hence, originalism prevails for the impartiality and consistency it confers on the process of judicial review. One challenge frequently raised by living constitutionalists is that the Founding Fathers intended the Constitution to evolve over time and adapt to circumstances which could not have been foreseen centuries in advance. Originalists would not disagree; 5

Trop v. Dulles (1958); McCreary County v. ACLU of Kentucky (2005), 554.


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however, living constitutionalism has the wrong conception as to how the Founding Fathers intended the Constitution to meet the various needs of subsequent generations. There is an amendment process outlined by the Constitution so that the document may be formally altered. If the general population feels like the Constitution lacks a certain provision or requires revision, individuals can petition their local representatives in the House to propose an amendment, which will then be voted on and, pending majority approval, inserted into the Constitution. Where current Constitutional provisions are concerned, we must adhere to their original meaning as understood by the Founding Fathers until amended otherwise. This is how the Constitution evolves over time–not on the whims of nine Supreme Court justices. Here we encounter another inherent problem with living constitutionalism: it displays demonstrably undemocratic tendencies. Too much power is given to Supreme Court justices in determining our national values and morality, creating a “dictatorship of a shifting Supreme Court majority.”6 Admittedly, the United States today is remarkably more diverse and technologically advanced than at the time of the Constitutional Convention. Nonetheless, there persists a sacrosanct principle of popular sovereignty when it comes to the government, whereby supreme authority rests with the people and their representatives. In this sense, originalism, which favors the amendment process via elected officials to individualistic interpretation, triumphs over living constitutionalism in preventing “judges from ruling now this way, now that–thumbs up or thumbs down–as their personal preferences dictate.”7 Yes, the amendment process is particularly strict, especially considering the divided political climate of the United States today; a proposal requires a two-thirds majority vote in both the House of Representatives and the Senate or a constitutional convention called for by two-thirds of State legislatures, and, once that happens, it must be ratified by three-fourths of the States. Scalia himself expressed some reservations about the stringent guidelines. But such is the nature of the enterprise of altering a

6 7

McCreary County v. ACLU of Kentucky (2005), 551. Ibid.


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document that has been a stable and enduring reminder of our democracy for hundreds of years. If it were easy to change, our nation would be resting on an amorphous blob rather than solid bedrock, left to deal with the confusion and lack of foundation that would result. As frustrating as the amendment process is to us today, we must recognize the strength and security it has provided in times of uncertainty and turmoil; originalism certainly does. Of course, originalism is far from perfect: trying to ascertain the original meaning of the Constitution as was understood by the Founding Fathers is an inexact science; it involves much speculation and research. Each of the signatories had their own ideas and aspirations for the document.8 Even the phrase “original meaning” is ambiguous: should we look at the intent of a given provision or the text itself to derive its meaning? And how are we to rule if the Founding Fathers themselves held conflicting points of view about the meaning of some clause? These are hotly contested questions in the domain of jurisprudence that may never receive satisfying answers. Still, originalism, with all its faults, nuances, and areas of disagreement, protects the American people from the impulses of a few Supreme Court justices, provides stability and consistency in the wake of turbulent times, and upholds the democratic ideals upon which this nation was founded. Since the landmark case of Everson v. Board of Education in 1947, the battle over interpretation of the First Amendment’s Establishment Clause has been a microcosm of the larger struggle between originalism and living constitutionalism. So, what does an originalist approach to the Establishment Clause look like? For this, I defer to Scalia, who contends that it only forbids the government from actively “proselytizing or advancing any one, or disparaging any other, faith or belief, or applying some level of coercion [to that end].”9 According to him, there is neither “mandate for government neutrality between religion and irreligion,” nor dilemma with “manifesting a purpose to favor adherence to religion generally.”10 This is corroborated by Ibid., 549. Ibid., 557. 10 Ibid., 551. 8 9


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countless official acts and official proclamations of the United States or of the component branches of government from the time of the Constitutional Convention, including “the First Congress’s beginning of the tradition of legislative prayer to God, its appointment of congressional chaplains, its legislative proposal of a Thanksgiving Proclamation, and its reenactment of the Northwest Territory Ordinance,” which upheld the importance of religion and morality, as well as “Washington’s prayer at the opening of his Presidency and his farewell address, President John Adams’ letter to the Massachusetts Militia, and Jefferson’s and Madison’s inaugural addresses.”11 Each example lends itself to a Scalia-esque reading of the Establishment Clause. However, former Supreme Court Justice David Souter presents a convincing counter to the idea that the Founders were unified in their opinions, specifically citing Thomas Jefferson’s refusal to issue Thanksgiving Proclamations because he believed that their explicit references to a divine being violated the Constitution, as well as James Madison’s criticism of Virginia’s general assessment tax, which required individuals to donate money to religion, because he considered it a signal of persecution.12 This would suggest a more contentious and convoluted original meaning than Scalia let on. However, Scalia rebukes Souter, noting that Souter limits his evidence to two of the Founding Fathers, and does not appeal to their “official or even quasi-official actions.”13 Madison’s “Memorial and Remonstrance against Religious Assessments,” wherein he criticizes Virginia’s general assessment tax, was written before the Constitution had even been proposed and is ultimately irrelevant here due to its ambiguity and subject matter (enforced contribution to religion, which is what Madison was attacking, would still be considered unconstitutional under the original meaning of the Establishment Clause as laid out by Scalia).14 Furthermore, Jefferson’s “quasi-official inaction” described by Souter is outweighed by his “authorship of the Virginia Statute for Religious Freedom, which begins ‘Whereas, Almighty God Ibid., 553. Ibid., 549. Ibid., 553. 14 Ibid., 554. 11 12 13


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hath created the mind free…” and better demonstrates his stance on the subject.15 Therefore, barring any yet undiscovered evidence that definitively proves otherwise, we can reasonably assume that Scalia’s interpretation is what the Founding Fathers understood the Establishment Clause to mean at the time of its inception. Perhaps you are not sold on the idea that originalism is the foremost legal philosophy when it comes to constitutional interpretation. I admit that there are plenty of considerations that I do not address in this article (e.g. a peer of mine recently argued that ends matter more than means, and if that entails sacrificing the stability that original meaning confers, so be it); for those who find themselves in such a position (or for those who would simply like further demonstration of the merits of originalism), I now evaluate Scalia’s interpretation of the Establishment Clause in relation to those of some of his most respected ideological opponents—namely, renowned legal philosopher Martha Nussbaum and Dean of the UC Berkeley School of Law Erwin Chemerinsky. In doing so, I hope to prove that an originalist approach is indeed sensible when it comes to this particular clause of the Constitution, regardless of your opinion on the greater debate between originalism and living constitutionalism.16 Nussbaum holds that “what is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion.”17 According to her, “the Establishment Clause has required fullblooded neutrality in matters of religion,” meaning that the government cannot “favor monotheism and disfavor polytheism,

Ibid. Again, the interpretations of the Establishment Clause featured here are by no means exhaustive; however, their general popularity and prominent status among Supreme Court justices and esteemed legal scholars make them relevant to the focus of this article. Moreover, whether either scholar would classify their respective interpretations as "living constitutionalist" is irrelevant. The purpose of this paragraph is to illustrate interpretations of the Establishment Clause that extrapolate beyond its original meaning as was understood by the Founding Fathers, and both interpretations presented here satisfy that end. This is not to say that the argument could not be made that their interpretations are, in fact, living constitutionalist in nature, just that such an argument will not be made here. 17 Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008), 267. 15 16


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nontheistic religion, and atheism” as suggested by Scalia.18 Her primary concern is “protecting the equality of all citizens,” and “creating a legal system that is not biased, that is fully and truly fair to all litigants, no matter what their religion.”19 There is some legal precedent to support her view: former Supreme Court Justice Sandra Day O’Connor champions a similar view in many past cases. However, her interpretation is vague and often unhelpful in decision-making because of its heavy reliance on context and the discretion of individual justices—what constitutes endorsement for one justice might not for another. Nussbaum herself admits that “one might agree with the framework while reaching a different concrete decision.”20 If we accept the endorsement test, the Supreme Court becomes a weather vane, ruling whichever way the winds (i.e. the personal preferences and beliefs of those on the Bench) happen to blow at any given time. Chemerinsky solves this problem by advocating for much more explicit, stringent guidelines, specifically a “wall separating church and state.”21 From a consistency standpoint, this interpretation has its benefits, providing a “sharp-edged rule” to be followed, which resolves the aforementioned consistency issue for legal precedent.22 Scalia himself concedes that the Supreme Court must remain consistent in its decisions if the American people are to continue to “accept its interpretation of the Constitution as definitive,” especially important given that the Judicial Branch of government lacks the power of the purse and sword.23 By this measure, Chemerinsky’s interpretation comes out on top. Additionally, Chemerinsky invokes the Establishment Clause as a form of protection for religion from government, referencing Roger William’s warning that “worldly corruptions might consume the churches if sturdy fences against the wilderness were not maintained.”24 This provides a unique— and quite powerful—perspective on the issue, recommending that Ibid., 262. Ibid., 258. 20 Ibid., 260. 21 McCreary County v. ACLU of Kentucky (2005), 557.; Erwin Chemerinsky, “Why Separate Church and State?” 85:2 Oregon Law Review (2006), 351. 22 Nussbaum, Liberty of Conscience, 254. 23 McCreary County v. ACLU of Kentucky (2005), 552. 24 Chemerinsky, “Why Separate Church and State?” 364. 18 19


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the profane steer clear of the heavenly for the sake of the latter. However, if the Supreme Court accepts a wall separating church and state, it risks losing its strength and authority in the eyes of the American people by ignoring both “historical fact” and “current practice.”25 As Nussbaum writes, the “tradition has never been one of ‘rigid, absolutist’ insistence on separation of church and state.”26 The reality is that “those who wrote the Constitution believed that morality was essential to the wellbeing of society and that encouragement of religion was the best way to foster morality” and that such a sentiment has never gone away.27 This, coupled with the statistic that 97.7% of all current religious affiliates in the United States are monotheistic, tells us that civil strife would surely follow an interpretation of the Establishment Clause so at odds with the bedrock of our nation. Beyond that, it is impractical and possibly infeasible to remove every trace of religion from government, since “no institution in American society can exist in total isolation from government.”28 Thus, Scalia’s interpretation of the Establishment Clause, though not perfect by any means, is more sensible from a purely pragmatic standpoint than some of the most heavily touted alternatives. Finally, this article will apply Scalia’s originalist interpretation of the Establishment Clause to governmentapproved religious displays. Consider the following: in 2012, the State of Oklahoma erected a six-foot-high granite monument of the Ten Commandments on the lawn of the state capitol building. The Oklahoma State Legislature authorized the monument on secular grounds, underscoring their “importance in the foundation of the laws and legal system of the United States and the State of Oklahoma” and emphasizing that “the State of Oklahoma does not favor any particular religion or denomination thereof over others.”29 Subsequently, in 2015, the Satanic Temple submitted a formal application to the State of Oklahoma, requesting permission to erect an eight-foot-high statue of

McCreary County v. ACLU of Kentucky (2005), 551. Nussbaum, Liberty of Conscience, 254. McCreary County v. ACLU of Kentucky (2005), 551. 28 Nussbaum, Liberty of Conscience, 254. 29 Jacob Betz, Unit 2: Religion & the Public Sphere, 1. 25 26 27


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Baphomet, a pagan idol, adducing its “secular purpose of promoting an understanding and appreciation of the history and evolution of law in the United States.”30 This article will now endeavor to rule on the constitutionality of each display in order to show what an originalist approach to a constitutional provision would look like in practice. Here, the Ten Commandments display can be described as “a tolerable acknowledgement of beliefs widely held among the people of this country” (including, but not limited to, Christians, Muslims, and Jews), which does not begin to “proselytize or advance any one, or disparage any other, faith or belief, or apply any level of coercion [to that end].”31 The government is in no way forbidden from “publicly honoring God” in the general sense, as it does here.32 Hence, I find that a display of the Ten Commandments on government property is, in fact, constitutional. Scalia would almost certainly concur with this decision, given that he upheld the constitutionality of a six-foot-high monument of the Ten Commandments on the grounds of the Texas state capitol building in Van Orden v. Perry.33 However, the statue of Baphomet is uniquely pagan, one of their many idols. Whereas the first display marks an acknowledgement of a single Creator—unequivocally tolerated by the Founding Fathers and “recognized across a broad and diverse range of the population” so that it cannot be attributed to any one religion in particular—the second display effectively advances paganism, since it publicly honors something unique to that religion and that religion alone, which constitutes a direct violation of the Establishment Clause according to an originalist interpretation.34 Therefore, I find that an eight-foot-high statue of Baphomet on government property is decidedly unconstitutional. Nussbaum would be expected to uphold the constitutionality of both displays for the sake of government neutrality, and Chemerinsky would likely declare them both unconstitutional given his inclination for complete separation of Ibid., 2 McCreary County v. ACLU of Kentucky (2005), 553. Ibid. 33 Van Orden v. Perry (2005). 34 McCreary County v. ACLU of Kentucky (2005), 553. 30 31 32


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church and state. With that said, the drawbacks of their interpretations indicate why originalism should be our interpretative theory of choice here. The preceding analysis has extoled the virtues of an originalist approach to constitutional interpretation, and shown how such an approach could be applied to provisions like the Establishment Clause. If we continue down the path of accepting the status quo as it stands and eschewing genuine debate, we run the risk of creating a Supreme-Court-majority dictatorship that rules thumbs-up, thumbs-down, according to its normative proclivities; a weather vane Supreme Court that lacks impartiality, consistency, and therefore credibility; or worse, a Supreme Court completely at odds with the American people, devoid of strength, reliability, and authority, a catalyst for civil strife.35 As Scalia used to say, the Constitution is not living, but dead: it’s time for the Supreme Court to quell this zombie-like apocalypse before it consumes all the brains our nation has left. Or, at the very least, talk about it.

Every risk comes with a certain amount of uncertainty. I am not asserting that any of these circumstances will necessarily obtain, but if we stop debating the issue and continue down the path of passively accepting living constitutionalism as the norm, there is greater chance of slipping into one of these doomsday scenarios without even putting up a fight. 35


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THE HETEROGENEITY OF JURIES ACROSS STATES HERNAN CEPEDA STAFF WRITER

Jury size and the jury-voting rule have both been the subject of scrutiny by many cases before the Supreme Court and beyond. As a result of several local cases, such as Ballew v. Georgia and Burch v. Louisiana, the heterogeneity of the jury sizes has increased—spurring a subsequent increase in the academic scholarship surrounding the topic. King and Nesbit found that the cost-minimizing number of jurors was nine. Luppi and Parisi suggest that smaller juries avoid the negative effects of the informational cascade bordering on the herd mentality. In an interview with this publication, Harvard professor Kenneth Felter supported a heterogeneity of jury size across the nation, citing efficiency concerns.

The jury trial is a cornerstone of the American legal system; it allows for disputes to be settled by the peers of both the plaintiff and the defendant. Two of the main facets of trial procedure—jury size and the jury-voting rule—are of particular interest among scholars, policymakers, and Supreme Court Justices. In Williams v. Florida (399 U.S. 78 [1970]), the Court overturned its decision in Thompson v. Utah (170 U.S. 343, 349 [1898]), which construed the Sixth Amendment to require that in all criminal cases “a jury [be] compromised of 12 persons, neither more nor less.” In Williams, the Court ruled that the constitutionality of a limit on jury-size rested on whether such a reduction would undermine the jury’s essential function of grounding the judicial process in the “common-sense judgment of the community” (Luppi & Parisi 401). Further, in Ballew v. Georgia (435 U.S. 223 [1978]), the Court set a lower limit on jury size, holding that a jury with less than


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six members would be unconstitutional because it would be too small to be representative of the relevant community” (Luppi & Parisi 401-02). In regards to the jury-voting rule, the Supreme Court, in Burch v. Louisiana (441 U.S. 130 [1979]), ruled that state courts are free to reduce the jury size or to modify the decision rule, but not both; thus, states cannot permit smaller juries to decide non-unanimously (Luppi & Parisi 416). As a result of these court decisions, heterogeneity of jury sizes across the United States has increased; this heterogeneity opens the door for courts to optimize their jury size. The flexibility arising from the Supreme Court’s rulings in 1970, 1978, and 1979 has been widely supported across the United States; by 2013, 40 states allowed smaller juries in at least some misdemeanor criminal trials (Luppi & Parisi 402). Through its rulings, the Supreme Court developed a jury trial system with the flexibility for the different courts across the United States to choose the jury size that suits them best, based on the citizens in their area. In the years following these decisions, research was conducted to study the effects of the variety of potential jury sizes brought by the Supreme Court decisions. One such study, conducted by Kerry King and Todd Nesbit, attempted to find the number of jurors and jury-voting rule that would minimize the costs of Type I errors, Type II errors, and juror’s time; they found that the costminimizing number of jurors was nine along with a jury-voting rule of unanimity (470). If a cost-minimizing number of jurors exists, then we would want that number uniform across different states, but King and Nesbit are unconvincing; their study is based on flawed assumptions and the jury size calculated is calculated for the “average” jury. Across the United States, there are a plethora of ethnicities, religions, races, socio-economic levels, and life experiences; although a jury of 9 is best on average, some areas in the United States are far different from the “average” and could potentially benefit from, say, a jury of 10 or 6. Barbara Luppi and Francesco Parisi find that, assuming judgments are expressed sequentially, jurors can “adjust their judgments in light of what others have expressed…. an increase in jury size increases the likelihood that by the time a dissenting juror is called to express her judgments, her voting preference will have changed in response to the judgments previously expressed


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by other jurors” (409). Further, they find that the larger the jury, the more heterogeneity’s effect on dissenting jurors can be diminished by informational cascades - where a person observes the actions of others and takes on the same decisions despite personal contradictions with their chosen action (414). Luppi and Parisi deduce that the informational cascade effect is weakened in smaller juries; informational cascades can have a negative effect on juries because after a certain point, no new information will be added to deliberations and jurors will tend towards herd mentality (415). Further, heightened levels of heterogeneity are more likely to produce deadlock and lower rates of correct unanimous verdicts (Luppi and Parisi 415). The flexibility of the Supreme Court’s decision allows for differently sized juries, and thus different areas of the country can benefit from a jury size that best fits. For example, all else being equal, an area with high religious, ethnic, or moral homogeneity, could benefit and cut costs from a 6-member jury because heterogeneity is not an issue. If a 6-member jury were to be highly heterogeneous, the informational cascade effect would be weak and the juror’s widely differing views would be more likely to lead to deadlock and lower rates of correct unanimous verdicts. Conversely, a highly heterogeneous area could benefit from a 12-member jury because the larger jury will mitigate heterogeneity’s effect on dissenting jurors through informational cascades. In order to further investigate the effects the different characteristics and demographics of juries, I interviewed Professor Kenneth Felter, a current Harvard professor and retired partner at Ropes & Gray LLP. In his time as a defense trial lawyer, Professor Felter practiced widely in trials across many states. He explained that a big influence in trials takes root in the characteristics of the community from which the jury is drawn, citing an example of an eastern district of Texas were there are many patent cases filed and in which juries have been historically pro-patentee and have given large awards for damages. His example further supports the idea that a uniform jury size rule is unlikely to be as efficient as having flexibility of jury size because different areas of the country have different characteristics and demographics, and may thus benefit from a different jury size than the “average” jury in the United States.


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Michelle Baddeley and Sophia Parkinson provide further proof of the benefit of a flexible jury size. In their study, they find that the strongest compromises between jurors were “in groups comprising of more strangers and acquaintances than friends” (566). This makes sense in terms of preserving relationships and avoiding future uncomfortableness among friends; a heated debate between friends is less likely to occur than unconditional agreement and herd-like behavior among friends. In a highly rural area with few residents, jurors are more likely to know each other, so a smaller jury—of, say, six—would reduce the probability of being in a jury with a friend, which would prove to be beneficial for the court. In Professor Felter’s general experience dealing with different jury sizes, the vast majority of the juries he has worked with have been 12. The few times he worked with a 6-person jury, while he was cognizant of the differing jury sizes, he generally did not prepare differently, with the exception of the preliminary jury-selection hearing, since he had to be aware of what may influence 6 people as opposed to 12. “The facts of the case,” he said, “are what matters in the end.” When asked if he prefers a smaller or larger jury, he explained that he would prefer a smaller jury if the plaintiff had a very convincing case and a larger jury for a more difficult case. His reasoning was that, with strong evidence, it would be simpler to explain and ultimately prove his case to a smaller number of people than a larger group of people. In entertaining the idea of the existence of a cost-minimizing uniform jury size, I also asked him how achievable he thought it’d be to set a default jury size and jury voting-rule across all states. His answer was that there are many great reasons for states to have their own rules. He provided the Federalist concept of states’ rights that our country was built upon as an example. I would certainly agree with Professor Felter, as the arguments for allowing flexibility of jury size across states have provided me with a new appreciation and understanding for the need of states’ rights. He went on to further explain that setting a default jury size and jury voting-rule across all states would be extremely difficult to implement, as each state has its own traditions, laws, and rules.


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In Williams v. Florida (399 U.S. 78 [1970]), the Supreme Court interpreted the Sixth Amendment to allow for jury sizes smaller than twelve as long as the smaller juries continue to contain the representativeness of a community. Through studies on jury sizes and the interview with Professor Felter, it is apparent that the flexibility provided by the Court allows for areas with different characteristics around the country to utilize the jury size that fits best. The jury trial procedure was created to protect citizens and it is one of the oldest rights provided by the United States. A proper jury trial system should be both fair and efficient, and a uniform jury trial system across the United States would fail to recognize that the United States is not a homogenous nation. The people and areas across the United States are fairly heterogeneous, so the flexibility provided by the Supreme Court’s decisions allows for the continued protection and fairness of the right to a jury trial.


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JENNINGS V. RODRIGUEZ: AUTOMATIC BOND HEARINGS FOR LONG-TERM IMMIGRATION DETAINEES CHICO PAYNE STAFF WRITER

Alejandro Rodriguez was placed in detention for removal proceedings by the Department of Homeland Security. Now, in the case of Jennings v. Rodriguez, the Supreme Court recently heard arguments as to whether those currently subject to mandatory detainment under 8 U.S.C. § 1225(b), undocumented persons, and non-citizen residents convicted of crimes including misdemeanors, subject to detention under 8 U.S.C. § 1226(c), must be allowed to have automatic bond hearings with the possibility of release if detention exceeds six months. The government cited the precedent of Demore v. Kim in its brief to the nation’s highest court, stating that detainment during deportation proceedings is constitutionally valid. This essay evaluates the arguments put forth before the Supreme Court by the defendants and plaintiffs in this case of national importance.

On Tuesday, October 3, the Supreme Court heard oral arguments for Jennings v. Rodriguez, a case where the ruling will greatly affect the lives of potentially thousands of people and reshape the way that the United States carries out detention. The primary question in the case is whether persons seeking admission into the United States, currently subject to mandatory detention under 8 U.S.C. § 1225(b), undocumented persons, and non-citizen residents convicted of crimes including misdemeanors, subject to detention under 8 U.S.C. § 1226(c), must be allowed to have automatic bond hearings with the possibility of release if detention exceeds six months.1 In this

1

Br. for the Pet’r’s at I, Jennings v. Rodriguez, S. Ct. (2017) (No. 15-1204).


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circumstance, a bond hearing is an appearance before a judge to determine if a detainee is eligible for release by paying a bond. A bond is a sum of money that provides a court assurance that the defendant will return to future appearances. If the defendant appears, the bond is returned, but if he does not, the bond is surrendered to the government. A bond hearing can be a way to reduce the time that the accused spends in confinement. This article will attempt to identify the arguments contained in the briefs, show how the Justices reacted when these claims were made in oral arguments, and suggest whether some of the arguments are stronger than others. A. Procedural History The matter began when Alejandro Rodriguez was placed in detention for removal proceedings by the Department of Homeland Security.2 Rodriguez, a lawful permanent resident who came to the United States as an infant, had prior charges of joyriding and possession of a controlled substance.3 Throughout his challenges against the removal charge before the Immigration Judge, Board of Immigration Appeals, and Ninth Circuit, he remained detained for more than three years without a bond hearing.4 He eventually won his case and maintained his lawful permanent resident status.5 As a result of this ordeal, the Central District of California certified an affected class within its bounds who had been detained for removal proceedings longer than six months, who are not held on charges related to a national security statute, and have not been provided a bond hearing.6 This class consists of subclasses including asylum seekers, undocumented persons, and legal non-resident citizens, collectively referred to as “aliens.” In August 2013, the District Court granted the class members a permanent injunction, requiring that the government provide automatic bond hearings upon the 195th day of detention and indicating that it bears the burden of proving that the Resp’t’s Br. at 5, Jennings v. Rodriguez, S. Ct. (2017) (No. 15-1204). Ibid., 6. Ibid. 5 Ibid. 6 Br. for the Pet’r’s, supra, note 1, at 8. 2 3 4


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detainee is a flight risk or danger to the community in order to continue detention.7 The government would appeal this decision and argue that the Court did not apply “the canon of constitutional avoidance to each of the statutes at issue.”8 This canon refers to the belief that federal courts should only rule on constitutional issues if there are no non-constitutional provisions under which to rule. The matter progressed to the Appellate Court. The Ninth Circuit considered the long durations with which class members, those who have been detained for more than six months without a bond hearing, have been under government custody. The Court cited the fact that the average class member spent about 404 days in immigration detention.9 As if this was not surprising enough, the Court noted that “nearly half are detained for more than one year, one in five for more than eighteen months, and one in ten for more than two years” and that one member in the class had gone nearly four and a half years without a bond hearing.10 They also took notice of the class’s strong ties to the community; many within the class had lived in the United States for more than twenty years, married a citizen, and had children who were citizens.11 In the Court’s decision, it finds that “in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”12 It later judges that the detainment period bears no relation to the severity of the crime and that often a “class member was sentenced to one to three months in prison for a minor controlled substances offense, then endured one or two years in immigration detention.”13 The Court invokes an established principle, “that longer detention requires more robust procedural protections.”14 For these reasons, the Court mostly

Rodriguez v. Robbins, 804 F.3d 1071 (9th Cir. 2015) (Rodriguez III) Ibid. 9 Rodriguez v. Robbins, supra, note 7, at 1072. 10 Ibid. 11 Ibid. 12 Ibid. at 1074 (quoting United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). 13 Ibid. at 1079 (emphasis original). 14 Ibid. at 1088 (citing Diouf v. Napolitano (Diouf II), 634 F.3d 1081 (9th Cir.2011) at 1086). 7 8


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upheld the injunction and required that the government must provide period bond hearings every six months.15 B. Appeal before the Supreme Court The government appealed this decision to the Supreme Court and was granted a Writ of Certiorari. In its brief before the Court, the government cites precedent from Demore v. Kim which established that “detention during deportation proceedings [i]s a constitutionally valid aspect of the deportation process.”16 It contends that the statute cannot be plausibly read to require a bond hearing every six months; furthermore, any rare circumstance where a constitutional issue is present could be corrected by an individual habeas proceeding.17 A habeas proceeding is a means by which a detainee or prisoner is able to appear before a judge to air grievances about whether the detention is lawful. The petitioners highlighted the importance of their argument that the Ninth Circuit erred in creating an automatic bond hearing, saying that this creation “subverts Congress’s purpose of strengthening control of the border” and that this parameter should only have been made by a legislative body.18 Justice Alito seemed to be at least partially sympathetic to this view when it was presented in oral arguments. He inquired about the seemingly arbitrary nature of the six months figure and the role of the Court in making this determination, saying that “it can be done by Congress. It can be done by regulation. But it's quite something to find six months in the Constitution. Where does it say six months in the Constitution?”19 The government opposes the onus placed on it to bear the burden of proof at bond hearings.20 It contends that the detainee would benefit from having asymmetric information about the Ibid. at 1089. Br. for the Pet’r’s, supra, note 1, at 15 (quoting Demore v. Kim, 538 U.S. 510, 523 (2003)). 17 Ibid. at 25. 18 Ibid. 19 Transcript of Oral Argument at 42, Jennings v. Rodriguez, S. Ct. (2017) (No. 151204), available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/151204_m6hn.pdf. 20 Br. for the Pet’r’s, supra, note 1, at 50. 15 16


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dangers that he poses or his flight risk.21 This argument suggests that the Department of Homeland Security would not have enough information to prove that the detainee is a danger, possibly resulting in the parole of many detainees.22 Finally, the petitioners claim that detention should not be considered unconstitutional because it is based in part on the detainee’s decision to challenge his own removal.23 In effect, the detainee is at liberty to end his period of detention by ceasing to challenge his removal and allow the government to deport him back to his own country – even if it has been determined that returning to that country presents him with a “credible claim of persecution.” In oral arguments, the counselor for the petitioners characterized this as his most extreme answer.24 Justice Kagan found this line of reasoning unconvincing, commenting “I take it that that's your most extreme answer because it doesn't sound all that good.”25 This statement was meant with laughter from those present, possibly indicating affirmation with that sentiment.26 The respondents start their brief’s argument by quoting an earlier case decided by the Court, Zadvydas v. Davis, writing that “freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.”27 They claim that there exists no other civil detention system without an institutionalized process for individualized hearings for parole.28 This fundamental claim might be the one which resonates with the widest audience. Justice Sotomayor expresses this view when she asks the petitioners “[in] what other area of law have we permitted a government agent on his or her own, without a neutral party looking at that decision, to detain someone indefinitely?”29

Ibid. at 51. Ibid. 23 Ibid. at 13. 24 Transcript of Oral Argument, supra, note 19, at 25. 25 Ibid. 26 Ibid. 27 Resp’t’s Br., supra, note 2, at 17 (quoting Zadvydas v. Davis, 533 U.S. 678, 690 (2001)). 28 Ibid. at 18. 29 Transcript of Oral Argument, supra, note 18, at 6. 21 22


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Next, the council for Rodriguez and other class members contend that the canon of constitutional avoidance does not apply in this case because none of the statutes contained in the government’s brief are clearly applicable to detention longer than six months.30 It is this six-month figure that received the most attention during oral proceedings, and it is here that we find what may be a weaker portion of the respondent’s position. They brief several instances where the Supreme Court had established “bright-line rules in ensuring efficient compliance on limits of state authority.”31 The existence of bright-line rules is clearly demonstrated; however, there is nothing so clear about the guideline in this case. Respondents cite the fact that all three branches of government have used the six-month figure as a guidepost for prolonged confinements, underscoring Zadvydas as an instance where the Court imposed this duration.32 While it is true that the Court used this duration as a limit for long-term detentions, the case was about the period after a detainee had already been ordered to be removed and was awaiting removal.33 In fact, several countries had already refused to accept Zadvydas when the United States repeatedly attempted removal.34 While Zadvydas does present some precedence for a six-month rule, it does not provide a rule for these circumstances and does little to diminish criticism regarding the canon of constitutional avoidance. Now able to return to a stronger portion of their position, the respondents oppose the argument that the burden of proof in bond hearings should fall on the detainees.35 Instead, they favor the long-held tradition that the government should bear this burden with “clear and convincing evidence.”36 Their brief cites Foucha v. Louisiana, 504 U.S. 71 (1992) as an instance where the Court has struck down attempts to shift the burden of proof onto a

Resp’t’s Br., supra, note 2, at 33. Ibid. at 37 (see also Maryland v. Shatzer, 559 U.S. 98, 110 (2010); Cty of Riverside v. McLaughlin, 500 U.S. 44 55-56 (1991); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 372-74 (1971)). 32 Ibid. at 38. 33 Zadvydas v. Davis, 533 U.S. 678, 699 (2001). 34 Ibid. at 684. 35 Resp’t’s Br., supra, note 2, at 49. 36 Ibid. 30 31


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defendant.37 They also provide an alternative method that might mitigate the government’s concern over flight risk: the use of electronic monitoring which has proven successful at ensuring appearance at later proceedings.38 By these means, the government would be able to diminish the flight risk without having to move the burden of proof in an unconstitutional fashion. This suggestion seems reasonable especially when there is little to no evidence to suggest that the detainee would pose a flight risk or would be a threat to the community. Finally, the represented classes oppose the notion that detainees could seek recourse under a habeas proceeding, referring to this as a “draconian view” to which “every court of appeals to consider it has rejected it.”39 They aver that the petitioners do not fully understand the constitutional due process requirements and that habeas proceedings are not a way to remedy them.40 Beyond the constitutional failure of this suggestion, there is also a practical concern: many detainees have little choice but to proceed pro se, “have limited access to legal resources, often lack English-language proficiency, and are sometimes illiterate.”41 These statements regarding practicality are enough to suggest that it would prove difficult, if not impractical, for every member of the effected class in these circumstances to complete the paperwork required for habeas. Perhaps most troubling for some of the Justices was the fact that certain classes of people are denied bond hearings even while there are clearly established procedures for bail hearings in most other situations. Justice Breyer highlighted this discomfort when he wondered out loud why people who arrive via airports with a credible claim of prosecution do not get bail hearings when “we give triple ax murderers, at least people who are accused of such, bail hearings.”42 The already contentious case took another turn when, more than a month after oral arguments, Justice Kagan, who certainly seemed to side in favor of granting more rights to the affected Ibid. at 50. Ibid. at 51. Ibid. at 23. 40 Ibid. at 25. 41 Ibid. at 26. 42 Transcript of Oral Argument, supra, note 19, at 11. 37 38 39


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class, sent a letter to both parties informing them that she was recusing herself from the case.43 The letter detailed that she had been made aware that during her tenure as Solicitor General, she had authorized part of the pleadings to be filed.44 This involvement was significant enough to cause a recusal. The resulting shift in the balance of the Court could cause a stalemate and prevent it from settling the matter. In this circumstance, the ruling by the lower court would stand, granting automatic bond hearings after six months of detention.

Amy Howe, Kagan recuses from immigrant-detention case,SCOTUSBLOG (Nov. 10, 2017, 10:16 PM) 44 Ibid. 43


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NOT ABOVE THE LAW: FRAUDULENT PRACTICES BY TIMESHARE COMPANIES TANNA WISE STAFF WRITER

In 1974, the timeshare industry took off in the United States. It has since become fraught with malevolent business practices and consumer abuse. Timeshare resale scams have topped the Consumer Federation of America’s top ten list of consumer complaints. Owners are saddled with rapidly expanding costs when companies charge for maintenance fees and then those same companies refuse to buy back properties once sold. This article will evaluate the illegal tactics that timeshare companies use and the dangers these properties represent to particular demographics.

When 95-year-old Harold Spencer first purchased a timeshare, it was with the expectation that he could pass along a financial investment and vacation experience to his descendants. Little did he realize the financial burden this would become to himself and his family. “I was originally told that for $329.76 a year, I could own a beachfront property for me and my family. Five years later, I owe over $60,000 in fees to the timeshare company. My credit has been ruined and I can’t even use or sell the timeshare.”1 Sadly, Mr. Spencer’s experience is not atypical. 1974 marked the birth of the timeshare industry in the United States, an industry that was to become fraught with malevolent business practices and consumer abuse. This new market revolved around one simple premise: while previously only the most affluent members of society could afford to vacation at luxury resorts, now the average individual and her family could as well. Rather than be saddled with the responsibilities and costs of buying a vacation estate, an owner could take advantage

1

Author, and Harold Spencer. “Fraudulent Timeshare Practices.” 11 Oct. 2017.


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of the same vacation property for one week out of the year, at a fraction of the cost. This innovation meant that, instead of selling a condo unit at Disney World or Niagara Falls to a single buyer, a developer could market the unit based for a specific time, called an “interval”. While a family could guarantee their stay at a vacation destination for a fraction of the cost associated with buying the entire property, a developer could capitalize on the idea of marketing a single unsold condo during an era of overdevelopment and high interest rates, for 52 weeks and sell to as many as 52 owners, each responsible for paying a share of the overall price. It appeared to be a win-win for all involved. Wherever a market exists, deceptive or fraudulent activity can also be present. This proclivity also applies to the timeshare industry. Timeshare fraud is one of the most rampant issues in the timeshare marketplace and has gained notoriety from an escalating number of consumer complaints. In fact, timeshare resale scams have topped the Consumer Federation of America’s top ten-list of consumer complaints.2 In 2016, problems with timeshares were the fastest growing complaint to the New York Department of State Division of Consumer Protection and among the worst complaints for the nation as a whole.3 Timeshare fraud is perpetrated in varying ways: from the millions of dollars of unwanted timeshares sold to consumers through high-pressured and over-aggressive sales presentations, to deceptive business practices. Timeshare contracts often contain nondisclosed hidden fees that are coerced upon timeshare owners. These problems are compounded by unregulated increases in annual maintenance fees, negligent upkeep of properties, and misrepresentation of the product. Unfortunately, timeshare companies use fraudulent

“2011 - Nation's Top Ten Consumer Complaints · Consumer Federation of America.” Consumer Federation of America, 31 July 2012, consumerfed.org/press_release/nations-top-ten-consumer-complaints/. 3 North American Consumer Protection Investigators. “Consumer Federation of America North American Consumer Protection Investigators 2016 Consumer Complaint Survey Report.” Consumer Federation of America North American Consumer Protection Investigators 2016 Consumer Complaint Survey Report July 27, 2017Table of Contents, 27 July 2017, consumerfed.org/wpcontent/uploads/2017/07/2016-consumer-complaint-survey-report.pdf. 2


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devices or perform illegitimate acts in an attempt to mislead timeshare owners for their own financial gain.4 As of 2017, there exist more than 1,600 timeshare properties, 9.2 million owners, and over $10.2 billion invested in the United States timeshare industry alone,5 as reported by the American Resort Development Association (ARDA), a timeshare development trade group. As the industry expands, many timeshare companies are clamoring to reinvent themselves. The original timeshare company model, centered on development, directly sold a share of a property to a consumer, managed the property, and arranged for project financing. As this model evolved, the timeshare company assumed the role of a broker, which specialized in negotiating exchanges between timeshare interval owners, in the event a consumer wanted to exchange their week for a different time period or location. In addition, some timeshare companies became exit companies to assist consumers in unloading unwanted timeshares. Rather than occupy one segment of sales, many companies are expanding horizontally, to entice buyers at all levels of the industry. Today, the two main timeshare conglomerates are Resort Condominiums International (RCI) and the smaller network, Interval International (II). Originally founded in 1974 by Jon and Christel De Haan, RCI is the world’s oldest holiday timeshare company. It began as Resort Condominiums International until it reorganized in 2010 to Group RCI. After Group RCI, the company again reorganized to RCI and has since branched out to include Silverleaf, Wyndham Exchange and Rentals, Wyndham Destination Network, and Wyndham Vacation Club. RCI has reorganized to become a timeshare exchange broker, wherein a customer can become a paid member through a timeshare exchange. Yet, its subsidiary, Wyndham Vacation Club serves as the arm of the RCI empire which develops and sells timeshares. Effectively, RCI is involved at every aspect of timeshares: from the development to sales to brokerage, to resale. As former Strickler, Laura. “Timeshare Marketing Scams on the Rise.” CBS News, CBS Interactive, 18 Aug. 2011, www.cbsnews.com/news/timeshare-marketing-scams-onthe-rise/. 5 “Department Listing.” ARDA : ARDA News and Information : Press Releases : Timeshare Industry Adds $79.5 Billion to U.S. Economy, 9 Aug. 2016, www.arda.org/timeshare-industry-adds-79-billion-to-US-economy.aspx. 4


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Wyndham Sales Representative, James S., states, “Since RCI now owns Wyndham and the most properties in the business, you don’t have much choice,”6 regarding timeshare company options. Although many potential clients have heard malicious feedback from former Resort Condominiums International and Group RCI customers, they are much more likely to purchase from a timeshare company they do not realize is part of the RCI family, companies like Silverleaf or Wyndham. Because of its many reorganizations, it is unclear to potential timeshare buyers that they are purchasing from the RCI brand. Many owners appear happy with their purchases and routinely vacation in their time shares during their prearranged week. However, the timeshare industry has long held a reputation for fraudulent and malicious sales practices.7 Owners often encounter unforeseen challenges including increasing annual maintenance fees and being saddled with an asset that has little resale value and no equity. Increasingly, reselling a timeshare is notoriously difficult, as many timeshare companies are often unwilling to buy back sold units. Following the 2007 recession, the timeshare industry was hit especially hard. The steep economic downturn caused timeshare sales to decline sharply, leading to the layoffs of hundreds of salespeople.8 At the same time, the resale market became flooded with owners desperate to unload their units. One major burden timeshare owners realize is the mandatory contractual requirement to pay an annual fee for property maintenance. For example, the timeshare association will use fees to pay for things like landscaping, security, pest control, repairs, and maintenance of amenities (such as pools, golf courses, workout rooms, and clubhouses). As described in one Silverleaf contract, “Buyer or buyer’s successor will be required to

S., James. “Conflict of Interest Wyndham/ RCI.” RedWeek, 17 Feb. 2009, www.redweek.com/forums/messages?thread_id=15412;page=1;query=. Accessed 11 Nov. 2017. 7 “2016 Was a Record Year for Timeshare Fraud: Were You a Victim?” American Consumer Credit, American Consumer Credit LLC, 10 Mar. 2017, aconsumercredit.com/timeshare-scams/2016-record-year-timeshare-fraud-victim/. 8 Hemlock, Doreen. “Trouble for Timeshares.” Sunsentinel Tribune, 18 Jan. 2009, articles.sun-sentinel.com/2009-01-18/business/0901160074_1_timeshare-industrytimeshare-sales-timeshare-loans 6


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pay a monthly membership assessment to the Club. The membership assessment is based on the common expenses and costs of the Silverleaf Resorts, including, but not limited to, ad valorem property taxes, utilities, maintenance, management, and administrative expenses reserved for deferred maintenance and the like. The monthly membership assessment may be increased by the Club from time to time and the Club is also authorized to make special assessments from time to time.”9 Timeshare maintenance fees vary from place to place, but they are often as much as many hundred dollars per year. Unfortunately, maintenance fees are required, even if you choose not to use your timeshare. These fees have recently made a sharp increase. In the case of Mr. Harold Spencer, his original 2004 RCI contract stipulated that fees were $329.76. However, thirteen years later, the property’s annual rates recently surpassed $850.00.10 As timeshare collectives begin to lose value, the maintenance fees are likely to rise every year, as is shown in Figure 1. According to the American Resort Development Association, timeshare average maintenance fees increase 8% per year.11 Some collectives, including RCI and Wyndham, have been known to raise yearly maintenance fees as much as 20% per year. However, the initial contract leaves no room to refuse payment of the annual maintenance charges or to exit the contract. The rights and financial obligations of ownership are passed on to the heirs of the estate, obligating the estate heirs, throughout their lifetime and beyond. In many cases, consumer questions are met with assurances that are untrue, including false guarantees regarding the use and cost of the timeshare. Sales teams want the buyer to believe that, when purchasing a timeshare, the timeshare will not pose a burden to their budget. Sales team members guarantee that maintenance fees will increase slowly, or in tandem with low cost of living increases nationally. Yet, in reality, a timeshare owner is responsible for any increase in maintenance fees. In other

Ibid Author, and Harold Spencer. “Fraudulent Timeshare Practices.” 11 Oct. 2017. Net, Hospitality. “American Resort Development Association (ARDA) – Hospitality Net.” Hospitality Net, 11 Aug. 2016, www.hospitalitynet.org/organization/17002047/arda.html. 9

10 11


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words, there is no limit on the amount maintenance fees may increase. These fees are not regulated or capped by law and are legally enforceable per the original contractual agreement. As an RCI contract stipulates, maintenance fees, “are subject to increase from time to time.”12 Because it is inherent within the contract, consumers make little, if any progress, when they protest against the timeshare for aggressive fee spikes. There are many aspects to property management which can reduce profitability for potential timeshare investors. From natural disasters to broken appliances to guest damage, clients are charged for any unforeseen fees at any time. As timeshare owner Debbie Kovak recalls, “When we arrived at our timeshare in the Bahamas, we informed the property manager and maintenance staff that the air conditioner was not working. The entire week we were there, the air conditioner was never fixed, despite asking every day. On our last night, the manager informed us that we would be held responsible for repairs to the air conditioner. We were billed, but the air conditioner was never fixed for the duration of our stay.”13 There is often little oversight to ensure repairs are made on timeshares, despite charging customers for broken appliances or damage due to other guests. When Mr. Spencer purchased a timeshare through RCI in Gulfport, MS, he was never given the option to purchase insurance on his timeshare. Moreover, RCI refused to allow Mr. Spencer to purchase external insurance on his property. When a hurricane hit Gulfport seven years later, Mr. Spencer’s timeshare began to flood. RCI charged Mr. Spencer and each of the other timeshare owners an unforeseen $59,000 per timeshare interval for weather-related damage, in addition to the already crippling increase in maintenance fees.14 As a result of the repairs, Mr. Spencer and other Gulfport timeshare owners were unable to use their timeshare for 1-3 years, during the repair period, despite having paid for the repairs.15 “In the Gatlinburg/ Pigeon Forge Wildfires last December, hundreds of properties were destroyed, including some timeshare resorts. Consumers complained that March 27, 2004 RCI Contract for Sale, “Owner Confirmation Interview” Author, and Debbie Kovak. “Deceptive Timeshare Practices.” 4 Oct. 2017. Author, and Harold Spencer. “Fraudulent Timeshare Practices.” 11 Oct. 2017. 15 Author, and Harold Spencer. “Fraudulent Timeshare Practices.” 11 Oct. 2017. 12 13 14


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timeshare companies were still demanding that they pay their annual and maintenance fees even though the properties were unusable. One couple that bought a timeshare… never even got a chance to use it before the resort was consumed by fire. They asked to cancel, but the company insisted that they could use other timeshare properties—if they upgraded for an additional fee.”16 Timeshare owners also report unforeseen regular charges for normal wear and tear or damage stemming from other tenants. Often, clients fail to realize that these contracts can cause financial hardships, binding owners to pay unexpected special assessments—extra fees paid to the collective association to offset unexpected expenses. These fees are charged on top of standard maintenance fees, utility fees, and taxes, and can come at any unexpected time during the length of ownership. For example, a resort may levy a special assessment to pay for a new roof for the community clubhouse or to pay for new tennis courts. These assessments are required to be paid whether you choose to use those facilities or not. Timeshare property owners are also expected to pay time share companies for utilities. Some companies base this on the electricity utilized and bill owners for it at the end of the week. This can get expensive in tropical beach locations where owners run the air conditioning all week or in cold locations (like at a ski condo in winter) where it is necessary to generate heat. Property taxes may also be assessed against the time an owner occupies the timeshare. Alternatively, some places impose a timeshare tax for each night an owner stays in the timeshare. All in all, these costs (collectively referred to as “assessments”) can add up very quickly. Timeshare fraud is aimed at a range of demographics, but the largest majority of victims are senior citizens.17 Promises and North American Consumer Protection Investigators. “Consumer Federation of America North American Consumer Protection Investigators 2016 Consumer Complaint Survey Report.” Consumer Federation of America North American Consumer Protection Investigators 2016 Consumer Complaint Survey Report July 27, 2017Table of Contents, 27 July 2017, consumerfed.org/wpcontent/uploads/2017/07/2016-consumer-complaint-survey-report.pdf. 17 Acc. “The Investment Lie: Why Timeshares Target American Senior Citizens.” American Consumer Credit LLC, American Consumer Credit LLC, 3 July 2017, aconsumercredit.com/timeshare-cancellation/investment-lie-timeshares-targetamerican-senior-citizens/. 16


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emotional selling are deliberately designed to entice seniors into an expensive, and potentially catastrophic financial obligation.18 Timeshare companies often use lengthy sales presentations to wear seniors down and convince them to buy. Many seniors are told that extra, unused weeks would be eagerly used by other family members. Seniors are swayed by emotional sales tactics including perpetuating the belief that a timeshare would draw the family to vacation together, the same time every year, to build a warm tradition and memories. One former Wyndham employee, who prefers to remain anonymous, stated that he was routinely urged by the corporation to sell the idea of family involvement to seniors. “We were told to gloss over the fact that contracts contained a perpetuity clause. Usually, we relied on customers to not read or question the contracts. In fact, we intentionally wedged this part of the contract between other clauses, so that people wouldn’t ask. When customers did question the perpetuity clause of the timeshare contracts we sold, we were pushed to sell senior customers on the idea that the next generation of family members would want to inherit the timeshare.”19 Seniors are often targeted because of failing eyesight which means they are unable to read the contracts, thus relying on the verbal promises of the timeshare salesman. In addition to deceptive and emotional sales tactics sales teams employ to unduly influence senior customers, they also intimidate victims through threats. Senior timeshare owner, Victoria Templeton, recounts her experience of being promised tickets to Epcot Center and a free lunch if she would only, “listen to a short presentation”. After two hours of presentation and sales pitch, she said she wanted to leave with the promised tickets, whereupon she was told that, “the doors were locked.”20 When she tried to leave, sales team members blocked the door and threatened her that if she left, her credit card would be charged for the tickets and lunch. At this point she felt pressured

Schreier, Lisa Ann. “How to Spot Timeshare Scams.” Senior.com, 19 Aug. 2016, senior.com/spot-timeshare-scams/. 19 Author, and Anonymous Former Wyndham Employee. “A Former Employee's Observations of Wyndham Timeshare Practices.” 13 Nov. 2017. 20 Author, and Victoria Templeton. “Malicious Timeshare Industry Practices Aimed at Senior Citizens.” 19 Oct. 2017. 18


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to sign the contract, in order to leave. Like Ms. Templeton, many seniors fall prey to this undue pressure. Timeshare contracts are unique in one major regard: the binding contract, which obligates owners and their families to the terms of the contract, extends beyond the death of the original owner. This ‘perpetuity clause,’ endemic to timeshare contracts, means that the ownership of a timeshare property extends indefinitely. Contracts involve a legal exchange of promises to complete an action, meet terms, or complete an agreement. Parties breach a contract when the person fails to perform the duties assigned by the agreement, yet death makes the performance of duties impossible. While death voids many contracts, the perpetuity clause within timeshare contracts is one of the few circumstances where a contract remains in force, even when one party to the agreement dies. Not only do the perpetuity clauses in timeshare contracts fail to provide the original consumer an exit strategy, but they obligate future generations to an increasing debt without their consent or free agency. Like other contracts, according to the Federal Trade Commission Act,21 individuals should be able to exit these collective contracts if they believe they were deceived or if the timeshare association breached the contract. However, perpetuity clauses apply to a transfer of rights or articles that survive contract termination. They are described as contracts that last forever or for an indefinite period of time. This clause requires you to pay the associated costs of owning a timeshare for the rest of your life. When you pass away, the timeshare becomes part of an estate. This obligation is then passed to your designated beneficiary or next of kin. Such contracts offer pre-printed terms and conditions, within which the consumer is not permitted to make any alterations, whatsoever. As a result, dissatisfied owners cannot expect timeshare collective companies to release them from their contracts; the clients and their dependents are responsible for meeting the demands of these companies, without a way to exit the contracts. Although no current federal legislation prohibits perpetuity contracts, several states,

“Federal Trade Commission.” Federal Trade Commission, 4 Dec. 2017, www.ftc.gov/. 21


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including Texas, have legal doctrines discouraging never-ending contracts.22 In all other aspects of contract law, a legally recognized contract is one in which each party has the free agency to consensually enter into the contract. Without this free agency, contracts are considered null and void for reasons including possible coercion, breach of contract, or fraud. Fundamental contract elements include the capacity to contract and the legality of the contract, which forbids contracts made by people without the legal party present to commit to the action. At no point should descendants be obligated by the perpetuity clause of a contract which they, themselves, did not enter. For example, it is for this reason that a non-owner is not permitted by law to sell another person’s car or house without the consent of the owner. Federal, state, and local laws typically void a contract when any of the principle signers die. Timeshare contracts should not be exempt from the common contract parameters as established by rule of law. Yet, timeshare companies oblige clients to sign on behalf of future generations to purchase a property. RCI contracts specifically state, “This Contract and the agreements and promises herein set forth shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, assigns, successors and personal representatives, and the provisions of this contract shall survive the closing of this transaction.”23 Furthermore, RCI requires clients to certify that the contract,” does not represent a financial burden to me or my family.”24 It is not possible that a potential client may be able to attest to the financial solvency of future generations. Timeshare companies are effectively coercing clients into signing this clause by making it mandatory to agree to these terms, in order to obtain the product. As it stands now, the U.S. has yet to illegalize perpetuity clauses. Several of these timeshare companies are under investigation by Attorney General’s offices in Florida, Tennessee, Wisconsin, Colorado, New York, Minnesota, and California. The

Texas Property Code - PROP § 112.036. Rule Against Perpetuities March 27, 2004 RCI Contract for Sale, “Owner Confirmation Interview” 24 Ibid 22 23


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U.S. Attorney General’s Office and Consumer Protection Agency are also evaluating fraudulent timeshare claims. The Federal Trade Commission (FTC) announced 191 law enforcement actions to spotlight timeshare scams, including three FTC cases, 83 civil actions in 28 states, and 25 law enforcement actions brought in ten countries.25 Other nations, including Israel, South Africa, and Spain have already made perpetuity clauses unlawful.26 The only exit strategy for dissatisfied timeshare owners is to sell their interval, however timeshares do not have a resilient resale market, meaning clients often cannot find buyers to take over the contract,27 so they are left owing monthly maintenance fees, which continue to increase. As the timeshare depreciates in value, the fees will likely increase. When payments are not made, this can lead to the accumulation of late fees. The timeshare buyer will ordinarily be responsible for maintenance fees, special assessments, utilities, and taxes pertaining to the property. If she becomes delinquent in paying those fees and assessments, the timeshare association (the governing body that is responsible for the operation of the timeshare project) will be able to get a lien on the timeshare that could lead to a foreclosure. On some occasions, the resort will foreclose and take back the timeshare. Or, alternatively, they may opt to send the debt to a collection agency or hire a lawyer and pursue legal action in court against the timeshare owner. What people often fail to realize is that even if they are current in their deeded timeshare mortgage payments or the timeshare purchase price has been paid off, they could still face a foreclosure if they fail to keep up with the assessments (or they could also be sued for the amount of the indebtedness). The rules of the timeshare are set forth in what is called the Declaration of Covenants, Conditions, and Restrictions. The Declaration usually

“FTC and Dozens of Law Enforcement Partners Halt Travel and Timeshare Resale Scams in Multinational Effort.” Federal Trade Commission, 14 Jan. 2015, www.ftc.gov/news-events/press-releases/2013/06/ftc-dozens-law-enforcementpartners-halt-travel-timeshare-resale. 26 “Timeshare Contracts & Perpetuity Contracts.” TESS (Timeshare Exit & Support Services) Limited, 24 Oct. 2017, tesslimited.co.uk/timeshare-contracts/. 27 Group, Timeshare Users. “Learn the Truth about Timeshare Resale Prices!” What Is Your Timeshare Worth | Timeshare Users Group!, tug2.net/timeshare_advice/cold_hard_facts_about_selling_your_timeshare.shtml. 25


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provides that if there is any default in the payment of fees, costs, and assessments owed by an owner of a timeshare interest, the entire unpaid assessed sum with accrued interest and other charges shall become a lien against the timeshare interest of the non-paying owner. A real estate foreclosure or lien can be extremely detrimental to an individual’s credit report and may impact their borrowing ability in the future. However, if the estate has assets at the time of death, the assets must be used to satisfy the debt. Some assets are exempt, such as homesteaded property, but assets subject to probate are often unprotected. Generally, timeshares and collectives cannot be donated or written off as a loss. Because the Internal Revenue Service (IRS) revoked the ability of nonprofit organizations to receive taxexempt status if they accept timeshare donations, most non-profit companies will not accept timeshare property donations. Not only would it require recipients to pay federal taxes on the property, but the non-profit companies would be required to pay the annual maintenance fees.28 Contractual perpetuity clauses are especially nocuous to the dependents of clients, who inherit these debt obligations without the ability to donate or resell the timeshare interest. As a result, the credit scores and future borrowing capacity of dependents and beneficiaries may be adversely impacted. In addition to the lack of exit strategies, timeshare owners may be subjected to fraudulent and deceptive practices by the timeshare company. There have been instances timeshare companies, including Silverleaf and RCI, refuse to give clients a written copy of the original contract for reference. Instead clients are given shortened versions of the contract, which do not include all provisions of the original contracts. These shortened contracts are designed to reference the full contract and original declaration, without providing the client with the ability to review the original contract or present it to others for help or consultation. Failing to provide customers with a complete copy or concealing provisions of the signed contract is a deceptive trade Reilly, Peter J. “IRS Revokes Exempt Status Of Charity Focused On Timeshare Donations.� Forbes, Forbes Magazine, 19 Sept. 2017, www.forbes.com/sites/peterjreilly/2017/09/19/irs-revokes-exempt-status-of-charityfocused-on-timeshare-donations/#7404c0f78101 28


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practice, currently prohibited by several state laws, including those in California, Maine, and New York. Many timeshare companies, such as Wyndham and Disney, offer timeshare packages in the form of “points”, in which an owner enters into a legally-binding contract to exercise the use of these “points” by going on vacation annually or on a bi-annual basis. There are many undisclosed disadvantages that result from the use of these “points.” Most timeshare owners are required to book a vacation nearly a year ahead. What most timeshare sales teams fail to mention is that the points system is skewed.29 Points depreciate, requiring individuals to purchase more points every new year to obtain the same initial promise. Timeshare units are often not available during the time period clients look to reserve units. If this is the case, clients cannot use the points, which results in the devaluation of their initial investment. While timeshare companies propagate the idea that timeshares are quality investments for clients’ futures, timeshares can instead be major liabilities. In the instance that timeshare owners are unable to use their purchased week or are powerless to sell the week to others, they may not seek compensation for the unused investment. A Silverleaf contract notes that the “Buyer is purchasing the Vacation Ownership Interest for his own use and not as an investment.” There is, however, no clause stipulating that the property management company cannot rent out the unit and profit from the property as a result. Yet, the timeshare owner receives no compensation from or notice of this income. Typically, property management companies will inflate the cost of the week and sell it through last minute timeshare rental companies or 3rd party sites, including Hotels.com or eBay, retaining all of the profit derived. In 2006, a class action lawsuit against timeshare mogul, RCI, alleged that RCI rents the most desirable and highdemand vacation weeks from the space bank, thus depleting the most desirable options available to Weeks Program members who seek exchanges. The lawsuit was settled in favor of the Program Members.

Author, and Anonymous Former Wyndham Employee. “A Former Employee's Observations of Wyndham Timeshare Practices.” 13 Nov. 2017. 29


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In most cases, timeshare resorts are managed by a board of directors, which votes on any increase in maintenance fees. Although a timeshare owner may determine through a vote who is elected to the board of directors, in almost every case, the candidates either work for or are involved with the timeshare sales team, in some capacity. According to a former Wyndham timeshare employee, “It doesn’t matter who is voted in. The candidates all have the same prerogative: to raise maintenance costs for clients as often and as much as possible.”30 Maintenance fees tend to increase anytime the board of directors feels that revenues are falling short of annual targets. Many timeshares have been legally accused of radically increasing expenses, without providing evidence or justification for the fee spike. There is little or no remedy for the timeshare owner as their only recourse is to complain to the board of directors that was responsible for the rate hike in the first place. Timeshare sales companies intentionally utilize a strategy to promise everything and deliver very little, except for years of frustration and escalating costs to their clients. If affordability of vacations was the lead motivation for purchasing, many companies are confident that members will not want to spend more for legal counsel, to fight terms of the contract. To help guarantee that this is not the case, companies build in binding arbitration clauses to every contract, prohibiting clients from attempting to sue them for damages. The standard RCI contract is one example of this. Laws prohibiting unfair and deceptive trade practices in consumer transactions have been enacted in every state. They apply to almost all consumer transactions and are extremely flexible and potent. They are in place to help prevent fraudulent behavior practiced by a business, including timeshare companies. If the timeshare company fails to fulfill its contractual promise, for example by reorganizing to change its obligations to the client, there may be cause for breach of contract. Additionally, many timeshare sales companies are also guilty of misrepresentation and duress- false statements of fact and threats made to clients, Author, and Anonymous Former Wyndham Employee. “A Former Employee's Observations of Wyndham Timeshare Practices.” 13 Nov. 2017. 30


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which have the effect of inducing that party into signing the contract. There are many of these fraudulent activities that should and would fall under the deceptive trade practice laws for which timeshare companies should be held accountable. It is important that clients and future clients are made aware of these potential risks. These deceptive and fraudulent practices are prevalent in all aspects of the timeshare industry. From sales tactics to perpetuity clauses to unregulated maintenance costs and credit risks, there is a potential for devastating consequences to timeshare owners and their families. Timeshare fraud should be a civil law violation and should invalidate the contract of those clients intentionally deceived or cheated by timeshare companies. Many original timeshare clients are passing away and only now are their descendants realizing the debt obligations they have inherited. It is important for prospective buyers and current timeshare owners to understand the growing risks these investments pose to themselves and their heirs. Timeshare investment should be regarded as a liability, not an asset. **If you believe you have been a victim of a timeshare scam and incurred financial losses, the U.S. District Attorney’s office recommends that you file a report with the Federal Bureau of Investigations (FBI)31 immediately.

“A Brief Description of the Federal Criminal Justice Process.� FBI, FBI, 17 June 2016, www.fbi.gov/resources/victim-assistance/a-brief-description-of-the-federalcriminal-justice-process. 31


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MATAL V. TAM: THE TRIUMPH OF FREE SPEECH SAPNA RAMPERSAUD STAFF WRITER

Defendant Simon Tam, the lead singer of a rock band called “The Slants,” filed a case against the United States Patent and Trademark Office after the organization refused to trademark the name of his band. This article evaluates the arguments and voices against the band name in the Matal v. Tam case, seeking to understand in what ways the United States courts and population are seeking to curtail free speech through the patent office.

On June 19th, the Supreme Court reaffirmed free speech in Matal v. Tam (2017), once again holding that the government isn’t empowered to censor “offensive” speech. This ruling reasserted free speech rights in the trademark and patent world to the dismay of many people. The defendant, Simon Tam, is the lead singer of a rock band called “The Slants.” Their name was chosen to “reclaim” the racial slur which, according to them,1 refers to the stereotype that all Asians have slanted eyes, and give it a new meaning such as their “slant in life” or their “perspective of what it’s like to be Asian Americans in this country, especially Asian Americans in the music industry.” The name was not allowed to be trademarked by the United States Patent and Trademark Office (USPTO) under the direction of Obama-appointed Michelle Lee (who resigned a few days before the case was decided and was replaced by Joseph Matal). The Eugene Volokh, "Supreme Court unanimously reaffirms: There is no ‘hate speech’ exception to the First Amendment," The Washington Post, June 19, 2017, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/19/supremecourt-unanimously-reaffirms-there-is-no-hate-speech-exception-to-the-firstamendment/?utm_term=.1e8aa980d84a. 1


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USPTO’s basis for the case, as expressed in their petition for a writ of certiorari, was that Section 2(a) of the Lanham Act, 15 U.S.C. 1052(a) indicates that no trademark may be registered if it “[c]onsists of or comprises… matter which may disparage… persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The registration of the term “The Slants” was refused “on the ground that the mark is disparaging to persons of Asian ancestry” and that “Asian individuals and groups had specifically objected to respondent’s use of the term as the name for his band.” Finally, they concluded that the “PTO’s refusal to register the mark does not violate the First Amendment because the denial of registration does not suppress speech or proscribe conduct, but simply prevents the respondent from calling upon the resources of the federal government to assist him in enforcing his rights in [The Slants].” On their side were several individuals and groups that were equally against free speech rights. Of the several amici curiae briefs filed, four supported the USPTO’s decision to censor free speech. First was Amanda Blackhorse, a social worker, member of the Navajo Nation, and the woman who brought about the case against2 the Washington Redskins to cancel the registration of their name since it allegedly violated the aforementioned law. She finds it to be “disparaging to a substantial composite of 5 Native Americans.” In this case, she submitted an amicus curiae brief that reasserted her stance on trademarking “ethnic slurs.” She stated that the “disparagement provision of Section 2(a) is not void for vagueness under the Due Process Clause.” She maintains that this terms contains “understood words” and demonstrates that a “mark is not eligible for registration if it ‘may disparage’” (emphasis added). In other words, she argues that there need not be any proof that an individual or group was actually disparaged or that there was an intent to disparage in order to ban a trademark. This argument posits that no trademark can be registered if someone, somewhere could possibly be offended (and today, prospects for this are all too common). Additionally, in this case, 2

Pro-Football, Inc. v. Amanda Blackhorse, et al.


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intent to disparage should be taken into consideration given the fact that the band adopted the name to disprove the stereotype which is the exact opposite of disparagement. The second group to file an amicus curiae brief in support of the USPTO was a group of Native Americans known as the Native Americans Organizations. Their interest was also in the implications of the case’s decision on the Redskins trademark cancellation. In the brief, they held that trademarks should be considered commercial speech and therefore a regulation of such speech is only justifiable and lawful if the regulation passes the Central Hudson test. The Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) case established a four-prong test that must be entirely satisfied to justify commercial speech regulation. I agree with the Native American Organizations that this regulation on The Slants’ trademark registration satisfies two prongs: (1) the speech that was regulated was protected by the First Amendment in that it was lawful and not misleading, and (3) the USPTO’s refusal to grant the trademark’s registration on the basis of it being disparaging does advance that interest. However, where we diverge is on the second and fourth prongs that the Native American groups use to justify the USPTO’s justification for regulating commercial speech. The second states that there should be a substantial government interest, yet I do not agree that preventing commercial speech from disparaging people is a legitimate government interest. It isn’t a federal concern to regulate “offensive” speech. The fourth prong states that such regulation must not be more extensive than necessary to serve that interest. Whereas the Native American Organizations contend that the refusal to register the mark was not excessive, I find that it was not the least-restrictive means considering that the USPTO’s regulation’s target of subjectively-defined “offensive” speech resulted in a violation of the First Amendment. Likewise, the Korematsu Center for Law and Equality filed an amicus curiae brief as well. Their argument was that “trademarks… propose a commercial transaction” and therefore “Congress has authority to regulate the trademark registration system.” Further, they argue that a “disparaging” trademark could go so far as to “discourage[e] customers from full market


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participation” and have a “depressing effect on the economy.” This concept is a stretch, yet the group continues with their far-fetched argument and says that this mark “may be debilitating for those who remember life in American internment camps during World War II.” That is to say that by registering the mark “The Slants,” Asian Americans will not only be discouraged from participating in economic life, but they’ll be forced to remember days in internment camps more than 70 years ago. Even if this mark may hurt someone’s feelings, it doesn’t disallow them purchasing goods and services in the same way that, as the group pointed out in their brief, “Whites Only” or “No Negroes Allowed” signs did in the Jim Crow Era. Finally, an amicus curiae brief was written by a group of law professors. They disputed the court’s consideration of the trademark in a viewpoint-based, rather than content-based, manner. In other words, they feel as though the registration of the mark should depend solely on the content of the name as opposed to the viewpoint, ideology, or intent of the mark’s owner. They justify this by saying that “disparagement [is] a concept that could apply to anyone” and therefore they should be “characterized as content-based rather than viewpoint-based.” However, this group doesn’t realize that trademarks are dealt with on a case-by-case basis and therefore the viewpoint of the owner, particularly important in this case seeing as the “ethnic slur” was used for the purposes of cultural reappropriation, should matter. This group of individuals consists of law professors such as Berkeley Center for Law and Technology Law Professor Sonia Katyal who “works on issues relating to intellectual property and indigenous people’s rights”; Case Western Reserve University Law Professor Raymond Ku who was a Leonard Boudin First Amendment Fellow in the Arthur Garfield Hays Civil Liberties Program; Louisiana State University Paul M. Herbert Law Center Law Professor Lee Ann Lockridge who focuses on the “intersection of both copyright and trademark rights with the First Amendment right of free speech”; and Georgetown University Law Center Law Professor Rebecca Tushnet whose “work currently focuses on the relationship between the First Amendment and false advertising law.”


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The New York Times also supported3 the USPTO’s decision4 to not register the mark because they contended that “the Trademark Trial and Appeal Board was right in ruling on Wednesday that six trademarks granted to the owners of the Washington Redskins football team should be cancelled because the name is disparaging to many American Indians.” Likewise, they believe that “this current case [Matal v. Tam], which involves younger plaintiffs, might have a better shot at succeeding.” Yahoo, too, concurs with the New York Times’ belief that certain trademarks like the Redskins and The Slants “so clearly [offend] so many people.” They posted an article5 that encouraged people to “speak out, protest, boycott, and otherwise demonstrate their opposition” to the names of the Redskins and The Slants. Their concern was that numerous other “disparaging marks” would seek trademark registration and further marginalize certain groups. They acknowledge that Simon Tam “says he chose the band’s name in part to reclaim a slur historically used to keep Asian-Americans down. In doing so, he followed in the footsteps of groups like Queen, NWA, and Pussy Riot—artists that attempted to take terms long used to stigmatize marginalized groups, reappropriate them, defang them, and imbue them with new meaning.” However, like so many people today, Yahoo, the New York Times, and the amici curiae writers all failed to prioritize free speech over people’s “feelings” potentially getting hurt. That a fundamental and intensely valued right is willingly violated for the “greater good,” i.e. making sure nobody feels marginalized or triggered by a simple band name – one that is, frankly speaking, not as bad as some other trademarks – is preposterous. Likewise, language has an immense power to be empowering and the The Editorial Board, “Free Speech at the Supreme Court,” The New York Times, June 19, 2017, https://www.nytimes.com/2017/06/19/opinion/supreme-court-freespeech-gerrymandering.html. 4 The Editorial Board, “Slurs Don’t Deserve Trademark Protection,” The New York Times, June 18, 2014, https://www.nytimes.com/2014/06/19/opinion/slurs-dontdeserve-trademark-protection.html?mtrref=www.nytimes.com&assetType=opinion. 5 Alexandra J. Roberts, “The US trademark office can now expect a flood of offensive name applications,” Yahoo Finance, June 20, 2017, https://finance.yahoo.com/news/us-trademark-office-can-now-expect-flood-offensivename-applications-165957375.html. 3


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Slants, by choosing such a name for their band, reappropriated a term that was once used in a derogatory way – similar to the way that the word “queer” has been transformed – and turned it into something revisionary. The Supreme Court’s decision was a landmark one that will hopefully remind people what values truly matter at a national level. As Justice Alito rightfully stated in the Court’s opinion, “[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”


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RIGHT TO BE FORGOTTEN SEOKMIN OH STAFF WRITER

In the recent Spanish case of Google Spain v. AEPD and Mario Costeja González, the court upheld the claim of Costeja stating that he had a ‘right to be forgotten.’ This right, as outlined in the case, allows people to de-index ‘irrelevant, outdated, or otherwise objectionable’ content from their name online. This standard is quite subjective and dangerous. Many requests for delinking as of now have been from doctors seeking to remove negative patient reviews from their profiles. This article evaluates the ramifications of this new law, and how it might affect the populous in the near future.

Our names are more accessible than ever before. Given the power of our technology, we can look up people we have never met online and access their basic information, photos, or even some private information. With the advent of social media, even photos or information that we do not want to be shared can be viewed for the public. For instance, our closest friends can share certain photos, and due to the nature of the Internet, once it is online, it is there permanently and viewable for everyone. In essence, we never had such a powerful platform that allowed individuals to peruse information about others with just our name, and these individuals range from our possible employers, landlords, friends, or even complete strangers. However, in Spain, an interesting ruling- Google Spain v AEPD and Mario Costeja González- has been passed that tries to delink certain information from our name and is having ramifying effects around the world. Specifically, this case involved Costeja,1 who complained that when his name was “EU Backs ‘right to be forgotten’ in Google case,” BBC News, May 14, 2014, http://www.bbc.com/news/world-europe-27388289. 1


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searched, an article from sixteen years ago was found, explaining how he had to sell his property to pay for the debt. He argued that since this article was no longer relevant and was resolved, the website should be de-indexed from his name. In other words, the article itself would not be deleted, but when his name was searched, the article would not show up as it is no longer “associated” with his name. The Court in Spain upheld his claim, arguing that Google should remove “irrelevant, outdated, or otherwise objectionable”2 that has to do with the individual. This has started a trend known as the “right to be forgotten,” where people should have the right to deindex certain articles or information from their names online. While this right to be forgotten seems to add additional layers to our privacy, it comes at a dangerous cost. Due to the broad nature of the right to be forgotten, this can very well limit necessary information that may be online. For instance, who gets to decide what is irrelevant, outdated, or even objectionable? In the status quo, Google holds the power to decide this as it is their private enterprise; however, this should still make this wary given that there is another separate entity that dictates what information should be posted. Even though Google has been cautious, removing approximately 43 percent3 of the requested de-indexing, it is still questionable as to what exactly was taken down. In addition, because the basis for deindexing is its irrelevancy, age, or objectionability, we can safely say that the standard is quite subjective and not concrete. Take into consideration that what may be irrelevant to some may be important to others. If a rich CEO wanted to hide some information from the past (whether it be his bankruptcy or certain practices that may have been questionable), he may invoke his right to be forgotten; however, this is certainly something that others may find crucial. In fact, one of the first Eric Goldman, “Primer on European Union’s Right To Be Forgotten (Excerpt from My Internet Law Casebook) + Bonus Linkwrap,” Technology & Marketing Law Blog, August 21, 2014, http://blog.ericgoldman.org/archives/2014/08/primer-oneuropean-unions-right-to-be-forgotten-excerpt-from-my-internet-law-casebookbonus-linkwrap.htm. 3 “Search removals under European privacy law,” Google Transparency Report, https://transparencyreport.google.com/eu-privacy/overview. 2


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requests4 were from doctors who wanted to remove patient’s negative reviews and an ex-politician seeking reelection who wanted to de index himself from reports of possessing child abuse images. On top of that, the individuals who will most likely benefit the most are the rich. If the right to be forgotten becomes more and more stringent, Google may be more inclined to remove searches preemptively, especially because the rich have the arsenal to bring powerful legal cases against them.5 Given that the right to be forgotten was something that originated in Spain, what does it mean for the rest of the world? To begin, it is important to recognize that this particular right has been a nightmare for implementation due to different countries having varying degrees of free speech. Interestingly, since de-indexing laws are not globalized for this very reason, some courts in certain countries such as France is allegedly ruling6 Google to make sure that the right to be forgotten is upheld everywhere. This is problematic given that information is hidden to some and not others, and due to the fact that monitoring domains can be challenging, this legal action is extremely hard to enforce, especially in the global community. Specifically, in the United States, for better or for worse, the right to be forgotten is still a bit farther off. We have a looser restriction on free speech, and hence, as Christopher Bavitz, professor of law at Harvard Law School, notes, such regulations that we see in Europe seems “nearly impossible” to be implemented here in United States. Still, the right to be forgotten has had an effect. There are still advocacy groups7 that are pushing to legislate policies that will ultimately enhance our privacy online. While it may be a goal that may be difficult to Mark Stephens, “Only the powerful will benefit from the ‘right to be forgotten,’” The Guardian, May 18, 2014, https://www.theguardian.com/commentisfree/2014/may/18/powerful-benefit-rightto-be-forgotten. 5 Ibid. 6 Karin Deutsch-Karlekar, “Don’t Forget Free Expression In The Fight For Privacy: The Implications Of Europe’s “Right To Be Forgotten” Law For Free Expression,” The Huffington Post, April 4, 2017, https://www.huffingtonpost.com/entry/dontforget-free-expression-in-the-fight-for-privacy_us_58e3d337e4b09deecf0e1aae. 7 Lyle Denniston, “Constitution Check: Is there, or should there be, a right to be forgotten?” Constitution Daily, September 15, 2015, https://constitutioncenter.org/blog/constitution-check-is-there-or-should-there-be-aright-to-be-forgotten. 4


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attain, it is still certainly not impossible. Furthermore, there have been variation of laws to achieve a balance between privacy and wealth of knowledge. For example, California has enacted policies that allow right to be forgotten specifically to minors,8 given that they have a tendency to make more irrational choices and are not fully adults yet, who are able to be more responsible. In the end, it may be almost impossible to draw the line between our right to privacy and our right to know, but our laws and discourse are being pushed in a way that seeks to reconcile these two sides. What is important to remember, however, is that we should always be wary of this tradeoff, and recognize that there is always room for abuse.

Rahul Kapoor and W. Reece Hirsch, “Get to Know California’s ‘Online Eraser’ Law,” Morgan Lewis, July 12, 2016, https://www.morganlewis.com/blogs/sourcingatmorganlewis/2016/07/get-to-knowcalifornias-online-eraser-law. 8


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TAMING THE DIGITAL BEAST: HOW DO WE CONTROL ARTIFICIAL INTELLIGENCE? PATRICK CESPEDES STAFF WRITER

From machine learning thermostats to digital assistants, artificial intelligence continues to play a larger and larger role in society every day. This essay will investigate whether we should worry about these machines becoming malicious. The essay will begin by looking at the differing forms of artificial intelligence, evaluating the common misconception of human attributes. It will then look at the ways in which we can keep this technology from growing out of the control of human oversight.

David Gerhard, a schoolteacher from Southern California, awakens from a fitful sleep just before dawn on a Monday in midOctober, jolted by a recurring nightmare. Like something out of a low-budget Sci-Fi film, his dreams are haunted by evil robots who outsmart and subjugate their human creators before proceeding to take over the world. Still reeling from the episode, David asks Siri to put on some calming music while he goes through the motions of his morning routine. Nest, a learning thermostat, keeps the temperature at a comfortable level as he reaches for his towel after a shower. Before heading to work in his new driverless car, David confirms his appointments for the day with Alexa, his digital assistant. Could these “smart� technologies be Freddy Krueger-like manifestations of his night terrors, lurking about in the shadows, waiting for the right moment to strike with their razor-like malware? Should David be worried? In short: probably not, but there may be cause for concern yet. There is much controversy and misinformation surrounding the notion of artificial intelligence today. My aim here is to set the


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record straight. What is artificial intelligence? How might we benefit from it? And where does regulation, public policy, and the law fit into the picture? By answering these questions, I wish to impart a qualified optimism about the future of artificial intelligence that will hopefully allow David to rest a little easier. I want to start off by defining artificial intelligence. According to Scott Kuindersma, Assistant Professor of Engineering and Computer Science at the Harvard School of Engineering and Applied Sciences, artificial intelligence is the design of computer algorithms that behave rationally with respect to a desired outcome (i.e. that optimally achieve their goal).1 This debunks one of the most commonly held misconceptions regarding the technology today—namely, that it must always take the form of robots with distinctly human characteristics. As clarified by Max Tegmark of the Future of Life Institute, artificial intelligence “can encompass anything from Google’s search algorithms to IBM’s Watson to autonomous weapons,” and usually sticks to a specific narrow task, such as face recognition, as opposed to generalized functions, like planning, sensing, and making moral judgments.2 Understanding artificial intelligence and the forms that it can take is critical to discerning its substantial benefits. For one, artificial intelligence is consistently improving nearly every aspect of the human experience, from communication, to administrative efficiency, to lifespan. Deep learning—that is, the recognition of patterns in sets of data through repeated trials— for instance, is being applied to medicine to make diagnoses more accurate by helping identify malignant tumors before they spread.3 Stories like this are an almost daily occurrence in our modern society. Right now, the opportunities for innovation are endless. Contrary to a reading of Robert Gordon’s The Rise and Fall of U.S. Economic Growth, I predict that artificial intelligence—which is still very much in its early stages and evolving at an incredibly rapid pace—will soon yield significant Kuindersma, Scott. “Artificial Intelligence.” Lecture, ECON1000A at Harvard University, Cambridge, MA, October 10, 2017. 2 Tegmark, Max. "Benefits & Risks of Artificial Intelligence." Future of Life Institute. Accessed November 11, 2017. 3 "Automation and Anxiety." The Economist. June 25, 2016. Accessed November 11, 2017. 1


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increases in labor productivity and produce lasting effects on the full range of human experience. This is not to say that technological progress will make for a world wherein the average work week is fifteen hours and our biggest problem is how to spend our idle time, as suggested by Keynes in “Economic Possibilities for Our Grandchildren.â€?4 However, if recent innovation is any indication of what the future holds, artificial intelligence, handled properly, will continue to increase living standards at a growing rate. But is artificial intelligence progressing a little too quickly? Will this Frankenstein-like monster soon outgrow our control? Not if we take the necessary precautions. There are two ways for artificial intelligence to become dangerous: (1) the AI is programmed to do something devastating (e.g. autonomous weaponry); or (2) the AI is programmed to do something beneficial, but it develops a destructive method for achieving its goal.5 This is where public policy comes into play. Governments and universities should take a more involved role in the developmental process of artificial intelligence, providing key oversight, safety research, and input to future projects whenever possible. Given that the field of artificial intelligence is still very much the Wild West due to it being in the infancy stage, restrictions and regulations on what kinds of technology can be produced and where it can be deployed may also be appropriate going forward, especially vis-Ă -vis drones and military equipment, though it is difficult to say exactly what they might look like without delving into specifics; they might come at the local level, like municipalities stipulating where you can and cannot fly a drone; at the national level, such as the government forbidding social media sites and search engines from selling user data (more on this later); or at the international level, for instance appending the laws of war to preempt smart bombs from being

Keynes downplayed the desire to consume more relative to others and ignored income inequality; however, this is irrelevant to the point I am trying to make: though he was wrong about the shorter work week, he was right about rising living standards over time (if anything, he understated how much living standards would rise over time). 5 Tegmark, Max. "Benefits & Risks of Artificial Intelligence." Future of Life Institute. Accessed November 11, 2017. 4


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deployed in areas highly populated by innocent civilians in order to reduce collateral. It is important to note that the precedents and procedures that we establish now will guide subsequent developments. We cannot stop the expansion of artificial intelligence nor do we want to end up in a Forbidden Planet-esque apocalyptic scenario, risking the destruction of the progress we have made as a civilization because we can no longer control our technology. Taking appropriate preventative measures is of the utmost importance and ought to be a key goal of public policy going forward. Okay, so maybe you aren’t so worried about Terminator-like cyborgs wreaking mayhem on humanity. Perhaps your concern lies with a different kind of villain, one less flashy but no less insidious: technological unemployment. Coined by Keynes in the same article referenced above, technological unemployment expresses a fundamental fear about whether workers will be displaced by machines. While it is true that the labor market will likely endure a disruptive transitional period as artificial intelligence continues to evolve and the computer automation process accelerates, most economists agree that mass unemployment is a very unlikely scenario because technology simultaneously substitutes and complements labor.6 However, as underscored by David Autor—renowned American economist and professor of economics at the Massachusetts Institute of Technology—low education, manual tasks and middle-skill, routine jobs are most threatened by the growth and proliferation of artificial intelligence, so keeping up with higher educational and job training demands and addressing unequal income distributions must be of significant importance to the government going forward, and ought to be reflected in public policy.7

"Automation and Anxiety." The Economist. June 25, 2016. Accessed November 11, 2017; Brynjolfsson, Erik, and McAfee, Andrew, Race Against the Machine, 2011; David Autor, “Why Are There Still So Many Jobs? The History and Future of Workplace Automation”, 2015. 7 David Autor, “Why Are There Still So Many Jobs? The History and Future of Workplace Automation”, 2015. 6


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But what of the ethical considerations of AI?8 There are certain moral considerations that accompany technological advances which must be addressed through law and diplomacy. Whether it be Facebook influencing the results of an election by manipulating public opinion through targeted advertisements, search engines selling user data to other companies, or the possibility of governments waging cyber warfare against one another using increasingly advanced algorithmic attacks, the legal system and our public representatives have the responsibility of determining how these innovative technologies impact our lives.9 We need to pay much closer attention to the important ethical issues of our time, starting with the influence of dominating mediums of communication like Facebook and Twitter on the political system which undergirds our sacred democracy, as well as the ability to cause harm through the internet. Like Henry David Thoreau in Walden, I am simultaneously excited by the opportunities presented by artificial intelligence and unsettled by the cheapening of life that could result if not handled properly. I think we can be relatively optimistic about the future of artificial intelligence. But this is no license for complacency. Proactivity in regulation is a must if we are to reap the full benefits of this great human endeavor. As Max Tegmark said, “our civilization will flourish as long as we win the race between the growing power of technology and the wisdom with which we manage it.”10

Here I am dealing with ethical considerations head-on. Most of the concerns that I have expressed thus far have been ethical in nature, but indirectly so. 9 Zittrain, Jonathan, on Information Fiduciaries: “Facebook Could Decide an Election Without Anyone Ever Finding Out,” June 2014; “‘Netwar’: The Unwelcome Militarization of the Internet Has Arrived,” Bulletin of the Atomic Scientists, August 2017. 10 Tegmark, Max. "Benefits & Risks of Artificial Intelligence." Future of Life Institute. Accessed November 11, 2017. 8


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HOW ENVIRONMENTAL POLICY HAS FAILED TO SAVE THE NORTH ATLANTIC RIGHT WHALE SABRINA DEVEREAUX*

This essay focuses on the North Atlantic right whale's interactions with United States commercial fisheries under the Endangered Species Act and Marine Mammal Protection Act. The continued issuance of incidental take permits will likely result in the extinction of the species within the next several decades.

Introduction The North Atlantic right whale is a species that, considering all factors, should not be endangered. The large, elusive creatures rarely come into contact with humans, they are protected under two of the strongest federal environmental statutes in the United States, and countless conservation groups fight on their behalf. Yet, the North Atlantic right whale hovers on the brink of extinction, with less than five hundred individuals left in the wild and a swiftly declining population. The greatest threat to the animal’s future comes from commercial fisheries. This paper examines how the United States’ environmental laws have allowed the decline of the North Atlantic right whale. I begin with a brief introduction to the species’ history and biology. I then proceed with an analysis of the major threats to the species, particularly commercial gear entanglements. I then summarize relevant legislation, and assess its adequacy in resolving threats to the North Atlantic right whale. Lastly, I conclude with possible improvements to current regulation. A. History

This piece was submitted to the Harvard College Law Review by Sabrina Devereaux, class of 2018. *


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Commercial hunting of the North Atlantic right whale began as early as the 11th century AD. Basque hunters located near modern-day Spain and France pursued a slow-swimming whale they called the sardako.1 In the mid-1500s, coastal nations throughout Europe joined the commercial whaling industry. The sardako was referred to as the “right whale” by English-speakers, because it was considered the “right” whale to kill.2 The right whale prefers an inshore habitat and has a thick layer of blubber that causes the whale to float even after it is killed, making the whale relatively easy to collect by hunters. These characteristics led to a frenzy of right whale captures throughout the 19th century. Their blubber could be rendered into oil while meat, guts, and bones were ground into fertilizer.3 Most early hunting was concentrated in northern Europe, focusing on the East Atlantic population of the right whale. Between the 1880s and 1900s, roughly two dozen whaling stations were built along the feeding range of this population.4 Steam powered catcher boats with bomb lances captured the last of the straggling population, and the final member of the North Atlantic right whale’s eastern population died around 1970.5 Hunting of the western population continued even after the eastern population was no longer commercially viable. Pelagic and artisanal shore whalers continued to catch right whales off of the coast of North America up until the early 1920s.6 When targeted hunting of the species was finally banned in 1935, there were likely less than 100 individuals left.7 B. Biology and Threats Right whales are loved in part due to their distinct appearance. In order to accommodate the species’ massive baleen plates, the whale possesses a large, curving jaw that takes up the majority of the head. Rough patches known as callosities can be seen along the jaw and head, appearing white due to populations

“History.” Ibid. 3 Laist, North Atlantic Right Whales. Chapter 15 4 Ibid. 5 Ibid. 6 Ibid. 7 Ibid. 1 2


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of whale lice that colonize the rough skin.8 The North Atlantic right whale can weigh up to 79 tons and grow to be 15 meters long.9 They are also estimated to live for over 70 years. The North Atlantic right whale is one of a number of species of right whales. All are baleen whales, utilizing long strips of keratin to catch their primary prey, microscopic zooplankton called copepods. North Atlantic right whales are found along the eastern coast of the United States, ranging from the southeast coast of Florida to the Bay of Fundy and Scotian Shelf in southern Canada. The whales prefer to frequent shallow, coastal waters, and their migration patterns tend to correlate with the distribution of their prey. The whales tend to winter in lower latitudes, where females will calve.10 The whales migrate north during the summer in order to feed. Since the demise of commercial whaling, the population of North Atlantic right whales appears to have slowly grown over time. In 2011, the western North Atlantic population numbered at least 465 individual whales.11 By 2015, this number increased to 500 individuals.12 This slow population growth rate is not constant, and a significant number of mortality events continue to this day. Though commercial whaling has stopped, a number of threats to the species remain. i. Vessel Collisions Due to their size and slow swimming speeds, North Atlantic right whales sometimes are hit by large ships and vessels. There are two types of ship-strike mortalities: sharp trauma or blunt trauma. Sharp trauma occurs when animals swimming near the surface are sliced by propeller blades.13 Blunt trauma occurs when a less sharp part of the ship (bow, keel, or others) hits a whale, shattering its vertebra or skull.14 Both types of trauma tend to result in immediate death.15 In the decades following the international ban on whaling, vessel strikes accounted for the

“North Atlantic Right Whales (Eubalaena Glacialis).” Ibid. 10 Ibid. 11 Ibid. 12 Laist, North Atlantic Right Whales. Chapter 15 13 Moore, “Current Issues Facing North Atlantic Right Whales and Stakeholders.” 14 Ibid. 15 Ibid. 8 9


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majority of North Atlantic right whale mortalities.16 However, due to the implementation of education programs, altered shipping routes, and mandatory and voluntary speed reductions, the number of mortalities caused by ship-strikes has greatly decreased. ii. Commercial Gear Entanglements Currently, the most common cause of observed right whale mortalities is commercial gear entanglement.17 In fact, 83% of photographed individuals appear to have been entangled at least once, with 25% of the population acquiring new scars from entanglements each year.18 Though it is often difficult to identify the gears that caused entanglement, most that can be identified are traced to gillnet and trap fisheries, primarily lobster pot/trap fisheries.19 Right whales sometimes swim into the lines connecting the traps on the sea floor to floating buoys, and will tend to thrash following contact with lines or nets. This thrashing causes the whale to become further entangled, with lines implanting in the individual’s baleen or wrapping around appendages. iii. Habitat Degradation/Contaminants As is true for many species, the degradation of critical habitat represents a significant threat to the North Atlantic right whale. The fact that this species is migratory and lives in the ocean complicates habitat protection. Overfishing, changes in sea surface temperature, and pollution can all affect the critical habitat of right whales, even if the actions themselves take place elsewhere. iv. Climate Change Climate change can lead to differing sea surface temperatures, which have been found to alter the distribution of zooplankton.20 Experts fear that this shift in prey distribution will result in changes to the North Atlantic right whale’s migratory range. Laist, North Atlantic Right Whales. Chapter 20 Moore, “Current Issues Facing North Atlantic Right Whales and Stakeholders.” 18 Laist, North Atlantic Right Whales. Chapter 20 19 Ibid. 20 Southward, Hawkins, and Burrows, “Seventy Years’ Observations of Changes in Distribution and Abundance of Zooplankton and Intertidal Organisms in the Western English Channel in Relation to Rising Sea Temperature.” 16 17


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v. Noise and Disturbance from Whale Watching Scientists worry that activities such as the use of sonar, underwater noise, or whale watching activities may cause discomfort to North Atlantic right whales. Currently, they do not appear to pose a significant threat to the population relative to other anthropogenic actions. Characteristics of Ecological Injury This paper focuses on the threat posed to North Atlantic Right Whales by commercial fisheries. This particular injury was focused on for a number of reasons. For one, the threat to North Atlantic right whales by commercial whaling has effectively been eliminated due to a number of international conventions banning the practice, including the 1949 International Convention for the Regulation of Whaling. Mandatory vessel speed reductions in the critical habitat of North Atlantic right whales have also greatly reduced the threat posed by vessel collisions.21 Secondly, relative to the damages caused by sonar or contaminants, fishing entanglements pose a greater threat to the remaining North Atlantic right whale population. In fact, over 58% of reported deaths since 2009 have been due to fishing gear entanglements.22 Lastly, the whales’ interaction with commercial fisheries perfectly embodies the criteria of an ecological injury, as presented in Lazarus (2000).23 A. Irreversible, Catastrophic, and Continuing Injury Commercial entanglements have the potential to push the species’ dwindling population towards extinction.24 The complete loss of the North Atlantic Right Whale is an irreversible outcome, as the northern population is genetically and reproductively distinct from other species of right whales. Those who believe in intrinsic value would argue that the extinction of any species is a catastrophic loss regardless of economic costs and benefits. Still, the North Atlantic right whale has been found to produce immense ecosystem services that would disappear with the Laist, North Atlantic Right Whales. Chapter 20 Pennisi, “North Atlantic Right Whale Faces Extinction.” Lazarus, “Restoring What’s Environmental about Environmental Law in the Supreme Court.” 24 Greene and Pershing, “Climate and the Conservation Biology of North Atlantic Right Whales.” 21 22 23


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extinction of the species, resulting in potentially catastrophic losses. This particular species is an active participant in what is known as the “whale pump.” Through feeding near the ocean floor and defecating near the surface, whales help to cycle essential nutrients from the lower water column to surface waters, where they can be used in primary production.25 With the global population decline in whales, this natural upwelling has greatly decreased, potentially reducing global ocean productivity.26 The implications of a decline in primary productivity within the North Atlantic right whale’s range are enormous. Photosynthesizing phytoplankton form the foundation of a massive food web in the North Atlantic that includes many species of commercial fish. Some scientists also believe that whales play a role in carbon sequestration, since their immense carcasses sink to the ocean floor after death.27 Though slight, whales can in fact be viewed as a net carbon sink, reducing the amount of greenhouse gases in the atmosphere. Commercial gear entanglements can also be characterized as a continuing injury. Not only have they consistently contributed to right whale mortality, but the damage has increased over time. Each new mortality shrinks the breeding population, reducing the likelihood of recovery. Under the birth and mortality rates of the late 1990s, scientists predicted that the species was almost guaranteed to go extinct within 200 years.28 Increasing mortality rates will push the species even closer to extinction. B. Physically Distant Injury Commercial fishing gear entanglements can also be considered a physically distant injury according to Lazarus’s definition. As discussed above, North Atlantic right whales are a migrating species, frequenting waters ranging from the Southeastern coast of Florida to the Bay of Fundy in Canada. Therefore, injury of a whale in one area of its range removes the individual from ecosystems all along the coast. The injury itself is also not geographically constrained, as entanglements rarely Roman et al., “Whales as Marine Ecosystem Engineers.” Ibid. Pershing et al., “The Impact of Whaling on the Ocean Carbon Cycle.” 28 Hal Caswell, Masami Fujiwara, and Solange Brault, “Declining Survival Probability Threatens the North Atlantic Right Whale.” 25 26 27


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cause instantaneous mortality. Often, the gear is dragged by the whale for some time, either resulting in scarring or death.29 The whale’s health and behavior is impacted far beyond the precise location where gear was encountered. C. Temporally Distant Injury Entanglements result in a number of consequences for the long-term health of injured individuals. While entangled, whales will eat less, swim slower, and have a harder time breeding.30 This altered behavior changes the species’ role within its ecosystem. Extinction can also be viewed as an example of a temporally distant injury. When a species is removed from an ecosystem, it can result in a gradual ecosystem shift as former predators switch to new prey items, or prey species change in abundance and diet. This phenomenon has been observed before following population declines of whales, with one study blaming decreases in whale populations for the eventual endangerment of several other marine mammal species.31 These shifts can take decades to manifest, making the removal of a species a temporally distant injury. D. Uncertainty and Risk The North Atlantic right whale’s interactions with commercial fishing gear is characterized by deep uncertainty, regarding both the nature of the interaction and its consequences. For one, North Atlantic right whales are notoriously elusive creatures, spending the majority of their time beneath water. It is difficult to track their underwater behavior, so scientists can only postulate how individuals get caught in gear. Population estimates are characterized by great uncertainty, as there is little record of the species’ pre-whaling population size.32 Lastly, the number of deaths caused by entanglements is also uncertain. While a healthy North Atlantic right whale will float when killed, a malnourished whale will tend to sink to the bottom. Since entanglements have been associated with decreased feeding, Kraus, “North Atlantic Right Whales in Crisis.” Cupka and Murphy, “North Atlantic Right Whale.” A. M. Springer et al., “Sequential Megafaunal Collapse in the North Pacific Ocean.” 32 Monsarrat et al., “A Spatially Explicit Estimate of the Prewhaling Abundance of the Endangered North Atlantic Right Whale.” 29 30 31


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many more whales may have died and sunken without acknowledgement, leading to underestimates of entanglement mortalities.33 Other environmental phenomena contribute to the uncertainty of threats to the North Atlantic right whale. Climate change, for example, may result in changes in the migration patterns, range, and calving rates of the species.34 Climate change itself is characterized by a high degree of uncertainty.35 Its impacts on North Atlantic right whales are therefore equally uncertain. Lazarus also refers to the psychological harm caused to human populations by an impending and uncertain risk.36 Though the loss of a species rarely manifests itself in widespread trauma, extinction can have profound impacts on local culture and psyche.37 However, these impacts are still poorly understood, and therefore the extent to which the loss of the North Atlantic right whale can be considered a risk remains unknown. E. Multiple Causes As previously discussed, there are numerous threats to the population of North Atlantic Right Whales, including ship strikes, gear entanglements, habitat degradation, loss of prey, and natural predation. Even under a restricted analysis of gear entanglements, it becomes clear that the threat arises from multiple gear types, industries, and locales. Lobster pots, crab traps, gill nets, and purse seines pose the greatest risk to right whales.38 These gear types are used at various depths in the water column, and their prevalence varies geographically. In this way, the contributors to right whale mortalities are highly diverse. F. Noneconomic, Nonhuman Character Conservation of large whales sometimes relies on the species’ ecosystem services or economic value. However, because the North Atlantic right whale is large, elusive, and interacts little Kraus, “North Atlantic Right Whales in Crisis.” Greene and Pershing, “Climate and the Conservation Biology of North Atlantic Right Whales.” 35 Stocker, Climate Change 2013. 36 Lazarus, “Restoring What’s Environmental about Environmental Law in the Supreme Court.” 37 Van Dooren, Flight Ways. 38 Cupka and Murphy, “North Atlantic Right Whale.” 33 34


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with human populations, arguments for their conservation are more often framed according to the species’ intrinsic value. The loss of the species and its effects on local ecosystems will be overwhelmingly noneconomic and nonhuman in character. Current Regulation A. Brief History The era of commercial whaling lasted from the 16th through the early 19th centuries and witnessed the decline of many of the world’s large whale species. The North Atlantic Right Whale was one of the species that suffered most, with its population so depleted by the end of the eighteenth century that right whales were no longer profitable to pursue.39 The collapse of the global economy corresponded to the biological collapse of several different whale populations, leading the international community to finally recognize the consequences of unsustainable harvesting.40 The 1931 Geneva Convention for the Regulation of Whaling was the world’s first regulatory attempt to prevent the decline of North Atlantic right whales, and was quickly followed by the 1937 Agreement for the Regulation of Whaling. Neither was particularly effective, since two of the world’s largest whaling countries at the time, Japan and the Soviet Union, did not sign the agreements.41 Since both agreements were concluded prior to the establishment of exclusive economic zones, both states were able to continue whaling operations within the United States’ coastal waters. Commercial threats to the North Atlantic right whale remained problematic. It was not until 1946 that the North Atlantic right whale was finally protected from commercial whaling by the International Convention for the Regulation of Whaling (ICRW). This particular piece of legislation aimed for “the proper conservation of whale stocks and … the orderly development of the whaling industry,” allowing for a continuation of whale hunting for certain species according to specific plans and with monitoring.42 The

Greene and Pershing, “Climate and the Conservation Biology of North Atlantic Right Whales.” 40 Fitzmaurice, “International Convention for the Regulation of Whaling.” 41 “North Atlantic Right Whales (Eubalaena Glacialis).” 42 Fitzmaurice, “International Convention for the Regulation of Whaling.” 39


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North Atlantic right whale was one of the included species for which commercial hunting was prohibited due to the state of its population at the time. The ban on whaling was eventually extended to all species in 1982, a moratorium which continues to this day.43 The United States ratified the ICRW in 1948. In addition to its international commitments, the United States has passed a number of domestic actions relevant to the North Atlantic right whale. The first was the Endangered Species Preservation Act of 1966, which provided the federal government with the ability to list native animal species as endangered. These listed species were granted limited protection, and the US Fish and Wildlife Service was granted the ability to acquire land to be protected as habitat for endangered species.44 In 1969, the title of the act was changed to the “Endangered Species Conservation Act,” and its protections were expanded to include species in danger of worldwide extinction. The importation and sale of any listed endangered species was banned within the United States. The Endangered Species Act of 1973 is the statute applied today, though significant amendments were made to the act in 1978, 1982, and 1988. In this version of the statute, Congress defined what it means to be “endangered” and “threatened.” All plants and invertebrates were made eligible for protection, and take prohibitions applied to all endangered species.45 The Act also requires agencies to use their authority to conserve listed species, and bans any federal action that could jeopardize a listed species or its critical habitat.46 The North Atlantic right whale was listed as endangered under the original Endangered Species Preservation Act in 1966, and has remained on the endangered species list in every subsequent version. Therefore, any federally authorized take of the species should be illegal, alongside threats to the species’ critical habitat. In 1972, Congress enacted the Marine Mammal Protection Act in order to prevent the further decline of vulnerable marine mammal populations. The Act establishes a complete moratorium Ibid. “A History of the Endangered Species Act of 1973.” “Endangered Species Act of 1973.” 46 “A History of the Endangered Species Act of 1973.” 43 44 45


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on the purposeful taking of marine mammals in US waters, including harassment.47 The Marine Mammal Protection Act is significant because it protects even non-threatened species of marine mammals. However, since the North Atlantic right whale has always been listed as endangered, the MMPA simply adds to existing protections for the species. B. The Endangered Species Act The Endangered Species Act charges two federal bodies with the management of endangered species. The US Fish and Wildlife Service, found under the Department of Interior, oversees the protection of terrestrial and freshwater endangered species, while the National Oceanic and Atmospheric Administration (NOAA), found under the Department of Commerce, manages the protection of marine species. Within NOAA is an office called NOAA Fisheries, also referred to as the National Marine Fisheries Service (NMFS), whose mission is “the stewardship of the nation’s ocean resources and their habitat.”48 Under Section 4 of the Endangered Species Act, the Secretary of Commerce must designate “any habitat of such species which is then considered to be critical habitat,” which includes specific areas containing features that are essential to the conservation of the species.49 NMFS designated critical habitat for the North Atlantic right whale in 1994, and later expanded their designation in 2016 following a lawsuit by the Center for Biological Diversity [see Figure 1].5051 The Endangered Species Act also requires the Department of Commerce (via NMFS) to implement recovery plans “for the conservation and survival of endangered species and threatened species.”52 These plans are required to include: 1. 2.

A description of site-specific management actions necessary to achieving the conservation and survival of the species, measurable criteria that can be used to determine when the species should be removed from the list, and

“Office of Protected Resources and the Marine Mammal Protection Act.” “Our Mission.” 49 “Endangered Species Act of 1973.” 50 “Saving the North Atlantic Right Whale.” 51 Goebel, “NOAA Expands Critical Habitat for Endangered North Atlantic Right Whales.” 52 “Endangered Species Act of 1973.” 47 48


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estimates of the time and cost required to carry out these measures.53

The first recovery plan for the North Atlantic right whale was released in December, 1991, and was subsequently revised in 2001 and 2004. The plan includes a number of measures to reduce right whale mortalities, the most effective being the implementation of vessel approach regulations, shipping routing measures, and the establishment of take reduction teams.54 Several of these measures pertain directly to commercial fishing gear entanglements. In August 1996, NMFS established the Atlantic Large Whale Take Reduction Team in order to address interactions with the Gulf of Main/mid-Atlantic lobster trap/pot fishery, the midAtlantic coastal gillnet fishery, the southeastern US shark gillnet fishery, and the Gulf of Maine sink-gillnet fishery. This team then formulated a plan, which was considered by NMFS and issued as a proposed rule in April 1997.55 The implemented provisions of the plan include the formation of a fishing gear advisory group, research on potential gear modifications to reduce entanglement and ease release, an outreach and education program targeted towards fishers, the expansion of the disentanglement network, refinement of aircraft surveys, time and area closures, and time/area-specific restrictions on gear.56 Additional gear restrictions were added in December, 2000.57 Also, in 2002 NMFS created three more rules that required further modifications to fishing gear, established restricted areas, and restricted fishing in these specific areas.58 A similar process resulted in the establishment of an Atlantic Offshore Cetacean Take Reduction Team in May of 1996. This team generated a plan to address incidental take in the offshore driftnet fishery for swordfish and the longline fishery for tunas.59 Due to concern regarding these fisheries’ impacts on right whale

Ibid. Moore, “Current Issues Facing North Atlantic Right Whales and Stakeholders.” 55 “Recovery Plan for the North Atlantic Right Whale.” 56 Ibid. 57 Ibid. 58 Ibid. 59 Ibid. 53 54


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populations, the offshore drift gillnet fishery for swordfish, sharks, and tuna was closed.60 Lastly, the 1991 recovery plan established a marine mammal disentanglement program, which could be called upon to respond to reports of whales in distress. Disentanglement has been found to increase the survivability of whales in high-risk cases.61 However, likely only a small proportion of entangled whales are reported, and not all disentanglement attempts are successful. Even when successful, the injuries sustained by the whale from gear can still be life-threatening.62 Therefore, disentanglement cannot be relied upon to eliminate right whale mortalities. C. Marine Mammal Protection Act and Incidental Take If interpreted broadly, the take prohibitions of the Endangered Species Act and Marine Mammal Protection Act could have massive implications. The entire fishing industry could be viewed as degrading the critical habitat of these whales, with NOAA authorization. All shipping should be made illegal due to the large number of vessel strikes threatening the species. However, these implications were recognized in the drafting of these acts, and Sec. 101 of the Marine Mammal Protection Act allows for incidental take of marine mammal species.63 Allowances for incidental take are echoed in the Endangered Species Act under Section 10.64 In fact, the two acts overlap significantly in how they address incidental take of depleted or endangered species by commercial fisheries. The MMPA specifies that incidental mortalities/take could be allowed even for species that are listed as depleted (and are therefore also listed as endangered under ESA) if several conditions are met. The first is that the incidental mortality from commercial fisheries has a negligible impact on the species or stock.65 The MMPA also recognizes that a recovery plan must have been developed for the species under the Endangered Species Act. Lastly, for certain fisheries the MMPA requires that Ibid. Robbins, Knowlton, and Landry, “Apparent Survival of North Atlantic Right Whales after Entanglement in Fishing Gear.” 62 “Recovery Plan for the North Atlantic Right Whale.” 63 “The Marine Mammal Protection Act of 1972.” Section 101 64 “Endangered Species Act of 1973.” Section 10 65 “The Marine Mammal Protection Act of 1972.” Sec. 101 60 61


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a monitoring program be established and a take reduction plan developed.66 NOAA Fisheries has released a list of fisheries whose participants are required to obtain marine mammal authorization certificates due to frequent or occasional marine mammal mortalities in the fishery.67 NMFS also released an Atlantic Large Whale Take Reduction Plan (ALWTRP) in 1997, whose coverage includes North Atlantic right whales. The ALWTRP is described as “an evolving plan that changes as NOAA Fisheries Service learns more about why whales become entangled and how fishing practices might be modified to reduce the risk of entanglement.”68 Under these measures, the lobster trap/pot and gillnet fisheries have continued to thrive despite continuing right whale mortalities due to entanglements. Adequacy of Current Regulation There was once substantial hope within the conservation community that the rules enacted under the ESA and MMPA were working. Between 1990 and 2010, the population of North Atlantic right whales increased at a growth rate of roughly 2.8% per year, growing from just 270 individuals in 1990 to 483 in 2010.69 Vessel regulations were a huge help in reducing the number of mortalities due to ship strikes.70 However, since 2010 there appears to have been a shift in the range of North Atlantic right whales, with decreased sightings in some of their usual habitats and increased sightings in areas where they have not been seen before.71 This range has corresponded to an increase in right whale entanglement events [Figure 2]. In fact, within the past year alone, there have been eighteen North Atlantic right whale mortality events. Though US authorities have yet to release the results of eleven on-going necropsies, the Canadian Incident Report on Right Whales found that “necropsy findings of

Ibid. “Marine Mammal Authorization Program (MMAP).” 68 “ALWTRP Home.” 69 Pace, Corkeron, and Kraus, “State–space Mark–recapture Estimates Reveal a Recent Decline in Abundance of North Atlantic Right Whales.” 70 Pennisi, “North Atlantic Right Whale Faces Extinction.” 71 Pace, Corkeron, and Kraus, “State–space Mark–recapture Estimates Reveal a Recent Decline in Abundance of North Atlantic Right Whales.” 66 67


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trauma and entanglement coincide with high level of fisheries and maritime traffic in the Gulf of St. Lawrence.”72 Increases in mortality are only meaningful within the context of federal law if they can be considered significant. The potential biological removal (PBR) of a species calculates the number of individuals of a species that humans can kill without leading to serious population declines. Since the PBR of North Atlantic right whales is 0.9, NOAA fisheries explicitly recognizes that “any mortality or serious injury for this stock can be considered significant.”73 Furthermore, the population has been found to have declined significantly over the past few years, dropping 5% since 2010.74 Unfortunately, it appears that breeding females have suffered the worst of the declines. The chair of the North Atlantic Right Whale Consortium calculated that if trends in death rates continue, very few reproducing females will be left in just 20 years.75 Many experts are beginning to speak as though extinction is imminent.76 It appears as though the regulations governing fisheries have done little to address increasing mortalities. In fact, one study concluded that “there is no evidence that current fishing regulations have been effective at reducing mortality.”77 Meanwhile, NOAA Fisheries has allowed for the continued growth of lobster pot/trap and gillnet fisheries. Between 1982 and 2013, the number of lobster traps deployed in the Gulf of Maine increased from 2 million to 3 million.78 Despite risks to large whales, stronger ropes were introduced to New England fisheries in the 1990s.79 In an environmental impact statement for an amendment to the ALWTRP, NOAA fisheries simultaneously acknowledged that their actions pose a “slightly negative” impact

Daoust et al., “Incident Report: North Atlantic Right Whale Mortality Event in the Gulf of St. Lawrence, 2017.” 73 “Modifications to the Atlantic Large Whale Take Reduction Plan: Final Environmental Assessment.” 74 Pace, Corkeron, and Kraus, “State–space Mark–recapture Estimates Reveal a Recent Decline in Abundance of North Atlantic Right Whales.” 75 Cramer, “Already on Brink, Right Whales Are Pushed Closer to the Edge.” 76 Ibid. 77 Scott D. Kraus et al., “Recent Scientific Publications Cast Doubt on North Atlantic Right Whale Future.” 78 Cramer, “Already on Brink, Right Whales Are Pushed Closer to the Edge.” 79 Ibid. 72


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to large whales, while also being non-significant.80 They recognized the high degree of uncertainty that characterized any calculation of mortality risk.81 These actions have included opening closed areas to fishing, increasing the amount of fishing line suspended in the water column, and other potentially damaging practices to North Atlantic right whales.82 There is substantial evidence that NOAA fisheries has allowed for the continued decline of the North Atlantic right whale. However, it remains to be determined whether or not the agency’s actions can be considered illegal under the Endangered Species Act and the Marine Mammal Protection Act. Many environmental groups believe that the actions of NMFS represent a clear violation, and in October 2017, the Center for Biological Diversity, Defenders of Wildlife, and Whale and Dolphin Conservation threatened a suit against the US governments for violating the Endangered Species Act and Marine Mammal Protection act by failing to adequately manage the American lobster fishery.83 The groups hope to secure additional measures to prevent future entanglements.84 However, an argument that can and may be made on the part of the US government may refer to the flexibility of the Recovery Plans and Take Reduction Plans required by the Endangered Species Act and Marine Mammal Protection Act. The Endangered Species Act leaves the development of the guidelines behind required recovery plans to the executing agencies.85 These guidelines, promulgated by NMFS, state that one of their goals is the minimization of socioeconomic impacts.86 Similarly, the take reduction plan guidelines specify that economic cost should be taken into account in recommending measures.87 Therefore, the NMFS does not need to demonstrate that its actions represent the best possible attempts to reduce right whale entanglements. It

“Modifications to the Atlantic Large Whale Take Reduction Plan: Final Environmental Assessment.” 81 Ibid. 82 Ibid. 83 “Groups Demand U.S., Canada Act to Save North Atlantic Right Whales.” 84 Ibid. 85 “Endangered Species Act of 1973.” 86 “Interim Endangered and Threatened Species Recovery Planning Guidance.” 87 “The Marine Mammal Protection Act of 1972.” 80


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need only prove that its measures were the best that could be implemented without resulting in excessive costs. Whether or not the Endangered Species Act and Marine Mammal Protection Act are enough to prevent the North Atlantic right whale from plummeting towards extinction will depend upon the success of these latest lawsuits. The statutes themselves grant more than enough power and flexibility to protect the North Atlantic right whale. However, in their application, NMFS has made significant compromises with commercial fishing interests. Through their authorization of incidental take permits, NOAA has allowed for the expansion of the industry. Their recovery plans and take reduction proposals are weak compared with the actions many conservationists and scientists argue are needed. Still, the judicial system may rule in favor of NMFS due to the significant power the agency has in setting the terms of plans and measures. Suggestions for Improvement Ideally, Congress would amend the Endangered Species Act and Marine Mammal Protection Acts to lessen the Executive branch’s ability to defer to industry interests. Several small changes could result in a much better legal situation for the North Atlantic right whale. The first would be establishing some form of repercussion if agencies fail to achieve full recovery or reduce mortality to below PBR within a certain length of time. Creating stricter timelines could also spur technological innovation in gear development, forcing the government to invest more heavily in research. Secondly, statutory ambiguity regarding when economic costs can be taken into account should be resolved. With its placement within the Department of Commerce and due to the large political influence of the fishing industry, NOAA Fisheries has an incentive to consider economic costs in the development of plans and rules. Yet deference to industry and reliance on economic analyses disadvantages the right whale, whose value is largely noneconomic and non-human in nature. It also conflicts with the spirit of the Endangered Species Act, which seeks to


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“halt and reverse the trend towards species extinction, whatever the cost.”88 This solution is unlikely, however, because Congress is under the same political pressure to defer to the fishing industry as NMFS. In the current political climate, Congress is more likely to encourage greater consideration of socioeconomic costs, regardless of damages to whale populations. A. Feasible Solution: Favorable Court Rulings As the population of North Atlantic right whales continues to decline due to commercial gear entanglements, there will be increasingly greater grounds to sue on the basis that NOAA’s incidental take permits no longer result in a “negligible” impact on species and stock. A successful lawsuit on these grounds could result in an injunction on the continued issuance of incidental take permits to especially damaging fisheries. There are guidelines for when and how incidental take permits can be revoked, making continued take of the species illegal under the Endangered Species Act or Marine Mammal Protection Act.89 If the fishing vessels in question possess any state or local authorization, then state governments would be viewed as violating the ESA and MMPA. As a result, fishing within the pot/trap and gillnet fisheries in certain critical locations would likely halt. This would come at a huge cost to the industry, and require a lengthy legal process and multiple suits as the range of the North Atlantic right whale continues to shift. Conclusions There has not been a marine cetacean extinction in modern history, making the situation facing the North Atlantic right whale especially alarming.90 As is true of many of the world’s enduring ecological injuries, regulatory solutions are difficult, costly, and politically charged. The plight of this one particular species can make one wonder, is the loss of the North Atlantic right whale really worth a reevaluation of current statutes? Once

TVA v. Hill, 437 US. “Habitat Conservation Planning and Incidental Take Permit Processing Handbook.” 90 Begin-Marchand, “Which Cetacean Species Are Extinct?” 88 89


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gone, the North Atlantic right whale is unlikely to be mourned by many for long. Yet the story of the North Atlantic right whale is significant because of the precedent it sets. The Endangered Species Act and Marine Mammal Protection Act are robust, but structured in such a way that some species inevitably slip through the cracks. It is up to the collective population of the United States to determine how much loss is too much. If the plight of the North Atlantic right whale has revealed anything, it is that we are running out of time to answer.


INTERNATIONAL SECTION


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AUSTRALIA: IMPLACABLE DEFENDER OF THE TORTURE OF REFUGEE CHILDREN IN THE REPUBLIC OF NAURU KIEREN KRESEVIC SALAZAR STAFF WRITER

For over four years, the Australian government has detained and tortured over 2,000 refugees in the Manus Island and Nauru Regional Processing Centres (RPCs). It has done so with impunity and under a political narrative of compassion and fairness: detaining these women, men and children acts as a deterrent that stops others attempting the risky boat crossing from Indonesia to Australia. By examining the Convention Against Torture alongside Australian domestic law and investigative reports by the Australian Human Rights Commission; the United Nations High Commissioner for Refugees; and the United Nations Special Rapporteur on Torture, it is evident that the intentional detention of children and families in the Republic of Nauru meets the definition for torture, as does the ongoing detention of refugees and asylum seekers on Manus Island, Papua New Guinea.

Introduction: For over four years, the Australian government has detained and tortured over 2,000 refugees in the Manus Island and Nauru Regional Processing Centres (RPCs). It has done so with impunity and under a political narrative of compassion and fairness: detaining these women, men and children acts as a deterrent that stops others attempting the risky boat crossing from Indonesia to Australia. What has been particularly frustrating and infuriatingly mind-boggling, has been the Australian government’s ability to do this seemingly within the confines of legality, and its promulgation of direct and blatant lies in the face of clear evidence to the contrary. We have entered a post-truth,


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post-human rights era where the dominant discourse of border protection eviscerates the humanity of the Manus and Nauru detainees. Today, it is clear that Australia’s policy of offshore detention and in particular its detention of minors in Nauru, constitutes torture as defined by Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT), ratified by Australia in 1989. The Australian government has demonstrated its willingness to continue detaining minors and adult refugees in the Republic of Nauru and Papua New Guinea, while knowing that this action inflicts both mental and physical pain and suffering.1 Australia’s policy of offshore detention since 2012 is motivated by the desire for deterrence of other asylum seekers who would seek to reach Australia by boat, as documented in the Memorandum of Understanding between Australia and Nauru, and sustained political discourse from the Liberal Party Government of Australia.2 As a result, the current policy stance of both major political parties in Australia is one of cruelty: the ongoing dehumanisation and torture of refugee children, women and men. Background to the current Australian Offshore Detention Policy Since 2012, Australia has pursued a policy of offshore detention and strict marine border protection in response to an influx in asylum seeker arrivals by sea between 2010-2012. The Gillard Labor Government reopened Regional Processing Centres (RPCs) (the “Pacific Solution’) on Manus Island, Papua New Guinea and the Republic of Nauru, to detain and process asylum seekers outside of Australia.3 The Abbott Liberal Government Doherty, Ben. "A Short History Of Nauru, Australia’S Dumping Ground For Refugees." The Guardian, 2017, https://www.theguardian.com/world/2016/aug/10/a-short-history-of-nauruaustralias-dumping-ground-for-refugees. 2 Department of Border Protection, “MEMORANDUM OF UNDERSTANDING BETWEEN THE REPUBLIC OF NAURU AND THE COMMONWEALTH OF AUSTRALIA, RELATING TO THE TRANSFER TO AND ASSESSMENT OF PERSONS IN NAURU, AND RELATED ISSUES” 3 "Australia Reopens Asylum Detention In Nauru Tent City." U.S., 2017, http://www.reuters.com/article/us-australia-asylum/australia-reopens-asylumdetention-in-nauru-tent-city-idUSBRE88D07120120914. 1


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later began a policy, “Operation Sovereign Borders”, where all refugees intercepted at sea on their way to the Australian mainland after July 19th 2013 would be detained on Manus Island and Nauru and not be eligible for resettlement in Australia.4 As of the 31st August 2017, 43 children remain on Nauru on bridging visas, living in the community.5 In 2016, the “Nauru Files”, a cache of over 2,000 incident reports from security and health services on Nauru were leaked, and subsequently released by the Guardian newspaper. These reports detail dozens of instances of self-harm, threat of self-harm, family violence, physical assault from security personnel, sexual assault of minors and minors witnessing severe acts of self-harm and violence among adults.6 Memorandum of Understanding (MOU) between Australia and the Republic of Nauru Key to understanding Australia’s role and obligations in detaining refugees and asylum seekers on Nauru is the MOU established between Australia and Nauru. In particular, it details: “The need for practical action to provide a disincentive against Irregular Migration, People Smuggling syndicates and transnational crime and intended to promote orderly migration and humanitarian solutions.”7

This Memorandum reflects Australia’s political priorities in detaining asylum seekers offshore, indefinitely and in conditions that as discussed later, amount to torture. Offshore detention on Nauru is fulfilling an aim to “provide a disincentive against "Operation Sovereign Borders." Osb.Border.Gov.Au, 2017, http://www.osb.border.gov.au/en/Outside-Australia. 5 Australian Border Force “Immigration Detention and Community Statistics Summary.” 31st August 2017. 6 Evershed, Nick et al. "The Nauru Files: The Lives Of Asylum Seekers In Detention Detailed In A Unique Database – Interactive." The Guardian, 2017, https://www.theguardian.com/australia-news/ng-interactive/2016/aug/10/thenauru-files-the-lives-of-asylum-seekers-in-detention-detailed-in-a-uniquedatabase-interactive. 7 Department of Border Protection, “MEMORANDUM OF UNDERSTANDING BETWEEN THE REPUBLIC OF NAURU AND THE COMMONWEALTH OF AUSTRALIA, RELATING TO THE TRANSFER TO AND ASSESSMENT OF PERSONS IN NAURU, AND RELATED ISSUES” 4


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Irregular Migration, People Smuggling syndicates and transnational crime.” Here, Australia is emphasising its ongoing warped humanitarian discourse, where it emphasises that offshore detention is a necessary deterrent (or “disincentive”) to stop ‘boat people’ arriving in Australia, and people smugglers from benefiting from the desperation of their customers. The “practical action” that the MOU proselytizes is a euphemistic tour de force; reading between the lines, the MOU shows how Australia’s incentives align with treating the refugees and asylum seekers as harshly as possible to send the largest “disincentive” for others asylum seekers to try to reach Australia by boat. It also asserts the quasi-legal jargon of “irregular migration”, implying and enabling the more explicit political dialogues locally that incorrectly label refugee arrivals as illegal migration. Furthermore, this Memorandum is particularly pernicious in that both countries agree that they wish “no benefit [to be] gained through circumventing regular migration arrangements.” This firstly implies a non-existent normative principle of a regular way that these asylum seekers and refugees should be attempting to reach Australia. But furthermore, it is deeply troubling in that it directly implies that asylum seekers should not benefit from their right of claiming asylum. Australia here is plainly and openly demonstrating the values and motivations underlying its offshore detention policy, and Nauru’s unquestioning compliance in exchange for vast amounts of foreign aid and investment. The MOU reinforces the harmful political dialogue of the past 5 years in Australia surrounding refugee policy. This notion of “orderly migration” is a myth in the humanitarian resettlement space, where the pathways for a refugee to follow are a myriad of dead-ends, unsafe camps and ongoing states of limbo. An insistence on some kind of “regular migration” denotes the pernicious trope of the “queue jumper” that has degraded debate in Australia over the conditions refugees face in Nauru and on Manus Island. That is, a queue jumper is understood to be one who undeservingly wishes to reach Australia rather than waiting


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patiently in some far off queue or camp.8 If Australia wanted to set up a queue and a “humanitarian solution” to the humanitarian crises it has engineered in both RPCs, it should work towards a humanitarian resettlement pathway directly through Indonesia and with joint co-ordination between these two neighbouring countries. In addition, the MOU highlights the false dichotomy that Australian politics has so successfully established; in order to stop children and families drowning at sea, there is no option but to set up offshore detention as a fierce deterrent. Within this context, Australia has consistently ignored international and internal criticism that it is contravening several articles of the Convention of the Rights of the Child (CRC) and Convention of the Status of the Refugee. Conditions Facing Children The Australian Human Rights Commission’s 2014 report details grave breaches of Australia’s international obligations. Especially but not limited to: “The Commission finds that the inevitable and foreseeable consequence of Australia’s transfer of children to Nauru is that they would be detained in breach of article 37(b) of the Convention on the Rights of the Child. The Commission finds that Australia transferred children to Nauru regardless of whether this was in their best interests, in breach of article 3(1) of the Convention on the Rights of the Child. The Commission has serious concerns that the conditions in which children are detained on Nauru are in breach of the Convention on the Rights of the Child, articles 19(1), 20(1), 24(1),27(1), 27(3), 28, 31 and: 16(1): No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 34: States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. 37(a): No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment

Thompson, Matthew. "'Queue Jumping' The Hot Button For Australian Thinking About Asylum Seekers." The Conversation, 2017, https://theconversation.com/queue-jumping-the-hot-button-for-australian-thinkingabout-asylum-seekers-4004. 8


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It is already well established that Australia has made many serious violations of the CRC, seen in the AHRC’s “Forgotten Children” report as well as the findings of the Moss Report, Briefly however, it is notable that the Commission adopted a definition of detention as “Detention: Locked detention environments where children are held. This does not include Community Detention.”10 This definition narrows the scope of the Commission’s inquiry, perhaps because it was before the advent of open centre arrangements in 2015, however it is important to problematise this definition and use the grounding that these reports offer to consider how Australia stands in violation of the Convention Against Torture. Can Australia Wash Its Hands of What Occurs on Nauru? Turning specifically to the situation facing those detained in Nauru, Australia should be held directly responsible for the detention (either within the Regional Processing Centre or in the Nauruan community) and ongoing experience of refugees and asylum seekers in Nauru, regardless of its occurrence outside of Australian territory. In Plaintiff M68/2015 v Minister for Immigration and Border Protection before the Australian High Court in 2016, Justice Michelle Gordon’s dissent offers a frame through which to evaluate Australia’s role within the distancing act of detaining refugees offshore.11 Although Justice Gordon’s dissenting opinion was not shared by the other judges and so carries limited legal significance, it offers an analytic methodology and interpretation of Australia’s obligations to children and adults detained on Nauru. This case considers the ability of the Australian government to detain the Plaintiff in Nauru (the Plaintiff at the time was

Australian Human Rights Commission. The Forgotten Children: National Inquiry Into Children In Immigration Detention. AHRC, Australia, 2014,. 10 Ibid., 44 11 High Court of Australia. Plaintiff M68/2015 V Minister For Immigration And Border Protection. 2016,. 9


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temporarily in Australia), at a time that was just after the introduction of “open centre arrangements”. This arrives at a critical juncture as there is a lack of major reports or data released since the open centre arrangements have come into place – the leaked “Nauru Files” detail incident reports until 2015 and The Forgotten Child report and Moss Report are conducted while detainees continued to live in closed detention. Justice Gordon rules that “The Commonwealth [Australia] detained the Plaintiff on Nauru”, citing; the Migration Act as sending the Plaintiff to the Nauru RPC; the MOU with Nauru that details Australia’s obligations to Nauru; that Australia applied on the Plaintiff’s behalf for their visa to be on Nauru; and that Australia has significant control, involvement and responsibility for transport, security and administrative services involved in detaining the Plaintiff on Nauru 12 Through her exploration of Australia’s active role in the detention of the Plaintiff, the Justice finds that: “Put another way, there could be no dispute that the Commonwealth took the Plaintiff to a place outside Australia (namely Nauru). But, on Nauru, the Commonwealth did not discharge the Plaintiff from its detention. Despite having removed the Plaintiff to a place outside Australia, the Commonwealth intended to and did exercise restraint over the Plaintiff's liberty on Nauru, if needs be by applying force to her. Notwithstanding that there is no explicit mention of detention in the MOU or the Administrative Arrangements, the Commonwealth detained the Plaintiff on Nauru by its acts and conduct.”13

Thus, this dissenting judgement shows how Australia can be considered as actively detaining refugees and asylums seekers on Nauru, not merely working with Nauru to allow them to be processed in another nation. Australia then bears direct responsibility for the detainment and consequences of the Plaintiff’s time on Nauru, and this implicates that such detention on Nauru must be considered within the paradigm of Australian law regarding indefinite and arbitrary detention.

12 13

Ibid., 100 Ibid., 110


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Harvard College Law Review - International Section “Unwarrantable interference with an individual's liberty is not authorized and is to be prevented. Here, the interference with an individual's liberty by the Commonwealth was no longer warranted once the person's removal to Nauru was complete. To the extent that the detention by the Commonwealth of the Plaintiff on Nauru was no longer warranted, it may be, at least in Australian law, a tortious act … It is the detention by the Commonwealth of the Plaintiff outside Australia and after the Commonwealth exercised its undoubted power to expel her from Australia, or prevent entry by her into Australia, that cannot be lawfully justified.”14

Justice Gordon clearly proves that ongoing detention in Nauru is not justified in the Migration Act in Australia, only the Plaintiff’s removal to Nauru. Given that it is Australia that continues to detain the Plaintiff, this process of ongoing detention is unlawful under domestic law and such a finding, if a majority opinion in future cases, would have drastic and enforceable implications on Australian refugee policy. Do “Open Centre Arrangements” Constitute Detention? It is conceivable that Justice Gordon’s dissent may be used to strengthen lawyer’s arguments for future cases that may appear before the High Court or State Supreme Courts. Through this frame of reference, we can consider the implications of the finding that it is the Australian government detaining those on Nauru. However, this is a finding that was reached on the Plaintiff’s past detention on Nauru within the RPC. Given the current policy of “open centre arrangements” where those with positive refugee status may live outside of the RPC, can those on living in the community on Nauru still be considered as under detention? Taking from the Australian Migration Act (1958): “immigration detention means: (a)being in the company of, and restrained by: (i) an officer; or (ii) in relation to a particular detainee—another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or (b) being held by, or on behalf of, an officer: (i) in a detention centre established under this Act; or

14

Ibid., 114


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(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or (iii) in a police station or watch house; or (iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or (v) in another place approved by the Minister in writing; but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).”15

In 2016, a UN Submission to the Australian Senate found that “key aspects of conditions are indistinguishable from previous detention arrangements. This includes the number of security guards, the configuration of the fences at the perimeters and the sub-compounds and overcrowding in accommodation, including the continued use of communal tents (‘marquees’) for protracted periods of time. Individuals remain living in a detention-like setting, which has a severely detrimental impact on mental health, increasing the risk of abuse and self-harm.”16 Based on this UNHCR inquiry, it is clear that refugees on Nauru continue to meet the criteria for immigration detention: by being continually under security guard supervision and many living within areas still fenced off, or in designated communal tents, and continuing to be in the company of, and restrained by officers. Furthermore, the fact that they are kept on Nauru confines them to an area of 8 square miles, and involuntarily forces them to remain within this limited area. The limited size of the islandnation and lack of education, employment and social opportunities essentially confines refugees to a large detention centre. It is important to acknowledge the improvement that an open centre arrangement represents, however; confining refugees to remain on Nauru against their will constitutes ongoing detention and thus violates Australian law through the analysis of Justice Michelle Gordon.

Australian Ministry of Immigration (Home Affairs) “Migration Act 1958” Part 1. “Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 Senate Legal and Constitutional Affairs Legislation Committee.” Submission by the Office of the United Nations High Commissioner for Refugees. 2016. 15 16


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Ongoing Open Detention: Refugee Children on Nauru in a Situation of Torture Article 1 of the CAT defines torture as: “For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”17

The situation facing minors on Nauru falls within the definition of “torture” under the CAT that Australia has ratified, and that this is a direct result of immigration detention on Nauru by the Australian Commonwealth. David Isaac, professor and doctor of the discipline of child health at the University of New South Wales emphasises how “there is strong evidence that prolonged immigration detention results in severe mental health problems including anxiety, depression, post-traumatic stress disorder, self-harm and suicidality” and himself argues that “severe harms that befall asylum seekers as a result of prolonged immigration detention arguably fulfil the definition of torture in being suffering that is intentionally and unlawfully inflicted through agencies influenced by the Australian Government with the intention of coercion and deterrence.”18 Similarly, in examining the moral quandaries for doctors and healthcare providers to be involved in systems that harmed children mentally and physically during Australia’s offshore and onshore detention policies under the Howard government in the 2000s, Briskman et al. reflect that “Torture … comes about by the “Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment” United Nations 1985. 18 Isaacs, David. "Are Healthcare Professionals Working In Australia's Immigration Detention Centres Condoning Torture?." Journal Of Medical Ethics, vol 42, no. 7, 2015, pp. 413-415. BMJ, doi:10.1136/medethics-2015-103066. 17


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continued refusal of the government to stop organised and deliberate neglect. Government involvement is systematic because immigration policy precludes any legal means of allowing child asylum seekers without a visa to live in an environment that fosters normal growth and development.”19 Although a subjective interpretation by a non-expert, this reflection from a healthcare practitioner shows the very serious concerns that medical professionals have, from their own firsthand experience, on how minors in detention are treated. Juan Mendez’s United Nations’ “Report of the Special Rapporteur on Torture” in 2015 found that “in the absence of information to the contrary, the Rapporteur concludes that there is substance in the allegations presented in the initial communication, reiterated above, and thus, that the Government of Australia, by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre, has violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT.”20 Here then surely, is damning evidence that Australia’s offshore detention policy constitutes a violation of the CAT against torture and cruel, inhuman or degrading treatment and punishment. However, this is the very same United Nations report that former Prime Minister Tony Abbott rejected out of hand, asking the United Nations to “stop lecturing” Australia.21 It is evident that the most scathing and ongoing critiques from the United Nations and other independent investigators like Human Rights Watch and Amnesty International have had little effect on the prevailing political and public opinions of Australia’s offshore detention regime from 2012 until today. The Australian

Linda Briskman , Deborah Zion & Bebe Loff (2010) Challenge and collusion: health professionals and immigration detention in Australia, The International Journal of Human Rights, 14:7, 1092-1106 20 “Report of the Special Rapporteur on Torture.” Juan Mendez, United Nations, 2014. 21 "Abbott Hits Out At Scathing UN Report On Asylum Policies." ABC News, 2017, http://www.abc.net.au/news/2015-03-09/tony-abbott-hits-out-united-nationsasylum-report/6289892. 19


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government has not been held to account because it has not been directly open to prosecution as having broken Australian law. The Australian government has particularly been able to deflect this kind of criticism over the past two years, in the advent of open centre arrangements. A parallel example is seen in how, when the Manus Island RPC was ruled unconstitutional by Papua New Guinea’s supreme court, open centre arrangements were implemented and a deadline set to shut down the RPC (with the grand humanitarian vision of relocating the detainees to another transit centre in Lorengau town, essentially a worse equipped RPC that heightened the men’s fear of being abandoned on Manus Island). In the strongest terms, simply changing the form of detention from a closed centre to an open arrangement with freer movement must not allow Australia to sidestep its obligations and culpability for the torture faced by detained children and adults on Nauru, or Manus Island. Returning to the definition of torture in Article 1 of the CAT, we may draw together the various threads analysed earlier into meeting this definition of torture as a direct result of ongoing detainment by the Australian Commonwealth, particularly regarding the situation of minors. This is particularly important as the Mendez determinations do not go into detail on how the Special Rapporteur arrived at his conclusions and since the situation of detention on Nauru has evolved since former major investigations have been published. The first element of severe pain and suffering has been explicitly established in both “The Forgotten Child” AHRC report and “Moss Report” as well as myriad other investigations by the United Nations and independent researchers.22 Without needing to go into the plethora details of innumerable tragic and infuriating harms, recently, the Guardian’s leaked “Nauru Files” demonstrate how children have faced self-harm, such as sewing lips together and suicide attempts, as well as frequently been in situations where adults are committing self-harm or acts of physical and sexual assault.

“Taking responsibility: conditions and circumstances at Australia's Regional Processing Centre in Nauru” The Australian Senate. August 2015. 22


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Subsequently, given the mandate for deterrence that Australia has set up in its MOU with Nauru and its political message to the Australian people to “stop the boats”, Australia has intentionally inflicted these devastating conditions onto the families and men on Nauru. The indefinite detention of children puts them in a position that the Australian government must know will result in mental and physical harm, given its prior policies of offshore detention with similar results in the 2000s, and the continuous incident reports that have been collected by its various security providers and International Health and Medical Services (IHMS) on Nauru. Thirdly, it is reasonable to argue that the conditions faced on Nauru come as a punishment for exercising one’s legal right to seek asylum and cross borders to do so, and/or coercing a third person (in this case, other asylum seekers yet to attempt to cross into Australia) to change their course of action after seeing the lack of hope of indefinite detention and associated traumas on Nauru. This is seen to be done by the Australian government through the newly dubbed Minister for Home Affairs, Peter Dutton, and the unlawful ongoing detention of children on Nauru. For minors, their indefinite detention and known risks for being exposed to and participate in self-harm and assault as a result of their particularly vulnerable developmental stage of life, represents an exceptionally high level of both physical and mental suffering. Minors have also had to adopt political roles within their experience of detention, as evidenced in various protests involving children bearing different signs, and in one case, even nooses, as seen in photos posted by refugees to social media. That Australia can continue to disregard the rights of the 43 children still detained on Nauru is an egregious violation of both its domestic laws and international legal obligations, as well as an unflinching abandonment of the nation’s ethics when protecting the most vulnerable. Indeed, it seems that refugee minors and adults have become a persecuted minority as part of the group commonly dubbed boat people, and face direct persecution for having attempted to exercise their legal right to claim asylum, while at the same time, Australia fulfils the principle of nonrefoulment.


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A Troubled Road Forward The United Nations has been making a similar demand for the past 5 years; namely that Australia remove all children from offshore detention on Nauru, and that it end its process of indefinite detention and resultant torture by resettling all refugees held on Manus Island and Nauru, who are not able to be take-in by the United States, into Australia. Barring this, recommendations that better reflect feasibility in the current political climate would be that the Australian government should immediately accept New Zealand’s offer, if still extended, to resettle one hundred and fifty of the refugees held on Manus and Nauru, with priority given to the children and families held on Nauru. Prime Minister Turnbull’s spurious reasoning that the U.S. deal must first be completed before considering New Zealand’s offer lacks both logic and compassion – the U.S. will not take in all of the refugees offshore that Australia is responsible for, and even if a different U.S. administration did; New Zealand’s resettlement process would be completed far more rapidly than the current U.S. intake which has started exceedingly slowly. The burden is on Australia to end the detention of children and torture of refugees and asylum seekers as quickly as possible. Foreseeably, if Australia did not wish to ever allow those who have been detained in either RPC to enter its territory, it could bar those individuals regardless of whether they will hold New Zealander or American citizenship in the future. Conducting research on the current situation for children and other refugees and asylum seekers detained on Nauru is severely limited by the restrictive visa policies imposed by Nauru and the secrecy with which the Australian and Nauru governments have regulated those contracted to provide services in the detention compounds. Even the Australian Human Rights Commission was not permitted to visit Nauru to investigate, nor the former President of the Commission, Professor Gillian Triggs.23

Australian Human Rights Commission. The Forgotten Children: National Inquiry Into Children In Immigration Detention. AHRC, Australia, 2014,. 23


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Journalists and media organisations must apply for a restrictively expensive $8,000 AUD media visa.24 Even organisations willing to invest this, such as the Guardian, have had their requests for visa application forms ignored.25 For normal citizens, Australians and New Zealanders have an added obstacle of needing to find a Nauruan citizen and current resident to sponsor their application to visit, with the sponsor taking on legal responsibility for their visitor’s actions.26 The Australian government should lift this veil of secrecy, and give full access to the Human Rights Commission to conduct research on the situation in Nauru. Acknowledging the detention on Nauru is conducted by the Australian government, would open up Nauru for more Australian researchers, which will carry more weight domestically than continued UNHCR reports, evidenced in the furore over The Forgotten Children release in 2014. The Australian government must allow the AHRC to visit Nauru to conduct uninhibited research and interviews with detainees. The situation of children on Nauru lies well within the jurisdiction of the AHRC, contrary to the determination of Scott Morrison, former Minister for Immigration, when he denied Professor Gillian Triggs access to Nauru.27 Conclusion Particularly after the settlement out of court of a class action lawsuit from the men on Manus Island (and the unfortunate compromise of absolving the government of wrongdoing in the terms of this settlement), there is much further work that can be done to pursue the question of legality and torture within Australian law of the current offshore processing policy, in order

"Visa Requirements - The Government Of The Republic Of Nauru." Naurugov.Nr, 2017, http://www.naurugov.nr/about-nauru/visitingnauru/visa-requirements.aspx. 25 Davidson, Helen. "Nauru Bans Entry For Australians And New Zealanders Without A Visa." The Guardian, 2017, https://www.theguardian.com/world/2016/feb/19/nauru-bans-entry-australiansnew-zealanders-without-visa. 26 "Visa Requirements - The Government Of The Republic Of Nauru." Naurugov.Nr, 2017, http://www.naurugov.nr/about-nauru/visitingnauru/visa-requirements.aspx. 27 http://www.smh.com.au/federal-politics/political-news/human-rights-commissionboss-gillian-triggs-blocked-from-visiting-nauru-20140203-31xg6.html 24


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to push Australia to abide by its international obligations. While the current political climate in Australia seems to tolerate the torture of children and adults in Nauru and Manus Island, we can hope that ongoing research and refugee court cases will push Australia to abide by its domestic laws and force durable solutions to be provided, especially for the children of Nauru.


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PRIVACY AND DEMOCRACY THOMAS ELLIOTT STAFF WRITER

For the past several decades, people have fought for their internet privacy rights, refusing to simply “get over it” as urged by Scott McNealy, CEO of Sun Microsystems, in 1999. This essay will begin by delineating property from privacy, using the distinction to evaluate the emergence of the idea of privacy in political thought. An evaluation of these arguments lends to the idea that it is not only undemocratic, but many times unconstitutional in nature to encroach upon the privacy of citizens in the manner that is currently being done. As a result, this essay argues that private companies should be restricted in their data collection practices. In doing so, the essay will evaluate the ongoing struggle between privacy and security in the NSA and beyond.

In the past fifty years, technology has progressed at a staggering rate. Computers have become smaller, faster, cheaper, and more powerful. Smartphones now allow people to access the internet and the entirety of human knowledge from almost anywhere in the world. The services and products of Google, Facebook, and their subsidiaries have exploded in number and are currently used by billions of people every year.1 These improvements and massive increase in the people’s usage of technology have changed the way people interact, how news is

Pui-Wing Tam, “Facebook casts Giant Shadow Over Twitter,” New York Times, July 28, 2016, accessed July 29, 2016, http://www.nytimes.com/2016/07/29/technology/facebook-casts-a-giant-shadowover-twitter.htm; Richard Nieva and Max Taves, “Google I/O by the Numbers: 1B Android Users, 900M on Gmail,” CNET, May 28, 2015, accessed July 30, 2016, http://www.cnet.com/news/google-io-by-the-numbers-1b-android-users-900m-ongmail/; Nick Statt, “WhatsApp Has Grown to 1 Billion Users,” The Verge, February 1, 2016, accessed July 30, 2016, http://www.theverge.com/2016/2/1/10889534/whats-app-1-billion-users-facebookmark-zuckerberg. 1


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reported, and where and how personal information is stored and compiled. It is now much more common for people to provide medical information, pay bills, or even file taxes online. As a result, new innovations in data collection, while beneficial on a variety of levels, yields social anxiety. In 1999, Scott McNealy, the CEO of Sun Microsystems, responded to this anxiety about online privacy by saying: “You have zero privacy. Get over it.”2 Despite McNealy’s urge to let the issue go, people have continued the fight to retain their privacy rights. In 2013, Edward Snowden illuminated the necessity of the struggle when he revealed how much the National Security Agency, the United States’ signals intelligence agency, spied on its citizens and foreign nationals in the name of protecting American interests. Not long afterwards, Maximilian Schrems, an Austrian citizen, sued Facebook’s Irish subsidiary for violating his privacy rights when data from users in Europe was transported to American data centers. Schrems argued that “European data stored by US companies was [sic] not safe from surveillance that would be considered illegal in Europe.”3 Interestingly enough, Facebook took the users’ consent to the terms and service to mean that any data collected could be treated as Facebook property. In other words, when people used Facebook’s services, Facebook treated their browsing habits as objects that could be transferred and distributed as the company wished. After a long legal battle that ended up in the Court of Justice of the European Union, the Transatlantic Data Protection Agreement,4 more popularly known as the Safe Harbor Agreement, was declared invalid due

Polly Sprenger, “Sun On Privacy: ‘Get Over It,’” Wired, January 26, 1999, accessed July 29, 2016, http://archive.wired.com/politics/law/news/1999/01/17538. 3 James Cook and Rob Price, “Europe’s Highest Court Just Rejected the ‘Safe Harbor’ Agreement Used by American Tech Companies,” Business Insider October 6, 2015, accessed July 29, 2016, http://uk.businessinsider.com/european-court-ofjustice-safe-harbor-ruling-2015-10?IR=T. 4 This was an agreement that required all personal data of EU citizens remain within EU boundaries unless the country the data is moved to can ensure “an adequate level of data protection and the Member States’ laws … are respected prior to the transfer.” In other words, if companies moved personal data outside of the EU, they had to move it to places where privacy rights were just as stringent. For more, see European Commission, “2001/497/EC: Commission Decision of 15 June, 2001 on standard contractual clauses for the transfer of personal data to third countries, under Directive 95/46/EC,” June 15, 2001, accessed November 1, 2017, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001D0497. 2


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to the fact that the United States was not ensuring proper protection of European data.5 In early 2016, a new agreement, named the Privacy Shield, was drawn up and put into effect as a replacement that “provide[s] stronger obligations on companies in the U.S. to protect the personal data of Europeans.”6 But why do people care so much about privacy, anyway? Why not follow McNealy's suggestion and "get used to it?” "It" being the use of private data by companies and governments for their own ends. For a clearer understanding going forward, I think it is worthwhile to point out an important distinction between two types of “property” that was brought up in the Schrems Case. One is private information, the other is property. Privacy rights cover private information, which in today’s society often comes in the form of online interpersonal communications, bank and medical records, and so on.7 This information is unlike property in that no matter where this data is, it is still owned by the person the data describes. Putting it into somebody else’s hands does not immediately make it impersonal and therefore usable for any and all purposes. Thus, use of this information must be preceded by explicit consent of the person the material concerns. This stands in stark contrast to property, which, once sold or given away, no longer belongs to the seller and thus consent for further use is not required. The delineation I am trying to draw here is that there is something intrinsically different about personal data precisely because it can cause much more harm to an individual when in the wrong hands. Therefore, privacy rights deserve their own particular space in the legal world, and private information cannot be treated like property given the potential to do major damage. While it is true that it is harder to maintain in our technological age, I argue that the privacy of citizens must be protected from both governments and companies so that

Maximilian Schrems v Data Protection Commissioner C-362/14 (Court of Justice of the European Union, October, 2015), http://curia.europa.eu/jcms/upload/docs/application/pdf/2015-10/cp150117en.pdf. 6 European Commission, “EU Commission and United States Agree on New Framework for Transatlantic Data Flows: EU-US Privacy Shield,” February 2, 2016, accessed July 30, 2016, http://europa.eu/rapid/press-release_IP-16216_en.htm. 7 Given the proximity of the terms “private information” and “personal data,” I will use the two interchangeably. 5


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democratic societies may remain healthy. In the rest of this article, I will try to explain my position. The idea of privacy in modern liberal political thought has its roots in the work of philosophers like Thomas Hobbes and John Stuart Mill. While Hobbes may appear to be in support of a monarchical society with limited tolerance, Arash Abizadeh argues Hobbes did in fact argue that "it is not the size or the visibility of [a] ‘system’ that determines whether it is public or private, but, rather, its relation to the state."8 With this reasoning, the philosophical foundation for a separation of official governmental policy and private belief was established. More importantly, Hobbes also split apart two kinds of public display, noting the difference between "what is open or visible versus what is official or representative of the community." This distinction, one that "Medieval Christianity had systematically conflated,"9 mattered, as it prevented the opinions of an individual without power to necessarily represent the views of a larger group. Granted, this does not reference privacy specifically, but by dividing the two, Hobbes established an important underlying principle of separating personal and public action. Such a distinction would suggest that there be some protection of one against the other so as to prevent fusion of the two. That is to say, one must be protected against the other so that private opinion remains as such and vice versa. In other words, Hobbes’ arguments here constitute the philosophical beginnings of the notion of freedom of opinion as a consequence of privacy. This is an idea John Stuart Mill continued to write about to some degree in On Liberty. Mills argues that free speech is absolutely necessary for society as humans are prone to making mistakes.10 Mill states that “[c]omplete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action.”11 In other words, free expression allows debate, the results of which are used to

Arash Abizadeh, “Publicity, Privacy, and Religious Toleration in Hobbes’ Leviathan,” Modern Intellectual History 10, no. 2 (August 2013), 287. 9 Ibid, 265. Emphasis original. 10 John Stuart Mill, On Liberty (Project Gutenberg, 2011), 34-35, accessed October 7, 2017, https://www.gutenberg.org/files/34901/34901-h/34901-h.htm 11 Mill, 35. 8


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propel society forward, making free speech a necessary foundation of a working society. Mill further claims that “the mere example of non-conformity, the mere refusal to bend the knee to custom, is itself a service. … it is desirable, in order to break through that tyranny, that people should be eccentric.”12 Again, it is Mill’s emphasis on the ability of individuals to develop on their own terms that is key. In proposing that people have such a privilege suggests that the government has no right to interfere. Samuel Warren and Louis Brandeis continued this argument in their 1890 Harvard Law Review article on “The Right to Privacy.” One of the paper’s main conclusions was "that the protection afforded to thoughts, sentiments, and emotions … is merely an instance of the enforcement of the more general right of the individual to be let alone."13 In other words, privacy can be defined as the protection of the right to an opinion through “the right to be let alone.” Both rights are essential to protecting democracy: discussion and debate are at the center of the democratic process, which requires a diversity of opinion to flourish. Such diversity is reliant on the ability of people to form their own opinions and self-development to free them from prying eyes. As a result, Hobbes’ distinction between private and public spheres provides the space wherein people can develop their own viewpoints which is protected and justified by Mill, Warren, and Brandeis’ philosophies of letting people be. The problem with McNealy’s comment that people should “get over” their lack of online privacy is that it not only confuses two different notions of “property,” but it further implies that privacy is a dead letter; any attempt to renew it is a waste of time since people should allow their private lives to be continually intruded upon by both private companies and governments. I argue that this position is undemocratic; in many societies, it is also unconstitutional. Domestically, the Fourth Amendment of the United States Constitution, for instance, protects “[t]he right of the people to be secure in their persons, houses, papers, and

Ibid, 126. Louis Brandeis and Samuel Warren, “The Right to Privacy: The Implicit Made Explicit,” Harvard Law Review 4, no. 5 (December 1890): 205, accessed July 20, 2016, http://www.english.illinois.edu/-people/faculty/debaron/582/582%20readings/right%20to%20privacy.pdf. 12 13


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effects, against unreasonable searches and seizures.”14 In Europe, Article 7 of the Charter of Fundamental Rights of the European Union states that “[e]veryone has the right to respect for his or her private and family life, home and communications.”15 Internationally, Article 12 of the Universal Declaration of Human Rights states that “[n]o one shall be subjected to arbitrary interference with his family, privacy, home or correspondence.”16 These proclamations are meant to protect the rights of the individual against government tyranny to allow democracy to exist. Moreover, the internet currently plays an integral role in people’s personal lives with banking, medicine, education, and communication all having large presences online. Thus, these laws can all be logically extended to protect online activity as such activity relates to personal information. To illustrate how seriously this privacy principle is applied, in 1983, the German Constitutional Court blocked a national census from occurring. It stated that a census, as “an index [with] an individual’s complete personality, even in the anonymity provided by a statistical census,” would violate the German constitutional right to self-determination “since the individual would be treated as an object accessible to an inventory in every way.”17 If, as in Germany, a government cannot even conduct a census of its population, this stands as a clear precedent limiting the ability of a firm such as Facebook to collect information about its users’ browsing habits. After all, the advertising Facebook generates on an individual’s page is often tailored specifically for that person. In other words, there is even less objectivity in Facebook’s data collection as data is attached to a unique profile that could easily be tagged to a specific person. People, then, are becoming the product and their information turning into an asset that can be mined and used to turn a profit, all while violating users’ privacy.

U.S. Const., amend. IV. Charter of Fundamental Rights of the European Union, art. 7. 16 Universal Declaration of Human Rights, art. 12. 17 Bundesverfassungsgericht, decisions volume 27, p. 1 (p. 6) cited in Gerrit Hornung and Christoph Schnabel, “Data Protection in Germany I: The Population Census Decision and the Right to Self-Determination,” Computer Law and Security Review 25 (2009), 87. 14 15


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However, it is at this point important to note the existence of terms and conditions that companies like Facebook and Google set out in return for the use of their services. I am not arguing against private companies using private information with consent, especially since such an agreement is within the terms of use the companies set out. It is a necessary setup for the particular kind of business model social media requires to sell ads. Marketing agencies have done targeted research for years, where personal information about potential consumers is collected with the consent of said consumers. The distinction I would like to draw is that any information collected for advertising purposes is aimed for use within the company itself. Problems begin with the dissipation of personal data outside of these companies. With the high level of data collection that Facebook, Google, and other companies maintain, it is no surprise that governments are interested in possessing people’s information. Indeed, in the current sociotechnological environment, the NSA gathers massive amounts of metadata—so much, in fact, that the US government is unclear how many people it has targeted.18 To collect all this data, the NSA has contracted major IT companies, such as Facebook and Google, to gain access to information the NSA would not have seen otherwise.19 Given Facebook and Google’s data collection policy that links particular browsing habits with particular people, the NSA is then able to, theoretically, develop network maps based on people’s interactions. If private companies are acting in the name of the government and its interests, laws that restrict government data collection also, by proxy, should restrict the action of said companies. Private companies should be restricted in their data collection practices, either due to the ease of attaching information to an individual or by legal limitations introduced by

Trevor Timm, “The Surveillance State Can’t Even Keep Track of How Many People It’s Spying On Anymore: Time to Close the Loopholes,” The Guardian, July 2, 2014, accessed July 29, 2016, https://www.theguardian.com/commentisfree/2014/jul/02/surveillance-state-spyingnsa-702-fisa-amendments-act. 19 Last Week Tonight with John Oliver, "Government Surveillance," YouTube Video, 27:20-30:26, April 5, 2015, accessed July 23, 2016, https://www.youtube.com/watch?v=XEVlyP4_11M. 18


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working in government interests. Those who may oppose this rationale will typically site the counter-argument for privacy: security. Security, which when defined as pre-emptive protections in place to keep society orderly and civilians safe, is also a necessary ingredient of democracy because, in the words of South Carolina Representative Trey Gowdy, “not a single one of those rights is of much use to you if you are dead.”20 Indeed, governments are obligated to protect citizens and their rights at the same time, which can be a difficult balancing act. For example, the American constitution lays out governmental duties to provide for national security in its preamble and privacy in its fourth amendment.21 In Germany, Article 20a proclaims that the government “shall protect the natural foundations of life,” highlighting the obligation to protect not just citizens, but everybody within the country’s borders. This has to be balanced with fairly extensive privacy protections. Articles 1, 2, 10, and 13 protect privacy through preventing home search and seizure without a warrant; declaring interpersonal communications inviable, save in certain circumstances related to “protect the free democratic basic order or the existence or security of the Federation or of a Land,” and that everyone has the right to dignity and personal development, contingent on not infringing upon the development of others.22 However, the need to balance constitutional demands is not a blank check for the government to do as it pleases. It must be said that if a person’s self-development and views present a clear and present danger to the community at large, that person’s privacy cannot be maintained. This was a subject Mill also touched on in On Liberty, where he articulates “[t]hat the only purpose for which power can be rightfully exercise over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”23 Put simply, any government interference Amicus Humanis Generis, “High School Senior Asks Trey Gowdy A Question He Won’t Ever Forget,” YouTube Video, 1:51-1:55, April 28, 2017, accessed October 8, 2017, https://www.youtube.com/watch?v=BGPkuTO0GBM 21 U.S. Const. preamble & amend. IV. 22 Grundgesetz für die Bundesrepublik Deutschland, art. 1, 2, 10,13, accessed October 7, 2017, https://www.btg-bestellservice.de/pdf/80201000.pdf 23 Mill, 17. 20


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has to be on behalf of the majority and only when sufficient evidence arises. However, the term “security” is often used rather loosely by many governments, in some cases to justify intrusions into the private lives of innocent civilians. Collecting information as pre-emptive protection of the citizenry can only be done within the bounds of a country’s constitution—usually court warrants and sufficient prior evidence are required before privacy can be violated.24 Any intrusion on an individual’s privacy that does not meet those requirements (i.e. collecting information for the sake of doing so) does not necessarily prevent direct harm to the people a government is charged with protecting. A major example of the ongoing struggle between privacy and security is the NSA’s collection of vast amounts of metadata in the name of national security, specifically to reduce the threat of terrorism or extremist violence. The prime issue being that the NSA’s program was a complete failure. Studies have shown that NSA data collection programs have stopped almost no terrorist attacks and have a success rate vastly lower than traditional targeted surveillance.25 The only security such a program provides is psychological in nature, not practical. Psychological security is important, as it comforts people, but it fails to actually keep them safe. Meaning that if privacy is to be given up in the name of security, the ends have to justify the means. However, that’s not the case with the NSA. Therefore, as the NSA collects data for the sake of doing it, it fails in justifying its stated objectives while violating Constitutional rights on a massive scale. Such action can hardly be described as democratic. It may be argued that the potential to stop an attack outweighs privacy concerns and faulting the current system for not working should not reduce aspirations for increased security. The problem with this argument is its reliance on ideals. While it is often a constitutional imperative for governments to keep the populace safe, proper security cannot be anchored exclusively in the hope of keeping citizens unharmed, but can only be effective in the act U.S. Const., amend. IV, Grundgesetz für die Bundesrepublik Deutschland art. 13, Mapp v. Ohio, 367 U.S. 643 (S.C. 1961). 25 Peter Moskowitz, “Report Suggests NSA Surveillance Has Not Stopped Terrorism,” Al Jazeera, January 13, 2014, accessed July 23, 2014, http://america.aljazeera.com/articles/2014/1/13/review-findsnsametadatacollectionhasntstoppedanattack.html. 24


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of preventing an attack. This does not mean ideals are useless when it comes to discussions on security, but ideals cannot justify a system that cannot provide physical safety while violating other constitutional rights. In other words, aspirations of increased security alone cannot condone dismantling other constitutional rights. Another key factor occurred in 2015 when the Patriot Act expired and was replaced with the Freedom Act. The new law stipulates numerous reforms to government data collection. Among the most notable reforms include a requirement that telecommunication companies, not the government, store telephone metadata and that if the government wants to access that information, companies need only to comply under a FISA court order.26 However, there remain questions as to how effective the law is in practice. Shayana Kadidal, a senior managing attorney at the Center for Constitutional Rights, argues “that the main impact of the USA Freedom Act actually may have been to forestall review by the Supreme Court that might have given us [US citizens] more protection.”27 In other words, the legislature and the executive branches wanted to maintain as much of the surveillance mechanism in place, especially since “metadata is more useful to the government than content because… the records of who you talk to and when you talked to them can be very revealing when analyzed by computer.”28 Since less human labor is required, computers are able to reduce the time it takes to analyze potential threats, enabling security agencies to react more quickly. In order to maintain this, the American government put in a new law to appease complaining citizens that offers at least a surface level fix. Put simply, the Freedom Act has not changed the landscape of privacy and government surveillance in a significant way.

Warren Strobel and Patricia Zengerle, “U.S. Congress reverses post September 11 surveillance program,” Reuters, June 2, 2015, accessed October 7, 2017, https://www.reuters.com/article/us-usa-security-surveillance-passage/u-s-congressreverses-post-september-11-surveillance-program-idUSKBN0OI2I920150602 27 Sayana Kadidal, “Surveillance After the USA Freedom Act: How Much Has Changed?” Huffington Post, December 17, 2016, accessed October 8, 2017, http://www.huffingtonpost.com/the-center-for-constitutional-rights/surveillanceafter-the-us_b_8827952.html 28 Ibid. 26


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To conclude, I would like to return to Scott McNealy’s “get over it” comment because I wholeheartedly disagree with its underlying sentiment on two levels. The first is that it merges two related, but distinct ideas. One is that of property, something whose ownership can be transferred. The other is that of personal data, the use of which, because it describes a particular person, always has to gain the consent of the person involved. The conflation of these concepts suggests a lack of understanding on McNealy’s part of privacy’s necessity in society. Vague as it can be, privacy is a right worth fighting for and maintaining because it is a safeguard of democracy. This is even more true now, almost 20 years after Mr. McNealy’s statement, because society today is more reliant on technology than ever before. Data collection, whether by government agencies or private companies regardless of purpose, is a dangerous business. The presence of a digital treasury of information that could be used for nefarious purposes is risky in and of itself, mainly because such operations violate the right to privacy by infringing on the individual's ability to think and act in a private sphere. The contrary, where all information is collected and analyzed, opens Pandora’s Box, potentially allowing for the suppression of otherwise harmless organizations or policing thought. In other words, privacy exists to protect the citizenry from authoritarian encroachment. Privacy ensures individuals can create their own opinions on their own terms. Democracy establishes the trust that the government can leave its people alone while ensuring that citizens are not only informed, but also engaged so as to guarantee that the system continues. Privacy and democracy, then, are symbiotic.


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MILITARIZATION IS NO ANSWER TO THE FAILURES OF THE DRUG WAR IN LATIN AMERICA EDGAR CARRERO STAFF WRITER

The drug war’s general intentions in Latin America have long claimed to be principled: preventing violence and protecting people from the dangers of drugs. However, in practice the drug war has accomplished neither and furthered these very problems it claims to attempt to solve. One of the proposed solutions to the failure of drug prohibition in Latin America has been the militarization of the drug war. Proponents claim that the military is less corrupt and better suited to deal with the challenges of drug prohibition. Unfortunately, these claims are misguided and ignore the significant problem of decreased levels of accountability within the military, as well as the vast array of unintended consequences associated with empowering militaries domestically that are illtrained for civilian policing roles. This paper will begin by addressing the general motives and history of the drug war. Then it will focus on the developmental and societal impacts of prohibition in the region, dissecting the rationale and effects of militarization in the endeavor. Finally, this paper will address the potential alternatives to militarization and to the drug war overall.

History of the Drug War Drug prohibition on a global scale has long been considered necessary because of the alleged futility of national prohibitions if other countries did not collaborate. Drug prohibition has historically been seen as a global public good, which requires international collaboration to achieve. One of the main proponents of this prohibition was the United States, which began their national crusade against drugs in the 1920s as a


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subset of alcohol prohibition.1 By the 1930s, once alcohol prohibition was seen as a lost cause, drug prohibition was separated and the Federal Bureau of Narcotics was established. Drug prohibition was popular during this era of progressivism where improvement of the unruly masses by the elites was seen as desirable. The prohibition inevitably took the form of expanded government control over society’s destructive autonomy. Two lesser-known but equally important factors behind the push for drug prohibition came from racism and organized labor. American missionaries in Asia—along with many political leaders of the time including Theodore Roosevelt—did not think that simple foreigners were capable of handling the vices of the developed world.2 One of the most detrimental vices in their eyes was Opium, and Opium prohibition became popular. After initial prohibitions of Opium resulted in increased popularity for other drugs, as the substitution effect would suggest, this push for Opium prohibition snowballed into more general drug prohibition. In the American domestic sphere racism also played a major role in the push for prohibition of both marijuana and cocaine. Marijuana was not prohibited in the United States until 1937 when the drug became associated with Mexicans. AntiMexican rhetoric became laden with the relation between Mexicans and marijuana usage and prohibitionists went so far as to claim that “drugs might inspire minority males to act violently or express sexual interest in white women.”3 A similar narrative is found in cocaine prohibition with the drug’s prevalence in American culture becoming problematic once it became associated with African Americans. Some leaders of organized labor groups preyed on racist tendencies, as exhibited by Samuel Gompers’ complaints that “opium use gave Chinese immigrant workers an unfair advantage in the labor market. The Chinese were said to be able to work longer and harder because of the

Levine, Harry G. "The Secret of Worldwide Drug Prohibition: The Varieties and Uses of Drug Prohibition." The Independent Review 7, no. 2 (2002): 165-80. 2 Nadelmann, Ethan A. "Global Prohibition Regimes." International Organization : IO, 1990, 432-77. 3 Randy E. Barnett. "Bad Trip: Drug Prohibition and the Weakness of Public Policy. America's Longest War: Rethinking Our Tragic Crusade Against Drugs. By Steven B. Duke & Albert C. Gross." Yale Law Journal 103 (1994): 2593. 1


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drug.”4 The reality of the racist origins of drug prohibition should not be sugarcoated; drug prohibition was created with an inherent racial bias and its results have demonstrated the racially disparate impact of these outdated policies. Remarkably, many people do not know that prohibition is inherently a global phenomenon. Public opinion rarely reflects this fact; when pressed most people suspect that only around half of the world’s countries participate in drug prohibition, but the reality is that every single country has signed onto the framework of global drug prohibition.5 The origins trace back to the League of Nations where the progressive thinkers of the time proposed the normative benefits of drug prohibition and attempted to engender international support for the effort. After the dissolution of the League of Nations, the United Nations took up the cause in the 1961 Single Convention on Narcotic Drugs.6 The International Narcotics Board has since concerned itself with ensuring the “coherence and effectiveness of the international drug control system” and has been vocal against countries that do not comply.7 Since then drug prohibition across nations is best described as a spectrum from most stringent to most lax, with the United States embodying the most stringent enforcement and Portugal embodying the laxest enforcement among developed countries. This same spectrum also applies within countries; in the United States for example federalism has resulted in States with largely varying enforcement standards for different drugs and uses of said drugs. Prohibition in Latin America Coca has long been a part of culture practices in many regions of Latin America. Historically, Andean Indians regularly chewed coca leaves and brewed coca teas. In fact, it was so common that coca was a legal crop in many regions in Latin America until the

Ibid. Levine, Harry G. "The Secret of Worldwide Drug Prohibition: The Varieties and Uses of Drug Prohibition." The Independent Review 7, no. 2 (2002): 165-80. 6 Ibid. 7 Sara Miller Llana. "UN: Latin America Undermining Drug War by Decriminalizing Drugs." The Christian Science Monitor (Boston, Mass.), February 24, 2010. 4 5


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1980s.8 Prohibition efforts in Latin America were largely imposed by foreign nations in a thinly veiled form of imperialism, with little concern for existing cultural norms. The rationale was that there was a need to stem the supply of drugs from drug producing nations to drug consuming nations. This external goal was enforced through strong diplomatic pressure and tangible restrictions on foreign aid if a country did not cooperate, infringing greatly upon their national sovereignty.9, 10 This supply-side prohibition rationale can be summarized as an attempt to stem the flow of drugs from producing countries by theoretically reducing their supply and consequently increasing their price. However, this theory has historically proven to not work towards the ultimate goal of stemming the flow of drugs.11 Latin American governments quickly found that collaboration was crucial to remaining in good favor with their powerful American neighbor and that they could benefit from the drug war effort. Militaries realized that the surplus weapons were useful to their undersupplied forces and the additional responsibilities that were often granted greatly increased their overall political power. Similarly, police forces also enjoyed the increased power in the civil sphere. Politicians found a scapegoat they could blame for all of the ails of society and a villain they could rail against with no political backlash. Additionally, there were the many jobs and bureau’s created both in Latin America and abroad to fight the war on drugs, which had a clear incentive to maintain the prohibition effort. These domestic incentives, coupled with exterior pressure, gave the drug prohibition apparatus the roots it needed to flourish in Latin America. During the cold war era, the discourse around preventing the collapse of capitalist nations to communism was related to the drug prohibition effort.12 Many leftist revolutionary forces in

Long, William R. "Coca Growers Prove Tenacious and Elusive." Los Angeles Times, July 07, 1992. 9 Zirnite, Peter. "The militarization of the drug war in Latin America." Current History 97 (1998): 166. 10 Youngers, Coletta, and Eileen Rosin, eds. Drugs and democracy in Latin America: The impact of US policy. Lynne Rienner Publishers, 2005. 11 Ibid. 12 “Thirty Years of America’s Drug War: a Chronology.” PBS, Public Broadcasting Service. 8


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Latin America funded their efforts through the illicit drug trade. The FARC in Colombia funded their leftist revolutionary force through a combination of ransoms and drug cultivation/ protection for cartels. However, once the cold war ended in the early 1990s the drug war in Latin America still continued to expand and remains a significant factor in the U.S.-Latin America relationship to this day.13 The contemporary relationship is largely predicated around the concept of security assistance, which includes “economic assistance, training, intelligence support, equipment transfer and maintenance support, and advice.”14 Developmental Impacts on Latin America Latin America’s economic development has been greatly impacted by drug cultivation and the drug war’s prevalence in the region. The largest impacts to development stem from the corruption and rent-seeking behaviors that drug prohibition has fostered. The war on drugs has created supernormal profits and incentives for drug production by accumulating all the gains from drug production to a few illicit cartels, which are capable of taking on the additional risk created by the illegality. These cartels amass large profits in the absence of competitive markets to the extent that they have been able to bribe entire governments in Latin America. A notable example is found in Colombia, where many important figures in the government—all the way up to the President—were at one point on the Cali Cartel’s payroll.15 This kind of generalized corruption decimates the public’s trust in governmental institutions and the rule of law in general, both of which are crucial factors for economic development. Another important factor on development has been the continuation of Latin American agricultural production past the economically optimal point. The distorted prices and returns to drug cultivation, created by their illegality, have affected Latin

Ostrow, Ronald J. "Remapping Latin America's Drug War; from Bolivia to Mexico, Governments Are Getting Aggressive." Los Angeles Times, July 07, 1992. 14 Zirnite, Peter. "The militarization of the drug war in Latin America." Current History 97 (1998): 166. 15 Colombia President’s Aide Linked to Drug Money.” The New York Times, The New York Times, 27 July 1995. 13


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America’s development by encouraging drug cultivation. This emphasis on production of primary goods has resulted in very few of the profits from the drug trade accruing in Latin America, with estimates in the 8-10% range. The majority of value is added post distribution in developed countries and most capital flees Latin America through various forms of money laundering because of attempted restrictions on domestic capital suspected to be related to the drug trade. This capital flight was demonstrated in the Uchiza region of Peru where large quantities of drugs were smuggled and much money was made, but everyone took their capital out “because they think that when the police land here someday, they will seize their things.”16 All forms of international aid have been completely entangled with prohibition efforts. U.S. Foreign Aid and IMF loans have been made conditional on a country’s collaboration with the domestic drug war effort. This has coerced countries to collaborate with international drug war efforts and undermined the national sovereignty of Latin American nations. This has gone so far as to explicitly have an annual “certification process” for countries to be considered in good standing with these institutions.17 This has bred resentment towards the United States and free-market countries in general that are seen as imperialist powers, frequently resulting in economically ignorant populist backlash. This conflation of free-market ideology and imperialism has been detrimental to Latin American nations by helping economically detrimental populism thrive in the region. Once drug cultivation is embedded in a Latin American economy, crop alternatives are near impossible to push. The prohibitionists often endorse crop substitution plans, but the costs are prohibitive for local governments because of the disparity in profitability between coca planting and any other crop. Additionally, the coca plant can grow in most regions in Latin America on “poor soil and yields up to four or five crops each year.”18 This forced large expense further develops a dependency Long, William R. "Coca Growers Prove Tenacious and Elusive." Los Angeles Times, July 07, 1992. 17 Youngers, Coletta, and Eileen Rosin, eds. Drugs and democracy in Latin America: The impact of US policy. Lynne Rienner Publishers, 2005. 18 Andreas, Peter. "Free market reform and drug market prohibition: US policies at cross-purposes in Latin America." Third World Quarterly 16, no. 1 (1995): 75-88. 16


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on international aid to meet the costs of the substitution programs. International budgets for such programs are very limited which results in increased dependency on American aid. Even with foreign funding for crop-substitution programs, the efforts are vain since legal crops provide far fewer jobs. For example, cocaine crop substitution programs in general provide jobs “for only around one in five of those who worked in coca.”19 Societal Impacts on Latin America Anti-drug demonization has not only had detrimental economic impacts but also tangible societal ones. The increased incarceration rates have been very detrimental to healthy societal development. They prevent productive contributions to society and break up familial and other social bonds. All resources devoted to the drug war are resources that are being taken from fighting other crimes since local budgeting is a zero-sum game where resources are limited. Foreign-imposed prohibition efforts in Latin America “drai[n] scarce resources from other national priorities” in nations that have abundant developmental areas that must receive priority in order for these nations to prosper.20 Forced eradication programs, a common trend of prohibition efforts in Latin America, have fostered much resentment among rural farmers whose livelihoods are being threatened. Such upheaval is demonstrated in incidents such as the expulsion of UN agronomists from the region of Monzón in Peru after angry coca farmers were tired of foreign-imposed eradication efforts.21 Other developed nations have already begun to realize the futility of forced eradication and its counter-productiveness. For example, the German foreign aid bureau has stated that “when poverty is the root cause of production, repressive eradication measures are inappropriate and counterproductive.”22 The United States and local Latin American governments must realize that forcefully

"Leaders: The Turmoil down South; Latin America." The Economist 369, no. 8348 (2003): 17-16. 20 Youngers, Coletta, and Eileen Rosin, eds. Drugs and democracy in Latin America: The impact of US policy. Lynne Rienner Publishers, 2005. 21 "Battles Won, a War Still Lost." Economist 374, no. 8413 (2005): 49-50. 22 Youngers, Coletta, and Eileen Rosin, eds. Drugs and democracy in Latin America: The impact of US policy. Lynne Rienner Publishers, 2005. 19


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taking small farmers livelihoods will do little towards the goal of drug prohibition and just foster resentment. Another sparsely mentioned negative effect of great importance is the ecological consequence of intrusive crop eradication methods. Many of the herbicides and chemicals used in massive fumigations of Latin American croplands have been proven to be environmentally toxic, but their efficacy in killing drug plants have prevented international policymakers from concerning themselves with the harmfulness.23 Some of these eradication efforts take the form of highly unpopular aerial sprayings where “American helicopters spray from the air, releasing clouds of yellowish or reddish mist that settle over doomed coca fields.�24 This firsthand account from the Peruvian Uchiza region was the norm in the early 1990s. These forced eradications often destroy the only cash crops and in effect the livelihoods of impoverished farmers.25 Additionally, mass fumigation efforts have also created collateral damage with many legal crops, such as coffee or cocoa fields, being fruitlessly destroyed. Furthermore, increased prohibition efforts have pushed drug cultivation deeper into forests, which provide for cover from detection. This has resulted in large clearings of native tropical lands in ecologically harmful manners such as burnings. The chemicals used in drug production tend to be dumped in rivers in these remote regions by drug enforcement agents as a disposal method, an environmentally disastrous and misguided choice led by convenience and drug demonization.26 Perennial Problems with Prohibition The current drug war is a consequence of drug prohibition. Drug prohibition efforts attempt to stem the trade and consumption of drugs on the grounds that it is normatively Del Olmo, Rosa. "The Ecological Impact of Illicit Drug Cultivation and Crop Eradication Programs in Latin America." Theoretical Criminology 2, no. 2 (1998): 269-78. 24 Long, William R. "Coca Growers Prove Tenacious and Elusive." Los Angeles Times, July 07, 1992. 25 Youngers, Coletta, and Eileen Rosin, eds. Drugs and democracy in Latin America: The impact of US policy. Lynne Rienner Publishers, 2005. 26 Del Olmo, Rosa. "The Ecological Impact of Illicit Drug Cultivation and Crop Eradication Programs in Latin America." Theoretical Criminology 2, no. 2 (1998): 269-78. 23


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beneficial for society. Most drug war efforts focus on a supply-side model that claims that the constraints on drug supply will increase the price and thus decrease demand for drugs. However, these expensive efforts have done little to increase prices and decrease demand. On the other hand, many studies suggest the opposite: drug “prices have fallen even as world demand has risen.”27 Given the large costs of the drug war and the lack of any tangible progress in the effort, the feasibility of drug prohibition seems implausible. The reality of the black market’s ability to bridge the gap between the unwavering demand for drugs and the artificial constraints on legal supply caused by prohibition has been empirically demonstrated. Additionally, the limits on legal suppliers pushes the drug trade underground and breeds cartels and strongmen that use violence instead of the legal system to resolve differences. When disputes between suppliers, dealers, and consumers cannot be settled through the courts, they will inevitably be solved using violence.28 Similarly, the lack of differentiation through advertising and branding results in violence being used in attempts to claim territory and expand clientele bases. All of these unintended consequences were present in the alcohol trade during the years of alcohol prohibition, but notably absent in the years prior and in the years following the repeal of alcohol prohibition.29 One of the common successes drug war champions tout are the arrests, or killings, of drug lords and kingpins. What they fail to mention is the meaninglessness of these efforts since these changes only result in shifts of power that tend to further increase violence. When a market leader in an area is compromised it creates a power vacuum, which other cartels fight to take over. A great example of this phenomenon was exemplified by the capture of Pablo Escobar debilitating the Medellin Cartel in Colombia and the subsequent power vacuum that the Cali Cartel promptly filled. Similarly, recently when “El Chapo” was recently captured it weakened the Sinaloa Cartel but other regional cartels began a bloody war to fill the power void. This supposed success in the "Battles Won, a War Still Lost." Economist 374, no. 8413 (2005): 49-50. Miron, Jeffrey A. "The Economics of Drug Prohibition and Drug Legalization." Social Research: An International Quarterly 68, no. 3 (2001): 835-55. 29 Ibid. 27 28


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drug war culminated in one of the most violent month in Mexican history, which policy analysts have attributed to El Chapo’s capture.30 Overall, since the Mexican war on drugs began in 2006 drug war related fighting has left “nearly 150,000 dead and 28,000 missing.”31 These massive costs have been coupled with no gains in the drug war and no signs of violence slowing down anytime soon. The reality of the drug war is that when increased resources are poured into one area to prevent drug production, production just increases in another area. This is consistent with economic theory: if the relative costs of production are increased in an area, because of increased prohibition efforts, production shifts to another area with a lower relative cost of production. This effect has been referred to as the balloon effect and, its implications are consistent with the aforementioned empirical evidence regarding relatively consistent supply of drugs. A historical example of this phenomenon is provided by the American efforts to cut down the “air bridge” between Peruvian and Bolivian Coca and Colombian production. When they began ramping up prohibition efforts in this region and began shooting down unidentified planes they just raised the relative price of Peruvian and Bolivian coca, so the Colombian cartels promptly began growing the required crop in Colombia.32 This kind of vertical integration is to be expected under such market conditions and illegal markets are not insulated from basic economics, such as the substitution effect. Another large scale empirical example of the balloon effect was described by the head of the U.S. State Department’s bureau of international narcotics and law enforcement, William Brownfield, who stated that the United States had successfully moved much of the drug trade out of Mexico, but that it had just shifted to Central America where “criminal gangs now facilitate the flow of up to 95 percent of all cocaine reaching the US and threaten the

Valencia, Robert. "Mexico is losing the drug war as devastating violence grips the nation." Newsweek. November 22, 2017. 31 Valencia, Robert. "Mexico is losing the drug war as devastating violence grips the nation." Newsweek. November 22, 2017. 32 Zirnite, Peter. "The militarization of the drug war in Latin America." Current History 97 (1998): 166. 30


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very governments themselves.”33 These regional shifts exemplify the balloon theory and are consistent with data that shows a consistent level of Coca Cultivation in the Andes from 1988-2003, with just fluctuations between the regions where it is produced.34 Over time, the focal point of the drug trade has shifted from Bolivia and Peru to Colombia, then to Mexico, and now to Central America, yet the steady flow of drugs remains constant. This demonstrates that the “victories” in the drug war have been little more than glorified geographic shifts of main hubs of production. Another consistent problem with prohibition is the lack of accountability inherent in the drug war’s reporting structure.35 Whether interdiction officials are making large seizures or negligible seizures, they always find a way to claim that they need more resources. While officials may claim that large and frequent seizures show the success of the drug war in preventing drugs from reaching the market and that they need more resources in order to further these successes. However, they fail to account for the fact that this may simply demonstrate increased production. On the other hand, when drug seizures are scant in a given time period officials claim that they need more resources in order to effectively combat the drug threat. Either way, whether drug seizures are plentiful or scarce, enforcement officials always reach the same conclusion: they need more resources. This exemplifies the reality that “performance and effectiveness are not synonymous” and that these small seizures are not efficacious steps towards reducing domestic drug use.36 This lack of accountability has contributed towards the consistently growing budgets that have yielded no tangible results in the prohibition efforts. The decay of civil liberties in regions with high levels of drug enforcement is another perennial problem of drug prohibition. In Latin America, the United States pushed for mandatory Ayuso, Silvia. "FEATURE: US-Latin America Relations Defined by Drug War." McClatchy - Tribune Business News (Washington), November 23, 2011. 34 Youngers, Coletta, and Eileen Rosin, eds. Drugs and democracy in Latin America: The impact of US policy. Lynne Rienner Publishers, 2005. 35 Andreas, Peter. "Free market reform and drug market prohibition: US policies at cross-purposes in Latin America." Third World Quarterly 16, no. 1 (1995): 75-88. 36 Zirnite, Peter. "The militarization of the drug war in Latin America." Current History 97 (1998): 166. 33


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minimum and mandatory quotas for arrests, similar to in the United States, and the results were predictably disappointing.37 Minimum sentencing laws have resulted in low-level drug offenders filling up prisons, and mandatory quotas have created perverse incentives for unwarranted law enforcement arrests. Moreover, the United States has pushed tough-on-drug crime rhetoric and laws in the region that has resulted in a situation where local human rights lawyers complain that “defendants [are] forced to prove their innocence.”38 All of these laws were essentially given to Latin American legislatures by the United States for “rubberstamp approval” and according to studies “not one had evidence of serious legislative oversight of counterdrug policy.”39 These countries are being politically pressured to adopt a legal system that fits the interests of the United States. Apart from the clear infringement on sovereignty, this practice is clearly morally reprehensible: the United States should not be pressuring other countries to adopt these flawed methods that have yielded no success domestically. Militarization as a solution? In 1971 Richard Nixon took a decisive step towards militarizing the drug prohibition effort when he proclaimed drug trafficking “a national security threat.”40 This kind of alarmism was helpful in painting the evil drug menace needed for the escalation of conflicts to come. This trend continued under Reagan and George H.W. Bush and in 1989 the Pentagon was designated as the “single lead agency” for drug interdiction.41 Placing the military solely in charge of this policing function was a clear step towards militarization. This step was followed by the Andean Initiative, which emphasized U.S. assistance to the region’s militaries through heavy American financial

Youngers, Coletta, and Eileen Rosin, eds. Drugs and democracy in Latin America: The impact of US policy. Lynne Rienner Publishers, 2005. 38 Ibid. 39 Ibid. 40 Amatangelo, Gina. "Militarization of the U.S. Drug Control Program." Foreign Policy in Focus 6, no. 16 (2001): 1. 41 Amatangelo, Gina. "Militarization of the U.S. Drug Control Program." Foreign Policy in Focus 6, no. 16 (2001): 1. 37


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investments.42 Afterwards, Bill Clinton launched a similar effort in the region deemed “Plan Colombia.” This plan also consisted of “mainly military aid” and was sold to the American public as the next step in the war on drugs.43 In Latin America militarization is often offered as a solution to corruption in legal enforcement. The American effort to militarize the drug war in Latin America attempts to “strengthen the power of Latin American security forces, increase the resources available to them, and expand their role within society.”44 If prohibition is the goal and police enforcement of the drug war is riddled with corruption, then militarization seems like a possible solution. Moreover, it is politically popular in Latin America with polls showing support for militarization in the region between 54%-83% depending on the country.45 Much of this support stems from the lack of trust in the police and civil government overall. Furthermore, support for militarization also comes from underfunded states in these countries since the cost of militarization is predominantly borne by the federal government and international aid. Many of the military supplies that are being used in Latin America are surplus American military goods that are transferred as excess defense articles. While there is theoretically a monetary limit on the amount that can be given each year, the defense department largely circumvents this restriction by vastly underestimating the original acquisition costs of the surplus military goods.46 Material goods are not the only foreign assistance provided to militarization efforts, direct military training typically in the form of Tactical Analysis Teams (TATS) are prevalent in Latin America. These teams are composed of small groups of American special forces in countries throughout Youngers, Coletta, and Eileen Rosin, eds. Drugs and democracy in Latin America: The impact of US policy. Lynne Rienner Publishers, 2005. 43 "Next Steps in Colombia; The Drug "war" in Latin America. (Arguments over Aid)." The Economist (US) 374, no. 8413 (2005): 11US. 44 Zirnite, Peter. "The militarization of the drug war in Latin America." Current History 97 (1998): 166. 45 Zechmeister, Elizabeth J. "The Political Culture of Democracy in the Americas, 2014." Vanderbilt.edu. April 2016. 42

Zirnite, Peter. "The militarization of the drug war in Latin America." Current History 97 (1998): 166. 46


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Latin America. Their operations have grown in popularity after their perceived success by the upper command. At times their involvement has been so explicit that these forces have been suspected of going so far as to have engaged in direct warfare with cartels and other drug traffickers.47 Latin American diplomatic and financial incentives, coupled with international imperialist motivations, have culminated in recent increases in militarization in the region as well. This trend is exemplified by Felipe Calderon’s decision to militarize the drug prohibition effort in Mexico in 2006. This decision has increased the amount of drug prohibition enforcement greatly and unsurprisingly this militarization has been accompanied by an explosion in levels of violence in the region.48 The correlation between militarization and violence in the region has been predictable but alarming nonetheless.49 Failures of Militarization The reality is that the failures of drug prohibition are inherent in its objective and cannot be simply fixed by increasing military presence in the domestic sphere. Ultimately, soldiers are trained for military jungle warfare and not civilian law enforcement.50 This fact is demonstrated by the increased incidences of abuse of power and excess violence when regions are militarized for the drug war effort. For example, between 2003 and 2013, as Mexico imposed rampant militarization Amnesty International reported a 600% increase in reports of state torture.51 This is a disturbing trend in Latin America that should caution policymakers against considering militarization as a potential solution to the drug war’s problems. Given these abuses, it is profoundly disturbing that the U.S. military is training Latin American forces in surveillance tactics to use on their own

Ibid. Miron, Jeffrey A. "Violence, Guns, and Drugs: A Cross-Country Analysis." The Journal of Law & Economics 44, no. S2 (2001): 615-33. 49 Shear, Michael, and Randal Archibold. "In Latin America, U.S. Focus Shifts From Drug War to Economy." New York Times (1923-Current File) (New York, N.Y.), May 05, 2013. 50 Zirnite, Peter. "The militarization of the drug war in Latin America." Current History 97 (1998): 166. 51 “Torture in Mexico is out of Control.” Amnesty.org, Amnesty International. 47 48


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civilians, when in the past these very militaries have used unauthorized surveillance on their citizens to “systematically violate basic human rights.”52 Militarization also likely increases the very corruption it claims to combat. The argument that the police are corrupt and hence the military need to fulfill their role in order to reduce corruption is flawed. There is little evidence to indicate that the military is any less corrupt in these countries. There is a plethora of examples in Latin America of corrupt militaries, for example the current Venezuelan military has not just participated in but orchestrated much of the corruption in both state-run industries and state-led repression. Apart from innate regional military corruption, militarization also presents the problem of further reductions in accountability. While corrupt police forces may be somewhat insulated from public scrutiny, military forces are wholly shielded from almost all civilian measures of accountability. If the leadership in the military is corrupt then internal justice mechanisms will be compromised and the corruption will be insulated. Bolivian President Gonzalo Sánchez de Lozada put it best when he said “When you have a corrupt chief of police, you fire him. When you have a corrupt chief of the army, he fires you.”53 This anecdote highlights the difficulty of imposing civilian anti-corruption measures on military members, which fall under a different chain of command. Another striking example of military corruption can be found in Colombia where there has been evidence of military collusion with the right-wing paramilitary group Autodefensas Unidas de Colombia (AUC).54 This illegal militia group has been convicted of terrible human rights violations and has been responsible for much bloodshed in the region. Collaboration and direct support for military members who are involved in these kinds of collusion is deeply troubling and suggests that the military is certainly not immune from corruption.

Zirnite, Peter. "The militarization of the drug war in Latin America." Current History 97 (1998): 166. 53 Zirnite, Peter. "The militarization of the drug war in Latin America." Current History 97 (1998): 166. 54 "Next Steps in Colombia; The Drug "war" in Latin America. (Arguments over Aid)." The Economist (US) 374, no. 8413 (2005): 11US. 52


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Apart from making accountability harder, militarization in Latin America has directly destabilized democracy in the region.55 When the military begins to conduct civil functions, citizens lose faith in the civil police system and civil government at large. This has happened throughout Latin America in countries like Colombia, Venezuela, Mexico, and Bolivia. Military forces in civil environments are prone to abuse their power in ways that are not consistent with contemporary civil norms. Additionally, needing to use the military to complete civilian roles of domestic policing suggests that the civil government has failed and gives populists an opening to claim they can fix the country’s woes. Militarization blurs the line between civilian and military functions and this inevitably destabilizes regions.56 While populism is a phenomenon that has plagued Latin America throughout history, militarization has facilitated this very decay in effective civilian governance. Another problem with militarization is that it increases violence in a region. Increased militarization in a region leads to increased enforcement efforts, which leads to more conflict in a region. A perfect example of this is Felipe Calderon’s aforementioned decision to militarize the drug war in Mexico. Just from 2006-2013 the increased militarization efforts left between 60,000-70,000 Mexicans dead with little to show for the violence.57, 58 When the military began targeting certain cartels and kingpins it did not stem, or much less stop, the flow of drugs. On the other hand, it opened all too familiar power voids that other cartels fought each other over. This is consistent with empirical evidence that increased levels of drug enforcement subsequently increase levels of violence in a region.59 Harvard

Zirnite, Peter. "The militarization of the drug war in Latin America." Current History 97 (1998): 166. 56 Youngers, Coletta, and Eileen Rosin, eds. Drugs and democracy in Latin America: The impact of US policy. Lynne Rienner Publishers, 2005. 57 Shear, Michael, and Randal Archibold. "In Latin America, U.S. Focus Shifts From Drug War to Economy." New York Times (1923-Current File) (New York, N.Y.), May 05, 2013. 58 Villagran, Lauren. "No More Drug War in Latin America? Report Explores New Ways to Fight Drugs." The Christian Science Monitor (Boston, Mass.), May 17, 2013. 59 Miron, Jeffrey A. "Violence, Guns, and Drugs: A Cross-Country Analysis." The Journal of Law & Economics 44, no. S2 (2001): 615-33. 55


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Economist Jeffrey Miron’s studies on the subject suggest that “higher levels of enforcement reduce the size of the black market and higher levels of enforcement disrupt contractual arrangements and destroy reputational capital, thus increasing the level of violence for a black market of a given size.”60 These higher levels of enforcement prevent certain illicit contracts from being completed, which heighten tensions and friction among different power players in the drug market. Overall, the regions’ militaries should stick to defending national borders and leave domestic policing functions to the regions democratic processes. The attempts at militarization have been detrimental to Latin America overall and the strategy should end. Alternatives to Militarization The first step to a clearheaded drug policy is returning the ability to set drug policy to sovereign nations. The regime of international drug prohibition has failed, and countries that understand this should not be held hostage by countries who dogmatically insist on repeating the same failed path. Insisting that countries abide by a failed 20th century mindset regarding drug enforcement will not be feasible in the 21st century. A change in approach, away from prohibition was demonstrated with the 2013 Global Commission on Drug Policy recommendation for “the decriminalization of users and experimenting with legal regulation.”61 This is certainly one path forward which would distance itself from the failed policies of the past in Latin America. Public opinion reflects this throughout the world, with perceptions of drug enforcement and drugs themselves shifting against prohibition. Domestically, drug prohibition is becoming less important to the American public but it is just as important to “committed drug warriors who are politically powerful.”62 Nevertheless, it is high time for the political process to seek a Ibid. Villagran, Lauren. "No More Drug War in Latin America? Report Explores New Ways to Fight Drugs." The Christian Science Monitor (Boston, Mass.), May 17, 2013. 62 Shear, Michael, and Randal Archibold. "In Latin America, U.S. Focus Shifts From Drug War to Economy." New York Times (1923-Current File) (New York, N.Y.), May 05, 2013. 60 61


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rational solution to the problems inherent in prohibition instead of attempting to please the vocal minority of drug prohibitionist dogmatists. Another way to step away from a militarized drug war policy is for American aid to be moved away from the Department of Defense and towards the Department of State; the Department of State has more accountability measures in place to prevent the resources from being exploited by some of the region’s serial human rights abusers. United States military officials have long claimed that human rights training is a core part of their assistance, however training is different from practice and many times there is little “political will” for human rights-related reforms.63 Relatedly, the Department of Defense has shown a reluctance to enforce such restrictions and has applied at best “cursory” screenings of human rights violations for aid recipients.64 Aid should be geared towards empowering the regions civilians not militaries, and the Department of Defense is not well suited for this goal. An emphasis on economic development, instead of “endless battles against drug traffickers and organized crime capos that have left few clear victors”, in Latin America would also be beneficial.65 Some scholars have suggested that the “main cause of the development” of the illegal drug industry in some parts of Latin America is the lack of economic alternatives available in rural areas.66 A shift towards sustainable development rather than perpetual warfare with traffickers was supposed to begin under Barack Obama’s government but the reforms did not go nearly far enough. An emphasis on a demand-side reduction in the drug market at home may also be fruitful in a manner that would not be

Zirnite, Peter. "The militarization of the drug war in Latin America." Current History 97 (1998): 166. 64 Amatangelo, Gina. "Militarization of the U.S. Drug Control Program." Foreign Policy in Focus 6, no. 16 (2001): 1. 65 Shear, Michael, and Randal Archibold. "In Latin America, U.S. Focus Shifts From Drug War to Economy." New York Times (1923-Current File) (New York, N.Y.), May 05, 2013. 66 Cabañas, Miguel A. "The Global Drug Trade and the War on Drugs in the Americas." Latin American Perspectives 41, no. 2 (2014): 232-35. 63


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harmful to countries abroad.67 Ex-Secretary of Defense Donald Rumsfeld summarized this well when he stated that “the drug problem is probably overwhelmingly a demand problem… if demand persists, it’s going to find ways to get what it wants, and if it isn’t from Colombia, it will be from somewhere else.”68 In this arena there must be efforts made to educate the public about the health and societal implications of drug consumption in drug consuming nations, rather than demonizing consumption and pushing it underground. The Obama administration probed this idea, coining it “shared responsibility” and emphasizing the importance of reducing use domestically in order to reduce demand.69 Conclusion The reality is that drug alarmism must end. It is not productive to call drugs “weapon[s] of mass destruction” as U.S. Southern Command has, but rather we must treat drugs as the public health and personal responsibility issue they represent.70 Ending the drug war through either legalization or decriminalization are the two long-term solutions to the international crisis of drug violence. There exist contemporary examples of nations taking steps in the right direction such as Portugal and the Netherlands. Even within Latin American there is the contemporary example of Uruguay legalizing marijuana.71 These countries have moved towards decriminalization on the spectrum of global drug prohibition and have seen positive results in terms of decreased drug deaths and improved societal conditions.72

Youngers, Coletta, and Eileen Rosin, eds. Drugs and democracy in Latin America: The impact of US policy. Lynne Rienner Publishers, 2005. 68 Amatangelo, Gina. "Militarization of the U.S. Drug Control Program." Foreign Policy in Focus 6, no. 16 (2001): 1. 69 Ayuso, Silvia. "FEATURE: US-Latin America Relations Defined by Drug War." McClatchy - Tribune Business News (Washington), November 23, 2011. 70 Youngers, Coletta, and Eileen Rosin, eds. Drugs and democracy in Latin America: The impact of US policy. Lynne Rienner Publishers, 2005. 71 Miroff, Nick. “In Uruguay’s Marijuana Experiment, the Government Is Your Pot Dealer.” The Washington Post, WP Company, 7 July 2017. 72 Frayer, Lauren. “In Portugal, Drug Use Is Treated As A Medical Issue, Not A Crime.” NPR, NPR, 18 Apr. 2017. 67


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While drug use may not be normatively desirable, drug prohibition does not prevent or lessen drug use. What drug prohibition does accomplish is a decay of civil liberties, an increase in violence, and the creation of large illicit operations to fulfill the government imposed constraints on demand. Militarization does not offer a solution to these perennial problems of the drug war, but rather it exacerbates them. Latin America is the world’s most violent region, in part because of the drug war and its related activities. The drug war has stifled growth, corrupted societal institutions, and debilitated democratic institutions and it is not a sustainable approach for the future. Ultimately, militarization is little more than another red herring solution for the drug war. Militarization efforts attempt to address the symptoms of a structural corruption that is fomented by drug prohibition itself. The underlying problem that must be addressed is drug prohibition, and the failed drug war that attempts to enforce it. World officials must recognize the futility and the costs, both explicit and implicit, of the drug war’s attempted “assault on the law of supply and demand.”73 Until official international and national stances on drug prohibition change, there is no Band-Aid solution for the problems it causes.

"Leaders: The Turmoil down South; Latin America." The Economist 369, no. 8348 (2003): 17-16. 73


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ARTICLE 93: HUMAN RIGHTS AND CONTEMPORARY US-EGYPT RELATIONS ADAM MOHSEN-BREEN STAFF WRITER

The Egyptian government has often been criticized for human rights abuses. These abuses remain especially significant considering the uniqueness of Article 93 of the 2014 Egyptian Constitution. The article, regarding international conventions and treaties, bucks constitutional convention with regard to these treaties. As such, this essay will analyze the actions of the government in terms of relevant international law ratified by Egypt, which the Egyptian government has explicitly agreed to hold itself accountable to through its recent Constitution. This analysis will center upon recent, documented cases that have garnered concern for their potential disregard for basic human rights, including the freedom of expression, freedom of assembly, and rejection of torture.

On the evening of September 30, six Egyptians unfurled a rainbow flag amidst a sold-out crowd for the Lebanese band Mashrou’ Laila in Cairo. The flag, a symbol for tolerance and support for lesbian, bisexual, gay, and transgender individuals, quickly circulated around the social media accounts of individuals attending the concert. Upon exiting the concert doors, the six individuals were detained by Egyptian security forces, imprisoned, and given a trial date on charges of “sexual deviancy” and “debauchery.”1 These individuals, despite the outcries of prominent Egyptian and international NGOs, as well as criticism from United Nation Human Rights Committees, remain

Aboulenein, Ahmed, and Additional Haitham Ahmed;. "Egypt "hunting down" gays, conducting forced anal exams - Amnesty." Reuters. September 30, 2017. Accessed October 31, 2017. https://www.reuters.com/article/us-egypt-rights/egypthunting-down-gays-conducting-forced-anal-exams-amnesty-idUSKCN1C50D3. 1


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imprisoned and await trial.2 Mashrou’ Laila, whose lead singer, Hamed Sinno, is openly gay, was banned from performing in Egypt again in the future. This case is not an isolated incident; since former Defense Minister Abdel Fattah El-Sisi’s ascension to the presidency in Egypt following the 2013 military coup that ousted democratically-elected president Mohammed Morsi, his regime has been consistently criticized by the international community for blatant violations of human rights, including the August 2013 mass shooting of civilians in Rabaa al-Adawiya square during anti-government protests, a crackdown on news and media outlets, and the imposition of strict limits on civil society groups and NGOs.3 Indeed, the arrests following the Mashrou’ Laila concert merely constitute one part of the larger constellation of human rights abuses and flouting of international law that have long been a part of Egyptian public life, but have continued unchecked under Sisi’s regime. These violations are especially significant from an international law perspective due to a unique article of the 2014 Egyptian Constitution adopted following Sisi’s assumption of the presidency. This article, Article 93, regarding international conventions and treaties, bucks constitutional convention with regard to these treaties, by explicitly stating: “The state is committed to the agreements, covenants, and international conventions of human rights that were ratified by Egypt. They have the force of law after publication in accordance with the specified circumstances.”4 In effect, rather than requiring legislation for such conventions to take effect, Article 93 unambiguously grants international conventions and treaties the explicit force of Egyptian domestic law.5

Worley, Will. "Egypt 'to conduct anal examinations on men accused of waving rainbow flag at Cairo pop concert'." The Independent. September 30, 2017. Accessed October 31, 2017. https://www.independent.co.uk/news/world/africa/egypt-anal-examinationsrainbow-flag-mashrou-laila-lgbt-rights-a7975756.html. 3 Sharp, Jeremy M. "Egypt: Background and U.S. Relations." Congressional Research Service, March 24, 2017. 4 "Egypt's Constitution of 2014." Constitute Project. June 6, 2017. Accessed October 10, 2017. https://www.constituteproject.org/constitution/Egypt_2014.pdf. 5 "Human Rights Treaties in Egypt: as Good as the Government that Upholds Them." The Tahrir Institute for Middle East Policy. Accessed October 31, 2017. 2


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As such, we can analyze the actions of the Sisi regime in terms of relevant international law ratified by Egypt, which the Egyptian government has explicitly agreed to hold itself accountable to through its recent Constitution. This analysis will center upon recent, documented cases that have garnered concern for their potential disregard for basic human rights, including the freedom of expression, freedom of assembly, and rejection of torture. First, it is important to explore how these dynamics have played out with respect to recent regime action in the digital space, which has garnered disapproval from major international bodies. This repressive approach is particularly significant considering the growing importance of digital format news media throughout the Arab world, including Egypt; in large part due to the ubiquity of social networks allowing for rapid dissemination of information, which repressive regimes such as Egypt’s have become increasingly wary of. Specifically, the UN Special Rapporteurs on freedom of expression and on human rights and counterterrorism, which issued a joint statement in August 2017, criticizing the recent large-scale blocking of news websites that the Sisi regime considered to be “spreading lies.”6 Such international action has been fruitless in altering the regime’s stance on digital privacy. Since the publication of the UN report, over 121 news websites had been blocked, including the websites of respected news organizations such as MadaMasr and HuffPost Arabi and websites of international NGOs such as Human Rights Watch and Reporters Without Borders.7 This media censorship is hardly surprising considering the regime’s repressive attitude towards journalists and NGOs, who are frequently muzzled and prosecuted for disseminating anti-regime content. In addition, Egypt’s security apparatus is technically sophisticated and

https://timep.org/analysis/human-rights-treaties-in-egypt-as-good-as-thegovernment-that-upholds-them/. 6 "UN Human Rights Council statement slams Egypt website blocks." ‫ﻣﺪى ﻣﺼﺮ‬. Accessed October 31, 2017. https://www.madamasr.com/en/2017/08/31/news/u/unhuman-rights-council-statement-slams-egypt-website-blocks/. 7 OHCHR | Egypt extends its assault on freedom of expression by blocking dozens of websites – UN experts warn. Accessed October 31, 2017. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22008&L angID=E.


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competent, due to its extensive experience in counterterrorism and cooperation with foreign militaries.8 While these tools were originally intended to help the regime in its battle against terrorism, they can easily be deployed less discriminately against lawful opponents of the regime through digital media, thereby amplifying the government’s repressive policies. With regard to relevant international conventions and treaties, Egypt’s actions have run directly counter to its signed commitments, including specifically the African Charter on Human and Peoples’ Rights, ratified by Egypt in 1981. This Charter, specifically in Article 9, states that: “Every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law.”9 This commitment, which Egypt has agreed to hold itself subject to, would ostensibly prevent the Egyptian government from depriving lawful media outlets from disseminating opinions, however damaging those opinions may be to the regime. Indeed, the UN Special Rapporteurs affirmed that such blocking of news media constitutes an unlawful deprivation of basic information in the public interest, complementing the broader trend in Egypt of journalistic repression under Sisi.10 A second front meriting investigation on legality with regard to international conventions is the recent regime actions with regard to “sexual deviancy” and “debauchery”, commonly understood and employed in the Egyptian government to be a euphemism for homosexuality11. Most recently, this has played out in the context of the detentions of six individuals suspected of unfurling a rainbow flag at a pop concert in Cairo. Their actions led all six to undergo forced anal exams, and to stand trial for

"Strengthening the U.S.-Egyptian Relationship." Council on Foreign Relations. Accessed October 31, 2017. https://www.cfr.org/report/strengthening-us-egyptianrelationship. 9 "African Charter on Human and Peoples' Rights." ACHPR. Accessed October 31, 2017. http://www.achpr.org/instruments/achpr/. 10 OHCHR | Egypt extends its assault on freedom of expression by blocking dozens of websites – UN experts warn. Accessed October 31, 2017. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22008&L angID=E. 11 Aboulenein, Ahmed, and Additional Haitham Ahmed;. "Egypt "hunting down" gays, conducting forced anal exams - Amnesty." Reuters. 8


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“sexual deviancy” and “debauchery.”12 While homosexuality is not explicitly illegal in Egyptian law, much of Egyptian society is deeply conservative, and crackdowns on individuals suspected of homosexuality have longstanding precedent in Egypt, with security forces under multiple Egyptian regimes conducting brutal crackdowns on the LGBTQ community.13 Indeed, the Sisi regime has brutally repressed public displays of tolerance or acceptance of the LGBTQ community, albeit with support by some constituencies in society, most notably the religious establishment, who expressed support for the detainment and prosecution of the individuals associated with the rainbow flag at the Mashrou’ Laila concert.14 This worrying trend, again, runs directly counter to the covenants of human rights and civil liberties that Egypt has ratified and agreed to be subjected to, on a variety of fronts. Primarily, the International Covenant on Civil and Political Rights, signed and ratified by Egypt in 1982, specifically protects individuals from persecution based on status: “Each State Party...undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized...without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”15 This provision explicitly protects individuals from discrimination based on “status”, which would include circumventing normal criminal procedure for the pursuit of individuals believed to be homosexual. Therefore, the Egyptian government’s campaign against homosexuality is explicitly illegal according to international law, and thus, through the Egyptian constitution, illegal according to Egyptian domestic law as well. In a similar manner, forcing detained individuals suspected of “sexual deviancy” or “debauchery” to undergo invasive anal exams by Egyptian authorities is illegal according to the same convention.

Worley, Will. "Egypt 'to conduct anal examinations on men accused of waving rainbow flag at Cairo pop concert'." The Independent. 13 Ibid. 14 Ibid. 15 OHCHR | International Covenant on Civil and Political Rights. Accessed October 31, 2017. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx. 12


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Article 7 states that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”16 These violate international treatises regarding the use of torture, as they cannot be fully consented to and have no medical justification.17 One final component of Egypt’s policies to consider with regard to international law is the regime’s treatment of protesters, particularly with regard to the array of protests that occurred across Egypt in April 2016. At these protests, Egyptian police forces used tear gas and use of force to disperse peaceful protesters, and arrested over 380 protesters and journalists. Protesters were also subject to forced seizures of cell phone and inspections of social media accounts for any posts deemed to be anti-government.18 UN human rights experts, reporting on these events, called on Egyptian authorities to take active steps to encourage the right to freedom of expression and assembly, rather than curtailing public freedoms. These actions again run directly counter to Egypt’s commitments as stipulated by Article 21 of the International Covenant on Civil and Political Rights, which provides for the freedom of peaceful assembly among ratifying states. “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”19 While this article is couched in provisions regarding national security, United Nations human rights observers have repeatedly emphasized that attempts by the Egyptian government to characterize such curtailing of civil liberties in the name of national security or counterterrorism measures are not legitimate in the face of international law, particularly in cases where they Ibid. Worley, Will. "Egypt 'to conduct anal examinations on men accused of waving rainbow flag at Cairo pop concert'." The Independent. 18 "Egypt: UN experts report worsening crackdown on protest." UN News Center. May 09, 2016. Accessed October 31, 2017. http://www.un.org/apps/news/story.asp?NewsID=53886. 19 OHCHR | International Covenant on Civil and Political Rights. 16 17


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override the freedom of expression and assembly20. Further, the illegal search and seizure of social media accounts, and the muzzling of critical journalists, runs far beyond what would be prudent and necessary with respect to national security concerns. However, these descriptions of the Sisi regime from United Nations committees and other international organizations have not discouraged the current United States administration from painting Egypt as an ally and bastion of stability in the Middle East. Official statements from the Trump White House have praised Sisi’s counterterrorism efforts. The current administration has praised Egypt as a voice for moderation, peace, and as a means for advocation of US interests in various international and regional bodies—with particular attention paid to Egypt’s relatively friendly relations with US-allied Israel.21 This discourse, however is not merely a question of harmless rhetoric. As Egypt’s most important international partner, and the arbiter of many areas of Egyptian domestic and foreign policy, the United States possesses an outsized ability to influence regime’s actions. Indeed, the United States has the ability to pressure the regime to accept more democratic measures, respect human rights of its citizens to a greater extent, and facilitate the lifting of sanctions on a severely restricted press. Thus, such a significant alliance warrants an examination of the relationship between the two nations, and the prospects for this relationship to improve the Sisi regime’s respect for human rights. The reason for America’s seemingly-dissonant discourse can be traced back via the extensive history of US-Egypt cooperation, on a variety of fronts, since the establishment of the modern Egyptian nation-state in the mid-20th century. Thus, before analyzing contemporary trends in the Egyptian relationship with the US, it is first necessary to orient this discussion in the larger historical context of the longstanding relationship between the two nations.

"Egypt: UN experts report worsening crackdown on protest." UN News Center. Elmenshawy, Mohamed. "Sisi's visit to the US: The hopes and the reality." USA | Al Jazeera. April 03, 2017. Accessed October 31, 2017. http://www.aljazeera.com/indepth/opinion/2017/04/sisi-visit-hopes-reality170403091805035.html. 20 21


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Since Egypt’s 1952 military coup, which ousted Britishsupported King Farouk and replaced him with Egypt’s first president, the outspoken Arab-nationalist Gamal Abdel Nasser, Egypt has played an important role in advancing US foreign policy interests in the Middle East.22 This role is primarily due to Egypt’s position as an economic and cultural hub in the region, as well as its status as the region’s most significant Arab military power. Cairo has also long been an intellectual capital of the Arab world, with universities such as Al-Azhar and Cairo University historically drawing students from across the Arab world, as well as the majority of popular Arab films and music being produced in Cairo. As a result, Egypt has historically carried outsize influence in regional bodies, with respect to its ability to influence the positions of its Arab counterparts on economic, political, social, and cultural levels. It is during this period under Nasser that the United States began to exert its influence on the course of Egyptian history, and where the historical trajectories of the two nations become intertwined. It started when Nasser nationalized the Britishcontrolled Suez Canal, a critical trade route for European powers, which spurred a surprise invasion by the British, French, and Israeli militaries in 1956. This invasion, however, was only stopped by immense economic and diplomatic pressure exerted by the United States. While the US primarily took this action with an eye towards Cold War concerns, US protection of the extremely popular Nasser was important in defining the position of the US as a future partner of Egypt.23 These events laid the foundation for Egypt’s eventual role as a singularly significant conduit of US foreign policy interests in the Middle East under Nasser’s more pro-Western and USfriendly successor, President Anwar Sadat, who was elected following Nasser’s death in 1969. Following the resumption of normal diplomatic relations between the two states in 1974 under Sadat, Egypt played a crucial role in the US-brokered 1979 landmark peace deal between Egypt and Israel, called the Camp David Accords, which made Egypt the first Arab nation to agree

22 23

Sharp, Jeremy M. "Egypt: Background and U.S. Relations." Ibid.


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to recognize the Israeli state, and took the largest and most influential Arab state out of the equation of peace negotiations between the Arab states and Israel.24 This agreement was preceded by such landmark events as the Egyptian president visiting holy landmarks in Israel, as well as making an impassioned speech to the Israeli Knesset on the importance of cooperation and peace between the two countries, which left behind a legacy of cooperation between the two nations for the subsequent decades.25 Thus, Egypt played a significant role in solidifying Israel’s position as a legitimate and recognized state in the region, thereby furthering the regional interests of the United States. This relationship continued to be beneficial to United States interests, particularly from a military perspective, throughout the reign of Hosni Mubarak, Sadat’s successor. Egypt’s role as the most significant Arab military power, and second-largest military in the Middle East behind Israel, made it the focus of US military collaborations in the region. This close military relationship played an important role in President George H.W. Bush’s Operation Desert Storm, which liberated Kuwait from an Iraqi invasion and occupation in 1990-91. In this US-led effort, the Egyptian military comprised a significant contingent of US-allied forces in the mission, and Egypt facilitated strategic support for US actions in the region.26 The United States and Egyptian militaries have also collaborated closely on matters of counterterrorism and security, due to Egypt’s strategic location and relatively well-developed security apparatus. This relationship has remained strong, particularly following the terrorist attacks on US soil in 9/11, which has led to a blossoming Collins, Victoria E., and Dawn L. Rothe. "United States Support for Global Social Justice? Foreign Intervention and Realpolitik in Egypt's Arab Spring." Social Justice 39, no. 4 (2014). Accessed November 1, 2017. http://www.jstor.org.ezpprod1.hul.harvard.edu/stable/pdf/24361620.pdf?refreqid=search:22c538418982db03 f7a7f8c1a3a40143. 25 "Egypt-Israel Relations." Address by Egyptian President Anwar Sadat to the Knesset. Accessed November 01, 2017. http://www.jewishvirtuallibrary.org/address-by-egyptian-president-anwar-sadat-tothe-knesset. 26 "U.S. Military Aid to Egypt:." U.S. Military Aid to Egypt: - Assessment and Recommendations - The Washington Institute for Near East Policy. Accessed November 01, 2017. http://www.washingtoninstitute.org/policy-analysis/view/u.s.military-aid-to-egypt-assessment-and-recommendations. 24


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of counterterrorism cooperation and close military collaboration throughout the 2000s.27 Given this historical consideration of US influence and involvement in Egyptian affairs, and analysis of trends in the current regime’s respect for the human rights of its citizens, what are the prospects for such conduct to continue? Further, what role, if any, will the US play in this process as an historic ally of Egypt with a rhetorical interest in promoting democracy and improving civil liberties throughout the world? In order to address this question, I will analyze the contemporary trajectories of the US-Egypt relationship, in order to predict the prospects for continued human rights violations in Egypt. The United States plays an important role in influencing Egyptian policy decisions and international action, primarily post-1979, because Egyptian presidents have largely taken cues from their American counterparts in determining major policy decisions. The two countries are closely linked, through economics, military cooperation, and diplomatic relations. Thus, an analysis of contemporary trends in the US-Egypt relationship can be fruitful in determining the trajectory of Egyptian actions in the future. First, the US and Egypt have a longstanding economic relationship, which Egypt relies on for the development of its security apparatus, as well as significant trade considerations between the two countries. Economically, Egypt and the United States have a well-established trade relationship, with the US being responsible for about 5% of Egypt’s imports and exports. Moreover, Egypt has been the largest recipient of US aid in the Middle East, behind Israel, with Egypt receiving approximately 1.5 billion dollars annually in aid from the United States.28 This economic support from the US has remained prominent since Egypt’s peace agreement with Israel in the 1977 Camp David Accords, despite regime change. The US has also been influential in securing World Bank loans for Egypt, largely under the Sadat

Collins, Victoria E., and Dawn L. Rothe. "United States Support for Global Social Justice? Foreign Intervention and Realpolitik in Egypt's Arab Spring." 28 Egypt | United States Trade Representative. Accessed November 01, 2017. https://ustr.gov/countries-regions/europe-middle-east/middle-east/northafrica/egypt. 27


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and Mubarak regimes, which allowed the country to develop its infrastructure and move from a poor nation to a lower middleclass nation.29 These economic considerations are significant when analyzed in conjunction with military considerations in the country, given the symbiotic relationship between the nation’s security concerns and its receipt of aid from the United States. Thus, a second factor to consider in analyzing the potential ramifications of a closer relationship between Egypt and the US is the close collaborative military relationship between the two nations, which has historically secured US foreign policy interests in the Middle East. As the Council of Foreign Relations reported in 2002, Egypt is a powerful stabilizing force for US interests in the Middle East, and has secured support among Arab states for US operations in the region.30 For example, the Egyptian military contingent in Operation Desert Storm formed a substantial part of the successful US-led coalition; the Egyptian military’s cooperation with the US’ objectives of peace with Israel since 1979 has also allowed for the perpetuation of US security objectives in the region. In addition, the joint US-Egyptian military biennial exercise held in Egypt, Operation Bright Star (the last one held in 2009 due to political strife in Egypt), underscores the degree to which the Egyptian military and United States demonstrate their foreign policy cooperation to other regional powers, showcasing US dominance through deterrence.31 In addition, cooperation has continued to snowball as the Egyptian security apparatus ruthlessly engages in the pursuit of Islamic insurgents, which only furthers US counterterrorism objectives in the Middle East. In recent years, Egypt has been battling a terrorist insurgency in its North Sinai region, with a state of emergency declared and hundreds of Egyptian military casualties as a result of insurgent attacks.32 However, the efficacy of the Egyptian military in this conflict is far from certain. With the Islamic State-affiliated Sinai Province organization conducting regular deadly attacks on police bases and Collins, Victoria E., and Dawn L. Rothe. "United States Support for Global Social Justice? Foreign Intervention and Realpolitik in Egypt's Arab Spring." 30 "Strengthening the U.S.-Egyptian Relationship." Council on Foreign Relations. 31 Sharp, Jeremy M. "Egypt: Background and U.S. Relations." 32 Ibid. 29


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checkpoints, and a recent Congressional Report questioning the efficacy of the Egyptian military in the conflict, US defense experts agree that the Egyptian military needs significant updates to its equipment in order to properly combat the Sinai insurgency. Finally, since 1979, Egypt has played an important role in maintaining peace with Israel along with close communication between the two countries’ militaries to discuss issues regarding defense and security. While diplomatic relations can be decidedly cold between the two countries, their strategic interests are largely analogous in terms of military cooperation, and large US foreign aid to both countries serves to uphold the regional balance of power with these two countries at the forefront of military powers in the region.33 In terms of the Trump administration, their preoccupation with the Arab-Israeli conflict could make this military relationship with Egypt even more pivotal to their foreign policy goals. Finally, it is important to consider the Trump administration’s decision thus far to signal a decline in the consideration of human rights abuses in determining US support for foreign regimes. Despite his documented human rights abuses, Sisi enjoyed a public show of support from President Trump during his visit to the White House on April 3, 2017, with Trump lauding Sisi’s counterterrorism efforts and role as an American partner for stability in the region.34 Already, the Trump administration has cozied up to President Sisi with a flurry of diplomatic exchanges occurring in the months since President Trump’s election—largely ignoring the grave human rights abuses.35 This commitment under military grounds was further demonstrated by the statements made by U.S. Central Command (CENTCOM) Commander General Joseph L. Votel during his February 2017 visit to Egypt, where he committed to restarting Operation Bright Star and strengthening the military bond between the two countries.

Ibid. Thuffman. "Why Egypt's Sisi welcomes Trump win." Al-Monitor. November 11, 2016. Accessed November 01, 2017. https://www.almonitor.com/pulse/fr/contents/articles/originals/2016/11/egypt-reacts-us-electiontrump-sisi.html. 35Sharp, Jeremy M. "Egypt: Background and U.S. Relations." 33 34


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However, this political showmanship has not translated into tangible improvements for Egypt in the US-Egypt relationship, with funding for Egypt being left out of Trump’s proposed 2018 budget, despite a 3.1 billion dollar commitment outlined for the US’ other partner, Israel.36 In addition, the Trump administration has made no indication thus far that it will modify or lift the Obama-era military aid limitations, which make it difficult for Egypt to make large-scale military purchases and eliminate purchasing military equipment on credit. These trends do not neatly fit into a narrative of cultivating a position of regional prominence for Egypt, and appear as if Trump’s rhetoric may not square with his actions in practice. Finally, Rex Tillerson’s State Department has still left vacant the majority of its senior posts, with the Trump administration not even submitting a nominee for a number of the positions, and with an unprecedented exodus of diplomats leaving the US State Department.37 This could have myriad ramifications on the ability for the US to manage a relationship with Egypt, particularly due to the complexities of cooperating with a significant regional power and contending with Obama-era policies that have caused some tensions with the Sisi regime. In addition, the growing prominence of North Korea in the national and international discourse illustrates the changing complexion of the global landscape, with the Middle East perhaps losing some of its previous importance in global affairs due to the existential threats posed by nuclear powers such as North Korea and Iran, who Trump has focused on throughout the campaign trail and early days of his administration. These factors indicate that human rights abuses will likely continue in Egypt, barring a significant change in the domestic and international conditions permitting this behavior. Sisi has not, thus far, been deterred from his repressive actions by the prospect of violating international law, and has been able to Elmenshawy, Mohamed. "Sisi's visit to the US: The hopes and the reality." USA | Al Jazeera. 37 Steinberg, Nik, Rikha Sharma Rani, Virginia Heffernan, and Edward-Isaac Dovere. "Rex Tillerson Is Running the State Department Into the Ground." POLITICO Magazine. October 04, 2017. Accessed November 01, 2017. https://www.politico.com/magazine/story/2017/10/04/rex-tillerson-is-running-thestate-department-into-the-ground-215677. 36


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continue unpunished by the international community, while maintaining the support of American leaders. In addition, US interests do not appear to align with a strong shift in policy towards effecting major changes in the Sisi regime’s attitude towards the human rights of its citizens. Instead, given the current trajectory of this relationship, the Trump administration is likely to favor the stability in Egypt offered by Sisi’s repressive policies, rather than arguing for a potentially dangerous opening of the Egyptian public sphere. For the protesters detained following the Mashrou’ Leila concert, this trajectory means a likely jail sentence and further legal action, with prospects for change in the regime’s ability to police such activities unlikely in the foreseeable future. Indeed, while Sisi’s regime pays lip service to democratic values and a respect for international codes of law, the regime’s actions lag significantly behind such lofty rhetoric. However, it appears that for the United States, it’s better to have an ally that oppresses than no ally at all.


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LAWS PROMOTING INJUSTICE: HOW THE LEGAL DEFINITION OF “CITIZEN” ENABLES MYANMAR’S ROHINGYA CRISIS SOFIA IVANKA OCHOA STAFF WRITER

In Myanmar, the ethnic cleansing and extreme maltreatment of the Rohingya minority is currently underway. While the general public and humanitarian organizations are focusing on the international law and human rights dimensions of the crisis, this essay will instead focus on Myanmar’s domestic laws which allow this ethnic cleansing, mass migration and extreme maltreatment to occur with virtually no legal consequences. Under the Citizenship Law of 1982, the Rohingya Muslims are not automatically granted citizenship and Myanmar’s constitutional amendment which provides freedom of religion does so only for citizens. This article will evaluate these statutes and the other ways in which Myanmar laws discriminate against this ethnic minority and subject them to abuses citizens are otherwise protected from under the nation’s constitution.

We assume that the law will support justice. Yet, there are times in which the law might be the very obstacle not only preventing justice, but also promoting iniquity. This is the case in Myanmar, where the ethnic cleansing and extreme maltreatment of the Rohingya minority is currently taking place, but truly has taken place at least since 1982. While the general public and humanitarian organizations are focusing on the international law and human rights dimension of this crisis, we should instead focus on Myanmar’s domestic laws which allow this ethnic cleansing, mass migration and extreme maltreatment to occur with virtually no legal consequences. That is, although Myanmar’s 2008 Constitution would make such actions towards citizens of Myanmar illegal, the Citizenship Act of 1982 does not


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include the Rohingya as citizens, and therefore the 2008 Constitution does not protect them. The Rohingya genocide, as Bangladeshi politician Abul Hassan Mahmud Ali refers to the crisis, is something that has been going on for a long time.1 The earliest report by Human Rights Watch of a severe and concerted effort by the Myanmar government to remove the Rohingya was made in 2008. 2 On the other hand, the first reference to these actions as ‘ethnic cleansing’ was not until 2012.3 Systematic discrimination, however, is documented from at least 1942 when Myanmar achieved independence from the British4 and it has increased since the independence of Myanmar. This year, the world has finally taken more notice and called it for what it is: Zeid Ra'ad al-Hussein, the human rights chief of the United Nations, called on the Myanmar government “to end its current cruel military operation, with accountability for all violations that have occurred, and to reverse the pattern of severe and widespread discrimination against the Rohingya population.” The situation seems to be a textbook example of ethnic cleansing.5 Only this year, due to the burning of hundreds of Rohingya villages, more than 500,000 Rohingya have had to migrate to Bangladesh.6 Crossing the border with Bangladesh also brings myriad risks, from unmarked land mines to unsafe conditions making them susceptible to heinous acts such as starvation7 and rape.8

Michael Safi, “Myanmar treatment of Rohingya looks like 'textbook ethnic cleansing', says UN, The Guardian, September 11, 2017, https://www.theguardian.com/world/2017/sep/11/un-myanmars-treatment-ofrohingya-textbook-example-of-ethnic-cleansing 2 Human Rights Watch, Burma: End Abuses Against Rohingya, May 25, 2009, https://www.hrw.org/news/2009/05/25/burma-end-abuses-against-rohingya 3 Human Rights Watch, Burma World Report: Events 2016, https://www.hrw.org/world-report/2017/country-chapters/burma 4 Human Rights Watch, “Burma: II. Historical Background,” Human Rights Watch 12, no. 3: May 2000, https://www.hrw.org/reports/2000/burma/index.htm 5Safi, “Rohingya ‘Textbook Ethnic Cleansing’.” 6 Eleanor Albert, “The Rohingya Crisis”, Council on Foreign Relations, October 04, 2017, https://www.cfr.org/backgrounder/rohingya-crisis 7 Anadolu Agency, “Starvation will cause new fleeing of Rohingyas”, Yeni Safak, October 08, 2017, http://www.yenisafak.com/en/world/starvation-will-cause-newfleeing-of-rohingyas-2795316 8 Feliz Solomon, “Rohingya Women 'Raped at Gunpoint' in Burma Army Sweep for Suspected Jihadists, Report Says”, Time, October 28, 2016, http://www.time.com/4548834/rohingya-burma-myanmar-suu-kyi-maungdaw-rape/ 1


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Realizing the severity of the abuse and oppression occurring in Burmese dominion, the next step would be searching for some way of preventing the human rights anarchy we see here. That place is the Constitution of Myanmar. The most recent constitution was ratified in 2008 under the military government, during the nation’s “democratic transition phase”. This constitution has an amendment towards the right to “freely profess and practice religion subject to public order…” 9 This is true even though the constitution declares Buddhism as the official religion of its people, while recognizing Christianity, Islam, Hinduism, and Animism as other religions practiced by its people. If this is the case, the question of how these human rights, along with apparent constitutional violations, are still systematically occurring in Myanmar to a group of about 1.1 million people—and with no repercussions—remains. The right to freedom of religion is a statement heard often by many people around the world in their respective communities. The United States, for example, has in its constitution an amendment recognizing the freedom of religion. The European Union also has a similar provision: Article 9 of the European Convention on Human Rights (ECHR), which recognizes the same right. However, there is one critical yet small difference when it comes to Myanmar’s constitution and the amendment which provides freedom of religion., The small difference is one word, citizen. In the ECHR, the word used in referring to the people the right applies to is “everyone”, not “citizen” or “European”, just “everyone”. 10 In the U.S. amendment, the word used is “the people”, which could be debatable to whom it is referring to, at least until 2008 when the supreme court in District of Columbia vs. Heller case quoted the U.S. vs. VerdugoUrquidez case in 1990 - stating “persons who are part of a national community” adding “all members of the political

Constitution of the Republic of the Union of Myanmar (2008) Available at: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=79572&p_classificat ion=01.01 10 European Convention on Human Rights, Section 1, Available at: http://www.hrcr.org/docs/Eur_Convention/euroconv3.html 9


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community.”11 In relation to Myanmar, the word they use, in the entirety of their constitution- referring to rights and duties- is “citizen”. The exact wording in the constitution is, “Every citizen is equally entitled to freedom of conscience and the right to profess and practice religion…”12 Then, who is the “citizen”? This is not answered in their constitution. To know whom the rights applies to, we need to look into another law, that being specifically the Citizenship Law of 1982. Myanmar has been a British colony, a military dictatorship, and is now a parliamentary democracy. To give a brief background, during the British colonization, beginning in 1885, was when “the British oversaw the immigration of thousands of predominantly Muslim Bengali Indians as cheap labor to support the expansion of the colonial economic infrastructure”.13 This is often used in Myanmar as a fact to claim that the Rohingya are a new population in Burma, when there has actually been a presence of a Muslim ethnic minority in the territory before British colonization, which had its own kingdom in Rakhine State called Mrauk-U.14 All of the territories were united under British colonization in 1824, and Burma was at the time considered as a province of British India, adding Muslims already in that area to the Burmese territory. Additionally, there was a surge of Muslim immigration from India around the same time, due to, once again, British colonization.15 Therefore, all of the mobility of the Rohingya minority was considered internal movement, but the Burmese (of Buddhist majority) after independence thought otherwise.16 This historical context proves itself extremely important when examining the Citizenship Law of 1982. In Chapter II, titled “Citizenship”, the law no.3 states that nationals including the

“The Meaning(s) of ‘The People’ in the Constitution”, Harvard Law Review Vol. 126, no. 4, February 2013, https://harvardlawreview.org/2013/02/the-meanings-ofthe-people-in-the-constitution/ 12 Constitution of the Republic of the Union of Myanmar (2008) 13 Religious Divinity Project, “Myanmar Country Profile”, Harvard Divinity School, 2016, Available at: https://rlp.hds.harvard.edu/myanmar 14 Human Rights Watch, Historical Background 15 Omair Anas, “The colonial world order is responsible for the Rohingya crisis”, Daily Sabah, September 15, 2017, https://www.dailysabah.com/oped/2017/09/15/the-colonial-world-order-is-responsible-for-the-rohingya-crisis 16 Human Rights Watch, Historical Background 11


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Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine, or Shan and any other ethnic group that has been in Myanmar as permanent residents from any time before 1823 are naturally and automatically Burmese citizens.17 This is a huge problem. As addressed before, the addition of the Muslim minority into what was considered Burma, due to new borders and an additional influx of immigration, wasn’t until after 1824, and additional displacement to Burma continued occurring at a large scale until 1885. Under the Burmese law, the Rohingya Muslims who have been living predominantly in the Rakhine state for decades are not defined by this law as citizens. Even if this were not the case, as a hypothetical, if the Rohingya Muslims were in Burma before 1823, another law in that same chapter, no. 4, mentions that “the Council of State may decide whether any ethnic group is a national or not.”18 This law then permits otherwise illegal and inhumane actions to be permitted against specific peoples, by allowing them to negate citizenship to an entire ethnic group. A government has a duty to assure that everyone receives rights, including ethnic minorities. These rights include the right to nationality. This mentality is a standard in the realm of human rights and international law, nothing less is expected from every country, under no circumstances should a government have the option of not granting basic freedoms and rights to a group of people based on gender, race, color of skin, nor ethnicity. This perspective has been formalized in documents such as, “the Universal Declaration of Human Rights, the International Covenants, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities and other widely adhered to international human rights treaties and Declarations.”19 Now, understanding that the Rohingya Muslims are not citizens by law, consequently the Constitution does not apply to Burma Citizenship Law of 1982, Available at: http://www.refworld.org/docid/3ae6b4f71b.html 18 Burma Citizenship Law 19 “The Human Rights of Ethnic Minorities”, The People’s Movement for Human Rights Education, Accessed 2017. https://www.pdhre.org/rights/ethnicity.html#top 17


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them. They are thus unprotected from the very abuses the Burmese Constitution prohibits, such as forced labor and religious persecution. From birth, the Rohingya in Myanmar are stateless, they have no nationality. According to international laws, there are several violations here. In particular, the simple fact of being stateless is a direct violation of Article No. 15 in the Universal Declaration of Human Rights, “(1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”20 While in many situations lawyers and politicians are fighting about the human right of free speech and worship, in this humanitarian crisis, even the exceptionally basic human right of having a nationality is non-existent and has not been for years. The international community has reassessed the conditions of the Rohingya, but most importantly, in 2014 the United Nations General Assembly adopted a resolution calling on the Burmese government to amend their Citizenship law, precisely so that it can be inclusive and not discriminate against the Rohingya. The Myanmar government ignored the resolution. In the words of Brad Adams, the Asia director at Human Rights Watch “Burma’s discriminatory citizenship law not only deprives Rohingya of citizenship, but for decades has encouraged systematic rights violations. Amending the law to bring it in line with international standards is the first step for resolving this long-standing human rights abomination.”21 Leaving a group of individuals stateless, whether it’s the Rohingya or another, in a sense abandons them. Their rights become unprotected and they are trapped, without much form of mobilization. It also impedes the access to basic needs and service, which enables a person to establish a civil life every human deserves. The stateless Rohingya live in a nation where the law allows for many injustices to be committed to them by military officials through the burning of entire villages, the infliction of bullet and

The Universal Declaration of Human Rights, United Nations, December 10, 1948, http://www.un.org/en/universal-declaration-human-rights/ 21 Human Rights Watch, “Burma: Amend Biased Citizenship Law”, January 13, 2015, https://www.hrw.org/news/2015/01/13/burma-amend-biased-citizenship-law 20


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knife injuries, beatings, and deprivation from food.22 Meanwhile, on the other end, the laws in place also restrict them from having any political power through voting. The Rohingya children are victims of this law as well, as the Myanmar government does not give citizenship by birth, thus even children who are lucky enough to receive a birth certificate are not allowed access to things many consider essential. Education is one of them, which is stated in the constitution as a basic need provided by the government, but that has been denied to children who have a Myanmar birth certificate, “None of the Rohingya that Human Rights Watch interviewed in late 1999 had children enrolled in school.”23 It needs to be considered that this statistic was retrieved in 1999, much before the international community identified the situation in Myanmar as “ethnic cleansing”, hence the numbers most likely have not improved. Access to healthcare is just as limited, “In the last year, Rohingya have increasingly been denied access to public health care. Although there is no law that patients must produce identity documents, some government clinics have recently started turning away undocumented people.”24 This issue isn’t solely a migration crisis, or as a short term complex emergency, in reality it is tremendously long-term issue that effects the daily lives of people who have near to no way of escaping it. Burmese law has been set up over many decades to be purposefully and systematically discriminatory towards the Muslim ethnic minority referred to as Rohingya. To understand the rationale that came behind the implementation of these laws and the current constitution, there needs to be an understanding of history of the deeply rooted Buddhist majority in Burma. The political ties that the government has placed on the official religion needs to be considered as it has helped justify the systematic oppression of the one minority that seen as a threat by the majority: the Rohingya. Myanmar’s government has tried to maintain the active illusion of being a just and peaceful Human Rights Watch, “Burma: Rohingya Describe Military Atrocities”, September 8, 2017, https://www.hrw.org/news/2017/09/08/burma-rohingyadescribe-military-atrocities 23 Malaysia/Burma: Living in Limbo, “IV: The Rohingya’s Citizenship: The Root of the Problem”, Human Rights Watch, Vol.12, No.4, August 2000, https://www.hrw.org/reports/2000/malaysia/index.htm#TopOfPage 24 Human Rights Watch, “Rohingya’s Citizenship” 22


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democracy to the general public, or at least has been able to until around 2014—with even a Nobel Prize winner as State Counselor, akin to Prime Minister—at the same time as gravely inhumane laws exclude millions from the protection of the constitution. While international human rights law plays a significant role in the analysis of this case, a deeper inspection of the fundamental laws of Myanmar should be prioritized in order to engage with the legal roots of this humanitarian crisis. A political understanding of the democratic transition Myanmar is going through, or technically has already gone through, would allow for the understanding of why these laws haven’t been amended. The same State Counselor mentioned above along with the democratic party were constantly criticized by the Buddhist majority, who claim they will allow for the supposed predicted takeover of Myanmar by the Rohingya Muslims. Knowing this, and desperately seeking majority support, a choice had to be made. That choice is the one that is continuing to allow the injustices against the Rohingya. The perspective of the domestic legal framework and in the political sensitivity due to the democratic transition needs to be taken into consideration. If it is, it will allow the international community to finally find effective ways of influencing Myanmar’s government. This could lead to the reformation of Myanmar’s discriminatory citizenship law and thus help bring to an end to the systematic ethnic cleansing of the Rohingya.


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MADURO’S CONSTITUENT ASSEMBLY: ILLEGALITY AND INTERNATIONAL RESPONSE JEANNIE REGIDOR STAFF WRITER

This article conducts an examination of the violations of the Venezuelan constitution and the dissolution of the Venezuelan legislature by Nicolas Maduro. It describes specific constitutional violations as well as violations within the international community. It also explores how countries—both neighboring and global—have responded to the establishment of the new Constituent Assembly. The article argues that different states have responded to the Venezuelan government in various ways and explores how Maduro has violated the constitution numerous times. These arguments provide a background for predicting the aftereffects of Maduro’s choices.

Introduction The current president of Venezuela is surely no president. Nicolas Maduro can best be characterized as a dictator. A stark difference between title and reality. He lost these democratic credentials primarily when he chose not to uphold the rights guaranteed to the Venezuelan people under the nation’s constitution. His failure to uphold these rights has stemmed from his imposition of a system of government that is inconsistent with this document. Maduro avoided any technical violation of the Venezuelan constitution when he refused to step down as a leader even when protests for a recall vote erupted1 and “negative

"Venezuela suspends recall vote against President Maduro." News | Al Jazeera. Accessed November 19, 2017. http://www.aljazeera.com/news/2016/10/venezuelasuspends-recall-vote-president-maduro-161021034609853.html. 1


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evaluations climbed from 70.4 percent from 68.8 percent.”2 This was in direct violation of the Venezuelan Constitution, which states: When a number of voters equal to or greater than the number of those who elected the official vote in favor of revocation, provided that a number of voters equal to or greater than 25% of the total number of registered voters have voted in the revocation election, the official's mandate shall be deemed revoked, and immediate action shall be taken to fill the permanent vacancy in accordance with the provided for in this Constitution and by law.3

Technically, because the government did not allow the recall vote to happen, this article was not violated but the reasoning for preventing this vote was due to Maduro’s knowledge of his disapproval ratings and the widespread consensus that he should be recalled. Maduro’s decision to prevent any recall vote, which would have most assuredly resulted in his recall and jeopardized his regime, surely implies democratic desecration on Maduro’s part. Consequently, his infractions have caused the international community to respond in a polarized manner—with some countries siding with Maduro and others fully opposing and condemning him. These various responses illustrate the magnitude of seriousness in the situation in Venezuela (domestically and internationally) as well as its legal ramifications. Legality of the Current Venezuelan Governmental System The original legislative body of Venezuela, the National Assembly, was originally made up of a three-fifths majority of oppositionists to Maduro. This inevitably created tension between Maduro and the governing body. This strain was further exacerbated by the economic crisis inherited by the Maduro government due to Chavez’s economic dependence on oil. A combination of the surplus of oppositionists in the legislative body

Reuters. "Maduro's Support Slips to 24.3 Percent, Venezuelan Poll Finds." VOA. August 13, 2015. Accessed November 19, 2017. https://www.voanews.com/a/maduro-support-slips-venezuela-poll/2917470.html. 3 "Constitution - Title III: Duties, human rights, and guarantees (Art. 19-135)." Venezuelanalysis.com. February 16, 2010. Accessed November 20, 2017. https://venezuelanalysis.com/constitution/title/3. 2


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as well as recall protests and a failing economy caused Maduro to declare a “state of emergency” which resulted in the present structure.4 An in-depth discussion of the legality (or lack thereof) in Venezuela’s current political system necessitates an explanation of the new National Constituent Assembly. The assembly, which is “an elected temporary parliament that has the mandate to draft or reform the Constitution,” was undemocratically created by Maduro when he called for its election despite protests by the Venezuelan people. On the surface it appears as if Maduro hasn’t violated any laws because he utilized Article 347 of the Venezuelan Constitution which states: The original constituent power rests with the people of Venezuela. This power may be exercised by calling a National Constituent Assembly for the purpose of transforming the State, creating a new juridical order and drawing up a new Constitution.5

Despite the “legality” of Maduro’s repressive actions, the problem lies with the fact that Maduro chose who could be listed in the National Constituent Assembly. Maduro chose citizens favorable to him and his regime, thus leaving his opponents without any representation. Although Maduro’s excuse for the assembly election was that it would bring peace to Venezuela in a time of tension—most Venezuelans believe that it was because upcoming elections were being held and Maduro knew that he and his followers would lose. Furthermore, because Maduro chose the members, people fear that this assembly will use its power to supersede the National Assembly (the legislative body in Venezuela) which is the only government sector not controlled by Maduro. Essentially, since the assembly is filled with Madurosupporters, they embody what Maduro wants, while representing the deterioration of a separation of powers within the Venezuelan McCarthy, Michael. "6 things you need to know about Venezuela’s political and economic crisis." The Washington Post. May 18, 2016. Accessed November 20, 2017. https://www.washingtonpost.com/news/monkey-cage/wp/2016/05/18/6-thingsyou-need-to-know-about-venezuelas-political-and-economiccrisis/?utm_term=.6e245449c851. 5 "Constitution - Title III: Duties, human rights, and guarantees (Art. 19-135)." Venezuelanalysis.com. February 16, 2010. Accessed November 20, 2017. 4


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government. This is especially important because Article 294 in the constitution states: The organs comprising Electoral Power are governed by principles of organic independence, functional and budgetary autonomy, separation of the electoral organs from the political parties, impartiality and citizen participation, as well as decentralization of electoral administration, transparency and expeditiousness of the voting process and tallying of votes.6

The idea of a “separation of the electoral organs from political parties,” is important because this is exactly what Maduro has destroyed by handpicking members of the New Constituent Assembly and by interfering in the recall elections. In short, it may appear as if he is following the laws of his country but he is actually breaking them in a way that makes it hard to prove he is doing anything wrong. Article 6 Although the idea of the assembly itself does not conflict internally with Venezuela’s constitution, the method of its implementation does. The first aspect that it conflicts with is Article 6: The government of the Bolivarian Republic of Venezuela and of the political organs comprising the same, is and shall always be democratic, participatory, elective, decentralized, alternative, responsible and pluralist, with revocable mandates.7

This article explicitly states that the political systems in Venezuela must be participatory. Maduro’s recent installation of this Constituent Assembly is not. The lack of representation for the opposition, and the fact that Maduro chose who the constituents were, is more exclusionist than participatory. The Constituent Assembly is also not decentralized since its constitution is chockfull of Maduro supporters. This "Constitution - Title III: Duties, human rights, and guarantees (Art. 19-135)." Venezuelanalysis.com. February 16, 2010. Accessed November 20, 2017. https://venezuelanalysis.com/constitution/title/3. 7 "Constitution - Title III: Duties, human rights, and guarantees (Art. 19-135)." Venezuelanalysis.com. February 16, 2010. Accessed November 20, 2017. https://venezuelanalysis.com/constitution/title/3 6


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centralization of the assembly into one political alignment goes against Article 6. If the government of Venezuela is to claim that the Constituent Assembly is completely in line with the current Constitution, then this assembly should not be so universal in its alignment or have a strict allegiance to the head of state. It must be a separate body that acts on its own terms. These terms, however, are no doubt influenced by Maduro who has flexed his political muscle in controlling the composition and action of the chamber. The question of Maduro’s control also relates to the necessity of pluralism in the Constituent Assembly—meaning that it needs to consider multiple ideas—not just those from governmental officials or its own Assembly members. As of now, it seems likely that the Assembly is making its own decisions regardless of outside opinion or knowledge, and without consideration to the opposition’s opinions. This desire to block the voice of one section of the Venezuelan population is at the root of what makes this assembly a violation of the current Venezuelan constitution, and tarnishes its legality in future actions. Article 62 Another constitutional violation falls under Article 62 which states that: “All citizens have the right to participate freely in public affairs, either directly or through their elected representatives.”8 The article’s introductory statement makes it clear that elections must undoubtedly be representative of the opinions of the population. “The right to participate freely in public affairs,” means that citizens should be provided the right of representation and, more specifically, that the citizens of Venezuela should have had a say on the Constituents that were listed for the Assembly. The phrase, “either directly or through their elected representatives,” further clarifies this because if the Venezuelan citizens are not specifically voting on the laws or new policies—or in this case, creating the new constitution—their elected representatives should be people who will uphold their beliefs. Additionally, the articles states:

8

Ibid.


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The participation of the people in forming, carrying out and controlling the management of public affairs is the necessary way of achieving the involvement to ensure their complete development, both individual and collective. It is the obligation of the State and the duty of society to facilitate the generation of optimum conditions for putting this into practice.9

Here again, it is stressed that the “participation of the people,” is necessary in the electoral process further invalidating the legitimacy of the current Constituent Assembly. The phrase, “controlling the management of public affairs,” emphasizes the idea that the citizens should have the power in government not the political actors. In a Hobbesian sense, the political actors are granted that power by the citizens who authorize them, but in Venezuela, Hobbes’ state of nature prevails as this Constituent Assembly has been granted its power by Maduro and his supporters but not by all the citizens in Venezuela. The legality of this Assembly would not be questioned if efforts had been made to include the citizens, but according to the Washington Post, “The vote lacked many of the safeguards normally present in Venezuelan elections,” and “ballots didn’t even have the names of the candidates, just numbers.”10 Furthermore, the explicit statement that it is “the obligation of the State and the duty of society,” to ensure these types of electoral practices is evidence of the Maduro government’s negligence in upholding its obligation to its people. International Covenant on Civil and Political Rights (CCPR) The Venezuelan government has also violated its agreements within the international community. One specific instance of this is the International Covenant on Civil and Political Rights (CCPR)—a “binding treaty” for the international community of states who have ratified it, Venezuela being one of them.11 One Ibid. McCoy, Jennifer L. "Analysis | Venezuela's controversial new Constituent Assembly, explained." The Washington Post. August 01, 2017. Accessed November 20, 2017. https://www.washingtonpost.com/news/monkey cage/wp/2017/08/01/venezuelas-dubious-new-constituent-assemblyexplained/?utm_term=.69f80e071d76. 11 "View the ratification status by country or by treaty." Treaty bodies Treaties. Accessed November 20, 2017. 9

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legal aspect, similar to Article 62 in the Venezuelan constitution, is Article 25. This article states that a “Public Power” has no excise to deny citizens their fundamental rights.12 Venezuela signed the CCPR because it reflects the values presented in its constitution. This is noteworthy because while it is one thing to violate one’s own State constitution it is different to violate an international agreement among many states. Normally, if there are internal issues states—especially with very centralized governments will take care of it through their own sovereignty, however, international agreements involve more than one country which means that there is a greater cost involved. Responses by the International Community Venezuela’s actions have caused many countries to refuse to acknowledge the new Constituent Assembly. Among these is the United States, which has imposed sanctions on Venezuela because it does not support its anti-democratic government. In addition, the European Union has refused to recognize the Constituent Assembly and warned of further sanctions if Venezuela continues its violations.13 The Latin Americandominated trading block, Mercosur, suspended Venezuela for its non-democratic practices and for not “complying with the bloc’s regulations.”14 More specifically, Maduro’s less-than-legal actions have caused a host of problems not associated with democratic principles. Colombia, Venezuela’s neighbor, is currently dealing with an influx of Venezuelan refugees. A problem only amplified by the fact that Maduro’s government refuses to acknowledge http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=1 91&Lang=EN. 12 "Constitution - Title III: Duties, human rights, and guarantees (Art. 19-135)." Venezuelanalysis.com. February 16, 2010. Accessed November 20, 2017. https://venezuelanalysis.com/constitution/title/3 13 Brodzinsky, Sibylla, and Daniel Boffey. "40 countries protest Venezuela's new assembly amid fraud accusations." The Guardian. August 02, 2017. Accessed December 01, 2017. https://www.theguardian.com/world/2017/aug/02/venezuelavoting-fraud-corruption-allegations-protests. 14 Newshourbd. "Mercosur suspends Venezuela, urges immediate transition." News Hour. August 06, 2017. Accessed December 01, 2017. https://newshour.online/2017/08/06/mercosur-suspends-venezuela-urgesimmediate-transition/.


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that there is an ongoing migrant crisis, or that there are political tensions in the country. This has created difficulties for Colombian President Juan Manuel Santos, who has been a vocal critic of the Maduro regime, as he works with the United Nations to create a plan to help the refugees that are crossing the border. One of Santos’ first steps has been sending Colombian officials to Turkey to learn how they are handling the arrival of Syrian refugees and see if a similar model could be applied in Colombia.15 If Colombia is able to respond to this crisis effectively it will have come out with new precedent for asylum-seeking people which will change the course of refugee law in Colombia. Currently the laws are set up so that they are harsh and do not benefit the refugees as much but with this new law Colombia will be evolving a gentler policy. Unlike Colombia, Brazil will have to make specific legal changes to respond to the Venezuelan refugee crisis. Brazil has not updated its asylum system since 1997 (a time when there were very little asylum-seekers) and has recently had to face an increasing number of asylum-seekers entering the country from Venezuela. Many changes need to be made in Brazil to respond to this crisis. Brazil will have to set up a government institution to manage migration; it will have to revisit and rewrite its restrictive migration law; it needs to set up centers in different regions of the country to process the refugees; it will also have to develop a resettlement program as well.16 These changes will necessitate a significant shift in the laws of Brazil because of the crisis in Venezuela. Other South American countries won’t be as legally affected as Brazil. Peru and Argentina have created special visas that serve as work permits which allow Venezuelans to stay in their country for a certain period. Citizens of these countries remember when they would flee to Venezuela in the past to escape harmful governments.

"The Dialogue." InterAmerican Dialogue. Accessed December 01, 2017. https://www.thedialogue.org/blogs/2017/07/confronting-the-brewing-storm-at-thecolombia-venezuela-border/. 16 Brodzinsky, Sibylla. "Venezuela to vote on constituent assembly after months of protests." The Observer. July 29, 2017. Accessed November 20, 2017. https://www.theguardian.com/world/2017/jul/29/venezuela-government-madurovote-end-democracy. 15


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Out of these countries, Peru was the first country to remove its ambassador from Venezuela after the Constituent Assembly was created.17 Moreover, Argentina also has released a statement denying the recognition of this new Assembly.18 The fact that Peru and Argentina, along with many countries in the international community (including Brazil, Canada, Chile, Colombia, Costa Rica, Spain, Mexico, and Panama) have made such critical statements displays the lack of support allies that Venezuela currently has—especially among neighboring countries. Among the allies that Venezuela does have are Bolivia, Cuba, Ecuador, Nicaragua, Russia, Belarus, and Iran. The most powerful of these allies is Russia which means that Venezuela could care less about the allies because Russia is the strongest. To add, the rest of the potential allies are relatively powerless on the geopolitical level; there only purpose is to condemn countries that do not recognize Venezuela under Maduro. Conclusion Venezuela’s violation of international law “has set the stage for a three-way constitutional quarrel.”19 The U.S. government recognizes the Venezuelan oil bonds under the government run by the National Assembly, not the new Constituent Assembly. Because the constitutions of the National Assembly and Constituent Assembly will be different this will call into question the validity of these bonds. The new Constituent Assembly will argue that the Venezuelan Supreme Court authorized them— granting the Supreme Court the same powers as its executive branch; the U.S. government will counter by stating that an illegitimate government cannot authorize these bonds.20 At this point, the U.S. will then cancel the money that it is lending to Venezuela for its oil industry placing Venezuela into an even

Taj;, Mitra. "Peru expels Venezuelan ambassador to protest constituent assembly." Reuters. August 11, 2017. Accessed December 01, 2017. https://www.reuters.com/article/us-venezuela-politics-peru/peru-expels-venezuelanambassador-to-protest-constituent-assembly-idUSKBN1AR2B7. 18 Ibid. 19 FT Alphaville. Accessed December 01, 2017. https://ftalphaville.ft.com/2017/08/18/2192462/enforcing-new-venezuelan-publicdebt-instruments-maduro-bonds-part-2/. 20 Ibid. 17


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larger economic crisis which means there will be even more migrants fleeing the country. This type of crisis will result in chaos for the country and it could even lead to a removal of Maduro from power as he begins to lose support within his own Constituent Assembly. The establishment of this new assembly will not benefit Venezuela in its international relations, and this will set the precedent for future Venezuelan leaders once Maduro is out of office. Ultimately, the Venezuelan government’s formation of the Constituent Assembly was illegal due to its violations of both domestic and international law: specifically, the Constitution and the International Covenant for Civil and Political Rights, respectively. These violations were after-effects of a controlling government led by Maduro and his followers. To clarify, Maduro’s government was not actively seeking to violate specific articles. Rather they were seeking full control over Venezuelan political institutions and to guarantee that dissident citizens—especially the opposition—did not have a voice. In doing so, the Venezuelan government naturally violated the rights to which Venezuelan citizens are entitled to. The Venezuelan government is not a government for Venezuelans, but it certainly is a government by Maduro. The international community has recognized this as well which is why they have taken steps to put pressure on this country and measures to alleviate the refugees who flee from it. Venezuela’s remaining allies will probably not be of much help— especially due to its internal economic issues. This means that it is only a matter of time until the collapse of this illegal system. Until then, the changing legal systems in Venezuelan’s neighboring countries are setting a precedent for international relations in the future.


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THE ROLE OF LAW IN ENVIRONMENTAL POLITICS ALLISON RABE STAFF WRITER

Since 2008, international bodies have passed legislation and amended constitutions in an effort to protect the environment. This emerging method of protection through environmental law has the potential to set a precedent that would result in more impactful and more influential environmental protection agreements for the future. This essay evaluates some of these international agreements and their current legal ramifications. Beginning with the Paris Climate Agreement and the United States’ abstention as well as the United Kingdom and Canada’s noncompliance with the Kyoto Protocol. The essay then looks at the feasibility of the method of assigning nature a personhood to protect its rights, as has been done in several nations.

Introduction The confluence of environmental law and justice have become increasingly prevalent on the world stage. With mounting international concern regarding the consequences of anthropogenic climate change, the international community has come together to sign landmark agreements, such as the Paris Agreement. Countries from around the world are now demonstrating a serious commitment to protecting the Earth and the future. These recent actions, however, should not be considered revolutionary. Since 2008, international bodies have passed legislation and amended constitutions in an effort to protect the environment. Even granting rights to nature itself is an emerging method of protection through environmental law. The legally binding aspect of these protections could set a precedent that would result in more impactful and more


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influential international environmental protection agreements for the future. A Background on the Paris Agreement The Paris Agreement, which was adopted by the United Nations in 2015 and enacted in November 2016, was a profound example of international cooperation with the common goal of mitigating the harmful human conditions to climate change. The agreement lays out specific ways in which participating countries should attempt to achieve this long-term result, including a reduction of greenhouse gas emissions, future investment in more environmentally conscious energy development, and a global goal of keeping the increase in the average world temperature below 2 degrees Celsius above pre-industrial levels.1 To measure the success of the agreement, countries will reconvene every five years to reevaluate these goals in light of new climate evidence, and to promote transparency and accountability.2 Every country in world, save the United States, has committed to the Paris Agreement, solidifying the document as an immensely significant display of international diplomacy and cooperation. These goals are integral to the future health of the environment, but they are only goals. They are neither laws nor mandates. A participating country that fails to reach any or all of these goals will face no legal repercussions. As a statement of global unity against climate change, the Paris Agreement is a powerful document. As a piece of world legislation to effectively battle against climate change, the Paris agreement is a weak document. Its efficacy remains to be seen; and, the absence of legal consequences for a failure to achieve the outlined objectives of the agreement will presumably make it easy for countries to half-heartedly support its goals, while whole-heartedly taking the credit for ratifying.3 Naturally, an international agreement with the magnitude of the Paris Agreement will carry weight, as 169 countries have ratified the agreement—Syria has affirmed its commitment, and Paris Agreement. United Nations. 2015. Paris Agreement. European Commission Climate Action. Zorthian, Julia. “What to Know About the Paris Climate Change”. Time. 1 June 2017. 1 2 3


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only the United States remains opposed.4 With a group of that many countries collectively committing to a common goal, the countries who either do not join the agreement or join the agreement and fail to achieve the goals would certainly face international scorn from the achieving countries. A lack of legal consequences, however, means the efficacy of the agreement rests on the ability of participating countries to hold each other accountable. The effectiveness of international ridicule to motivate a country to meet the requirements and goals under the Paris Agreement may not be the best strategy in the future, considering international scorn has done nothing to reverse President Trump’s decision to abandon the agreement. The Sierra Club commented on America’s position by stating: “As if it wasn’t already crystal clear, every single other country in the world is moving forward together to tackle the climate crisis, while Donald Trump has isolated the United States on the world stage in an embarrassing and dangerous position.” 5 Whether this isolation will lead to eventual acceptance from the US, or future compliance from countries that have already ratified, remains to be seen. What has been shown in past efforts to combat climate change, however, is that the absence of legal consequences often leads to serious deficiencies in the accomplishment and execution of goals or initiatives outlined in agreements. A Toothless International Agreement The Paris Agreement was not the first time that a large amalgamation of countries at the UN collectively acknowledged the existence of anthropogenic climate change and outlined a plan for a reduction of emissions. The most prevalent example was the Kyoto Protocol, adopted on December 11, 1997, with 192 Parties.6 Kyoto granted signatories much more autonomy in determining their own emission reduction goals as well as monetary penalties for failure to meet the goals. However, Kyoto fell short in that it allowed countries the right withdraw from the agreement if they believed they were not on track to meet the goals, thus avoiding “Paris climate accord: Syria to sign up, isolating US”. BBC. 7 November 2017. “Paris climate accord: Syria to sign up, isolating US”. BBC. 7 November 2017 Status of Ratification of the Kyoto Protocol. United Nations Framework Convention on Climate Change 4 5 6


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the penalty. The problem with Kyoto is two-fold: first, the countries who signed onto the agreement had no external force or punishment mechanism to motivate them to reduce emissions; second, the agreement was too conciliatory by granting those failed countries to exempt themselves. The entire agreement suffered from a lack of accountability and motivation. Examples demonstrating the poor effect of an international climate agreement with few consequences for noncompliance does exist. The United Kingdom and Canada are two notable instances of countries that failed to comply with the Kyoto Protocol. Canada withdrew from the agreement in December 2011 after realizing that it was unlikely the country would meet its goal of reducing emission levels from five percent (of 1990 levels) by 2020. Canada’s Environment Minister at the time, Peter Kent, attributed the withdrawal as a move to avoid the financial costs of noncompliance. Megan Leslie, a New Democratic Party Environment critic, remarked that the act was not financially motivated and instead was the Canadian government “…abdicating its international obligations. It’s like we’re the kid who’s failing the class so we have to drop it before that happens.”7 Regardless of the true intentions behind withdrawal, the ability of Canada to drop the Kyoto Protocol without formal punishment is indicative of the agreement’s inability to bring about tangible change. When countries can leave without consequence because they believe they will not meet the goals they themselves set, it is highly unlikely the agreement will address climate change. Kent realized this, noting that Kyoto had “very few teeth beyond international diplomatic censure.”8 International agreements with very few teeth (other than diplomatic censure or financial penalties, which can be avoided by dropping out) create agreements that do not encourage strong compliance, nor achieve their goals. This makes the fear of noncompliance with the Paris Agreement a real and pertinent concern. If proponents of the Paris Agreement are hoping that “falling out of favor” in the international stage will incentivize states to comply with the agreement, Kyoto demonstrated that this is not “Canada pulls out of Kyoto Protocol.” 12 Dec 2011. CBCNews. Paulina Poplawski-Stephens. “What would be the consequences of not meeting Kyoto carbon targets?”. The institution of environmental sciences. February 2014. 7 8


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the case. However, greater compliance could be achieved by establishing a legally-binding agreement that carries legal consequences for failing to meet international guidelines. Changes in environmental law across the globe have infused this hard power into previously flimsy environmental regulations. The resulting change on a global scale could be what is necessary to ensure the proper execution of international agreements combating climate change. Global influence on the use and abuse of natural resources is an important measure to ensure the health of the environment for future generations. Environmental law has been a useful tool for the protection of resources in the past, and its strengthened presence on an international scale could be useful in achieving the goals of the Paris Agreement. Nature’s Rights There are several methods in which environmental law can be utilized to ensure protection of natural resources. One of the increasingly popular approaches is the granting of legal personhood to parts of the environment. The first such instance occurred in Ecuador in 2008. The country amended their constitution to include a section on the rights of nature, and in doing so became the first nation to grant constitutional rights to nature. The amendment reads: “Natural communities and ecosystems possess the unalienable right to exist, flourish, and evolve within Ecuador. Those rights shall be self-executing, and it shall be the duty and right of all Ecuadorian governments, communities, and individuals to enforce those rights.”9 This constitutional amendment was an attempt to change the approach countries take when tackling environmental issues. Previously, the prevailing practice for environmental protection was governmental regulation. Thomas Linzey, a lawyer from the United States, who advised the Ecuadorian environmental constitution changes, noted the inefficacy of regulation: “The dominant form of environmental protection in industrialized countries is based on the regulatory system. Governments permit and legalize the discharge of certain amounts of toxics into the environment. As a form of environmental protection, it’s not 9

Kendall, Clare. “A New Law of Nature” The Guardian. 23 September 2008.


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working.”10 By granting legal personhood to the environment, Ecuador made it possible for individuals to sue offending parties on behalf of the environment. However, the amendment was a move into uncharted legal territory since there was no precedent in granting legal personhood to the environment. The constitutional changes most likely came about via pressure from an environmental lawsuit against Chevron after the oil company dumped 18 million tons of oil into pits over 20 years. Despite international guidelines advising against these actions, Ecuador gained no ground in suing Chevron, and the United State Supreme Court recently refused to hear the case.11 Thus, the Ecuadorian government and environmental campaigners used the country’s experience with Chevron as a catalyst for their constitutional amendment. Zoe Tryon of Pachamama Alliance, who worked extensively with the Ecuadorian assembly in the development of the environment amendment, stated: “It’s too late for the Chevron case, but it will be an effective deterrent for similar operations.”12 Besides protecting its own environment from further corporate degradation, by granting legal personhood to the environment in 2008, Ecuador also set a legal precedent that was adopted other countries in the following years. These subsequent amendments or legal decisions have had some successes since Ecuador’s implementation. A notable case involves the Vilcabamba River and a nearby road undergoing construction. The rock, sand, gravel, and excavation runoff from the roadwork began to pollute the river and a constitutional injunction was presented on behalf of nature. The plaintiffs in the case argued that the rights of nature were being violated as the construction was “increasing the river flow and provoking a risk of disasters from the growth of the river with the winter rains, causing large floods that affected the riverside populations who utilize the river’s resources.”13 The Provincial Court of Loja ruled in favor of the Vilcabamba River and set up a list of reparations that Kendall, Clare. “A New Law of Nature” The Guardian. 23 September 2008. Barret, Paul. “U.S. Courts Aren’t Interested in Chevron’s Pollution Case, But Other Nations May Be.” Bloomberg Businessweek. 20 June 2017. 12 Kendall, Clare. “A New Law of Nature” The Guardian. 23 September 2008. 13 Greene, Natalia. “The first successful case of the Rights of Nature implementation in Ecuador”. Global Alliance for the Rights of Nature. N.d.. 10 11


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included requiring the Provincial Government of Loja to provide a rehabilitation plan for the river as well as paying to clean up the pollution the construction had caused.14 Documented successes of this law inevitably begets instances in which environment-related rights had been violated but no case had been brought forward. Many of Ecuador’s environmental leaders do not seem to be greatly alarmed. One of them, Natalia Green, recognized these shortcomings but nevertheless believes the decision of Ecuador to grant legal rights to nature was a powerful statement that “opened up a space for a different discussion about the environment and conservation that was previously inexistent.” 15 Following Ecuador’s decision to grant constitutional rights to nature, many more agencies, on both local and national levels, have followed suit. Notable legal changes took place in Bolivia, the United States, New Zealand, and India. Bolivia, heeding the constitutional change in Ecuador, enacted similar changes in 2010 with the passage of the Act of Rights of Mother Earth. The act guaranteed “Mother Earth the right to life, to the diversity of life, to water, to clean air, to equilibrium, to restoration, and to pollution-free living.”16 In the United States, almost 200 municipalities passed legislation that give rights, in some form, to nature or the environment.17 In March of 2017, the New Zealand government granted the Whanganui River legal personhood. The river, often referred by the indigenous Maori population as “Te Awa Tupua,” has strong cultural significance. The New Zealand Parliament passed a bill that declared that Te Awa Tupua “is a legal person and has all the rights, powers, duties, and liabilities of a legal person.”18 Only a few days after the passage of this bill, India granted legal personhood to two rivers. The Ganges and Yamuna rivers have

Greene, Natalia. “The first successful case of the Rights of Nature implementation in Ecuador”. Global Alliance for the Rights of Nature. N.d.. 15 Arias, Melissa. “Conversation with Natalia Greene about the Rights of Nature in Ecuador”. Yale Center for Environmental Law & Policy. 9 March 2015. 16 Act of the Rights of Mother Earth. The Plurinational Legislative Assembly. 2010. 17 Pietari, Kyle. “Ecuador’s Constitutional Rights of Nature: Implementation, Impacts, and Lessons Learned.” Willamette Environmental Law Journal. 2016. 18 Buchanan, Kelly. “New Zealand: Bill Establishing River as Having Own Legal Personality Passed” Global Legal Monitor. 22 March 2017. 14


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been facing increased pollution in recent years with the rise in industrialization and the booming economy. As they are held sacred by hundreds of millions of Hindus, and provide water to almost 40 percent of India, there was a strong movement to protect these rivers. Of course, India’s quick action exposes some flaws with the recognition option. Without the government actually granting any legal obligations for protection, the government set these initiatives up for disaster. While some believe that legal personhoods may provide the necessary push for the government to follow through on protection initiatives, the accuracy of such predictions remain to be seen amongst the growing skepticism regarding the degree to which legal personhoods will lead to anything tangible—like impacting pollution restriction and environmental protection enforcement. Suresh Rohilla, program director at the Center for Science and Environment in New Delhi, expressed doubt regarding the weight behind the India’s recognition of legal personhood by noting that “simply giving the rivers greater rights does not automatically give them greater protection.”19 Rohilla additionally argues a condition for the success of such recognition, noting that in order to prevent pollution of the rivers, citizens must take it upon themselves and act on behalf of nature. He claimed that, “It is the constitutional duty of every citizen to protect our natural resources.”20 This is an important assessment, as legal personhood does not guarantee immediate protection, but requires a continual and steadfast protection of the granted rights. Rohilla’s overall apprehension (and condition for success) is not unwarranted considering personhood efforts are relatively recent, and the effects are not yet clear. In seeking a silver lining, it is important to note that these rulings show the willingness of countries to make the opening overtures to protect the environmental via legal means. Conclusion Daley, Jason. “India’s Ganges and Yamuna Rivers Are Given the Rights of People” Smithsonian.com. 23 March 2017. 20 Buchanan, Kelly. “New Zealand: Bill Establishing River as Having Own Legal Personality Passed” Global Legal Monitor. 22 March 2017. 19


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The government’s choice to implement legally binding environmental protections and attribute legal personhood to nature are relatively recent and untested, but the rapid global accumulation of these groundbreaking changes in environmental law show a fundamental shift in the understanding of what nature is and how it should be protected. Following the Ecuadorian amendment, which was the trend-setting development that spurred worldwide movement, must be sustained through individual actions of citizens and the continued commitment of countries. It must especially be sustained in light of the Paris Agreement--a powerful commitment made by every country in the world against climate change. The only problem is the goals set forth by the agreement rely on international scorn for failure to achieve. While the efficacy of The Paris Agreement remains to be seen, future international agreements on climate change would likely do well to attach legal consequences.


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THE LOOPHOLE LAW: A FADING WESTERN PHENOMENON JAD MAAYAH STAFF WRITER

Article 308 of the Jordan penal code, the law allowing for the exoneration of rapists should they marry their victim, was only just recently removed from the code. This law has its origins in the European influence of the area. This article evaluates the statute’s introduction into the penal code and the historic influence of western society on the laws of the Levant.

In April of 2017, talks of scrapping Article 308 in the Jordan penal code flooded news outlets and the question of exonerating rapists through the loophole law entered public discourse. By September, the talks and the discourse had turned into progress: Article 308 no longer classified as a reasonable law under the penal code and was removed completely from Jordan’s criminal code. A law that was brought into the Middle East by colonial powers and one that eventually defined some of the values Jordanians considered their own was fading away – and so was the societal influence it carried. Article 308 stated: “If a correct marriage contract is concluded between the perpetrator of [rape] and the victim, any pursuit shall be stopped; if a judgment was issued in the case, execution of penalty shall be suspended.”1 The general provisions required that this marriage last up to five years in order to reap the complete benefits of this loophole law. Later versions of the Article also incorporated a clause labeling the act of raping a male victim as “defamation,” not “rape,” even if the victim is a minor.2

1 2

‫ وﺟﻤﯿﻊ ﺗﻌﺪﯾﻼﺗﮫ‬1960/ 16 ‫ﻗﺎﻧﻮن اﻟﻌﻘﻮﺑﺎت رﻗﻢ‬ Ibid.


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It may alarm many globally that a law like Article 308 persisted well into the second decade of the 21st century; however, this is hardly unexpected given the historical precedents that gave rise to Article 308 and the conditions that helped maintain it. After the fall of the Ottoman Empire in 1924, the British Mandate in Jordan seized control of what was then known as the “Emirate of Transjordan.” 22 years later, the mandate was abolished and the Jordanian Penal Code was instated with the adoption of the Constitution in 1952. The new Jordanian legislative process drew inspiration from an Ottoman past with colonial influence.3 Ottoman legislation, which was itself inspired by the French Penal Code of 1810, established that men who had been convicted of committed sexual assault, abduction, or statutory rape against a woman were to avoid penalty of five years of hard labor if a valid contract of marriage could be provided. Similarly, the French Penal Code of 1810, which was created under Napoleon, states that a “seducer […] can only be condemned when the marriage has been declared void.”4 It is this colonial legacy that has introduced discriminatory laws such as Article 308 into the Middle East. The roots of laws such as Article 308 of the Jordanian Penal Code are not a product of local tradition, but rather the “cultural impact of centuries under colonial rule, where subjugation was ultimately secured by a true ‘gentlemen’s agreement.’”5 Once the French (and the English) entered the Levant, they brought with them laws that presided in Europe and were exported by colonizers across the globe. In simple terms, this never started as a Middle Eastern country performing badly on women’s rights. Rather, this was a Middle Eastern country so influenced by a colonial power that it adopted laws reflecting faults in the Western world itself. Colonialists offered local men full power in the household; likewise, they legitimized misogyny in the region by using codified laws to enable pre-existing prejudices. While the laws weren’t rooted in local tradition, they created a culture of Hibaaq Osman, “Laws that allow rapists to marry their victims come from colonialism, not Islam,” (2017). 4 France: Penal Code of 1810. 5 Osman, “Laws that allow rapists to marry their victims come from colonialism, not Islam.” 3


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oppression buttressed by law. Hibaaq Osman, writing in the UK Independent, concludes that “so many of the barriers that women face in the region stem directly from this strategy of using patriarchy as a tool of oppression”6. In this context, it becomes less surprising to learn that France abolished its loophole law only in 1994.7 In recent light of the escalating controversy surrounding Article 308, government officials under international as well as domestic pressure were inclined to repeal the Article in its entirety. After Wafa Bani Mustafa, an activist and Jordanian MP, first introduced ending the provisions of the Article; Bani Mustafa emphasized how the repeal became a “vital part of changing society.”8 However, the Article was subject to debate by the House of Parliament before any repeal efforts could take place. In 2015, the Parliamentary Legal Committee decided not to abolish the Article despite demands from all sides. It instead limited the conditions under which punishment could take effect to the defamation of a minor and the deception of a virgin.9 Only under those circumstances will a perpetrator of rape be able to use the loophole in Article 308. But this was clearly not enough for activists and members of parliament who sought a larger and more distinctive step forward for equality. The pressure on the government and the Parliamentary Legal Committee to remove the Article from Jordan’s penal code was heightened by activist groups maintaining that the Article “violated the most basic of human rights,” and setting qualifications for the Article instead of removing it entirely was referred to as a “compromise in the dignity of the victim, the perpetrator, and society as a whole” by Asma Khader, the Executive Director of the Sisterhood is Global Institute in Jordan.10 SIG11, among 63 other organizations, lobbied the Lower House for the past two years to abolish Article 308, rather than

Ibid. “Lebanon: Reform Rape Laws,” (2016). Zena Tahhan, “Meet the woman who pushed to repeal Jordan's rape law,” (2017). 9 ‫ ﺗﻌﻔﻲ اﻟﻤﻐﺘﺼﺐ ﻣﻦ اﻟﻌﻘﺎب إذا ﺗﺰوج ﺿﺤﯿﺘﮫ‬308 ‫ اﻟﻤﺎدة‬:‫( اﻷردن‬BBC Arabic, 2017) 10“ ‫ وﻻ طﻮق ﻧﺠﺎة ﻟﻠﻤﻐﺘﺼﺐ‬308 ‫ اﻟﺒﺮﻟﻤﺎن ﯾﻠﻐﻲ اﻟﻤﺎدة‬..‫( ”اﻷردن‬YouTube, 2017) 11 Henceforth will be used to refer to the Sisterhood Is Global Institute 6 7 8


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amend it.1213 SIG, for example, provided parliamentarians with “the right information about victims of this Article” and “had counterarguments to all the viewpoints put forth against repealing the provision within the parliament.”14 By pushing forth an argument backed by tangible incidents and counterarguments, SIG became one of the leading champions of the cause and allowed the abolition of Article 308 to remain on the Lower House’s radar. Those who supported Article 308 have maintained similar logic to that of the “gentlemen’s agreement” used by Europeans in the early 20th century. Mahmoud Al-Kharabsheh, a former Jordanian MP and one of the supporters of keeping Article 308 in place, argues that such an Article was put in place to defend the honor of a rape victim and her family. Jordanian culture prides itself in preserving tradition, and that extends to maintaining the honor of clans and keeping the reputation of a family intact. Rape, in all its forms, is seen as direct violation of that honor.15 Proponents of the Article formulate their arguments using scenarios in which the conditions of the Article are not met and argue that punishments for rapists may reach execution – essentially, the true rapists are getting the punishments they deserve. Furthermore, they see that the violation imposed on honor and reputation can only be countered with marriage or execution, and that repealing Article 308 in the Jordanian Penal Code cuts down these possibilities by half. Groups supporting Article 308 have generally taken a patriarchal and paternal approach to rape conviction, seeing the clause as a defender of a woman’s honor and her right to exist as a respectable member of a society that deeply associates a family’s honor to a woman’s chastity. In Parliament, however, the cries against Article 308 overhauled the voice of arguably fictitious “culture and tradition.” After a government committee, appointed by King Abdullah II, had recommended that that law be revoked in April, the lower Rana Husseini, “In historic vote, House abolishes controversial Article 308” (2017). 13 Sisterhood Is Global Institute, Article 308. 14 Zena Tahhan, “'Historic day' as Jordanian parliament repeals rape law,” (2017). 15 ‫ وﻻ طﻮق ﻧﺠﺎة ﻟﻠﻤﻐﺘﺼﺐ‬308 ‫ اﻟﺒﺮﻟﻤﺎن ﯾﻠﻐﻲ اﻟﻤﺎدة‬..‫( اﻷردن‬YouTube, 2017) 12


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house of the Jordanian Parliament voted to do so on August 1st. This decision was to be later endorsed by the Jordanian Senate and then finally approved by King Abdullah II himself.16 Activists saw the legislative move as a “historical moment.” Suad Abu Dayyeh, an activist at Equality Now who worked alongside groups like SIG, held that the repeal of Article 308 is an example and precedent for other countries worldwide that practice similar discriminatory legal provisions.17 Human Rights Watch released a statement saying, “Removing the Article completely [is] a positive step to strengthen the rule of law and end impunity for violence against women.”18 The repeal of Article 308 came in a series of legal reforms carried out by King Abdullah II’s royal committee to reform the judiciary and review the entire penal code. The committee has opened a window for activists to push for further legal reform concerning issues that have become increasingly prominent in Jordan and beyond.

‫ ﺗﻌﻔﻲ اﻟﻤﻐﺘﺼﺐ ﻣﻦ اﻟﻌﻘﺎب إذا ﺗﺰوج ﺿﺤﯿﺘﮫ‬308 ‫ اﻟﻤﺎدة‬:‫( اﻷردن‬BBC Arabic, 2017) Rebecca Ratcliffe, “Jordan bans rapists from escaping justice by marrying victim,” (2017). 18 “Jordan: Seize Opportunity to End Impunity for Rape,” (2017). 16 17


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GENOCIDE IN MYANMAR: A LEGAL QUESTION OF INTERVENTION ELIZABETH MANERO STAFF WRITER

Since 1948, the Rohingya have been denied recognition, both ethnically and as citizens, and have instead been branded as Bangladeshi illegal immigrants. Though the Rohingya people have long been subjected to targeted practices of discrimination, these practices have recently drastically escalated in scale. Reports suggest that the atrocities being committed meet at least three of the four criteria for the legal definition of genocide. This essay evaluates the atrocities through the lens of the United Nations’ Responsibility to Protect, established by the International Commission on Intervention and State Sovereignty in the wake of the Rwandan Genocide. Then, the essay will examine the Uniting for Peace resolution to evaluate the legal status of intervention in the face of Security Council inaction.

The United Nations has been subject to large swaths of complaints over its many years of existence and has stood the test of time against most; yet amongst the most infamous and persistent of critiques against the organization sits the claim that it has failed to adequately provide for the protection of human rights in vulnerable areas across the globe. While the international community adopted a mantra of “never again” following the Holocaust, it failed to follow through in key moments. The Rwandan Genocide, and mass killing in Srebrenica both occurred while the Security Council and peacekeepers stood to the side and watched. Not only did individual member states commit atrocities that the international community had thought


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it had seen the worst of, but the organizations purported to help them abjectly failed.1 These concerns have resurfaced into the public eye with the unfolding situation in Myanmar – a country from which over 600,000 refugees have fled violence and persecution since August of 2017. Myanmar, a predominantly Buddhist country, is home to an ethnically Muslim minority called the Rohingya. This group traces its roots to the fifteenth century Arakan Kingdom which was situated in the current area of Rakhine. After the end of British colonial rule in India, Rakhine became part of Burma – now modern-day Myanmar – where the Rohingya have been denied recognition, both ethnically and as citizens, since 1948, and have instead been branded as Bangladeshi illegal immigrants. Though the Rohingya people have long been subject to targeted practices of discrimination, including limitations on basic rights like work, education, religion, and number of children per couple, these practices have drastically escalated in scale. Myanmar police forces have been cracking down on the population following recent attacks by the Arakan Rohingya Salvation Army, a Rohingya militant group that the government has branded as a terrorist group, and the retaliation has become a front for a devolution into outright violence.2 Reports emerging from the country since October of 2016 describe forced expulsions, arson, and mass killings and rapes.3 In some alleged incidences, security forces fired on fleeing civilians and deliberately placed land mines by common borders crossing points.4 Together, these reports suggest that the atrocities being committed meet at least three of the four criteria for the legal definition of genocide, which can be found in Article II of the

United Nations General Assembly, “Implementing the Responsibility to Protect: Report of the Secretary General,” United Nations, January 12, 2009, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/63/677 2 Eleanor Albert, “The Rohingya Crisis,” Council on Foreign Relations, January 5, 2018, https://www.cfr.org/backgrounder/rohingya-crisis. 3 Poppy McPherson, “US Holocaust Museum says evidence of genocide against Rohingya in Myanmar,” The Guardian, November 14, 2017, https://www.theguardian.com/world/2017/nov/15/us-holocaust-museum-evidencegenocide-rohingya-myanmar 4 Albert, “The Rohingya Crisis.” 1


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Convention on the Prevention and Punishment of the Crime of Genocide: “… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a. killing members of the group; b. Causing serious bodily or mental harm to members of the group; c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d. Imposing measures intended to prevent births within the group; e. Forcibly transferring children of the group to another group.”5

Although the UN High Commissioner for Human Rights described the persecution of the Rohingya in Myanmar as “a textbook example of genocide,” as of the time of this article’s writing, the United Nations has not come to a decision on whether the prosecution of the Rohingya can be legally defined as genocide.6 The term, for a variety of reasons, is a politically packed one; along with a sobering acknowledgement of the severity of the crimes being committed, using the term genocide creates a legal requirement that the international community act to prevent it. Yet this same community has been notorious for its reluctance to act in the face of mass killings, something that is especially notable in the case of the permanent members of the Security Council who hold the power to veto any proposed action to halt the conflict. A historic lack of political will to action forces to question what, if anything, can be done to address the situation within the legal bounds of the United Nations system. A Responsibility to Protect One of the most important advancements in international law and human rights in recent history was borne out of the failure to intervene in the Rwandan Genocide. In 2001, a report was released by the International Commission on Intervention

“Definitions: Genocide,” United Nations Office on Genocide Prevention and the Responsibility to Protect, http://www.un.org/en/genocideprevention/genocide.html. 6 Tom Miles, “U.N. says still determining if Myanmar crisis is genocide,” Reuters, October 18, 2017, https://www.reuters.com/article/us-myanmar-rohingyagenocide/u-n-says-still-determining-if-myanmar-crisis-is-genocideidUSKBN1CN2OP 5


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and State Sovereignty (ICISS) that established the concept of the Responsibility to Protect (R2P), and was unanimously adopted by the international community during the 2005 World Summit. A reaction to the lack of global response in the face of massive violations of human rights violations – as occurred in the Rwandan Genocide – the R2P doctrine establishes a basis for legitimate interventions in instances where a ‘just cause’ to intervene exists. 7 At its core, R2P fundamentally rejects the notion of absolute, internal sovereignty that is exempt from outside intervention. The 2005 World Summit Outcome established that: “Each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleaning and crimes against humanity [and] the international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter to help protect populations from [these crimes]. In this context, we are prepared to take collective action…”8

There is however, a high threshold for when this action against a violating state must occur, and the criterion are outlined in the 2001 ICISS report. The first is “just cause”, which stipulates that a justified intervention can only occur in instances that there is a “serious and irreparable harm occurring to human beings, or imminently likely to occur,” either of large scale loss of life – regardless of the presence of genocidal intent – or of large scale ethnic cleansing – whether done through killings, compulsory expulsion, terror, or rape. Military intervention must be a last report, must be the minimum necessary, have a reasonable chance of success, and above all, the primary intent for intervention must be humanitarian in nature. 9

Wanda Troszczyńska-Van Genderen, “Reforming the United Nations: State of Play, Ways Forward,” Policy Department, Directorate-General For External Policies, March 2015, http://www.europarl.europa.eu/RegData/etudes/STUD/2015/536435/EXPO_STU%2 82015%29536435_EN.pdf 8 UNGA, “Implementing the Responsibility to Protect.” 9 “Report of the International Commission on Intervention and State Sovereignty,” ICISS, December 2001, http://responsibilitytoprotect.org/ICISS%20Report.pdf 7


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The 2009 Secretary General Report further detailed this responsibility by dividing it into three pillars: the protection and responsibilities of the State, International assistance and capacity-building, and timely and decisive response. The first pillar begins by acknowledging the responsibility that State’s hold in preventing human rights atrocities is firstly an internal one. Doing so can, and should, involve becoming party to relevant international human rights treaties, the Rome Statute, and contributing to the Human Rights Council. Ratifying the Rome Statute of the International Criminal Court is an especially notable aspect of doing this, as it is an important step in ensuring accountability in the face of crimes against humanity. Ratifying however, is only the first step. For States to truly be accountable to the human rights violations occurring, they must make substantive strides towards ending impunity, the first step of which lies in in national level judicial processes. The second pillar refers to the role that the international community plays in ensuring that member states can attain the first pillar, and the third pillar refers to the role that it plays in responding to conflicts when they arise. This report also identified three factors that had unified the human rights atrocities that had occurred up until the time of the Summit in 2005: early warning signs, a dismissal of those warnings, and a failure of the United Nations to act. 10 A Failure to Act Despite repeated acknowledgements that the best way to address international security concerns is through the United Nations Security Council, we are still left with the question of what should be done in the event that the Council fails to act, either by the use of the veto or by failure to address the topic in a reasonable time. The original report establishing R2P pointed to two possible forms of carrying out action. The first turns to the General Assembly. In these instances, the Assembly could return to previous practices of calling an Emergency Special Session under the Uniting for Peace resolution, and recommend action that, although nonbinding, would equip the issue at stake with a 10

UNGA, “Implementing the Responsibility to Protect.�


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greater degree of legitimacy than it had previously held with a lack of an affirmative Security Council vote. This would, politically, increase pressure on the Security Council to act. Given that the Council has the power to authorize other member states to act by deeming interventions legal, the report fails to offer guidelines on whether or not an affirmative vote by the General Assembly under Uniting for Peace constitutes a legally valid stamp of permission. Uniting for Peace At one point, the permanent members recognized the limitations that bad faith vetoes placed on the international system. A few years after the adoption of the Charter, the United States began pushing for the adoption of the ‘Uniting for Peace’ resolution in the General Assembly as a means to sidestep the frequent vetoes by the USSR. In one noteworthy instance said to have helped convince the United States, the Security Council was only able to authorize action in North Korea because the USSR was in the midst of a boycott and was not present to cast a vote.11 Passing the resolution required an interpretive reading of the Charter as a ‘living tree’, open to change and political developments, that has been consistently supported by rulings of the International Court of Justice.12 Uniting for Peace was passed on 7 October 1950, and in its perambulatory clauses stressed both the importance that permanent Council members seek a unanimous vote and limit their veto, and that the failure of the Security Council to fulfil its duties does not excuse the rest of the United Nations for inaction. Although originally multiple clauses long, the only remaining mechanism laid out by the resolution is its Part A, which states in part that: “…if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where Sievers, Loraine, and Sam Daws. The Procedure of the UN Security Council. Oxford Univ. Press, 2014. 12 Carswell, Andrew J. “Unblocking the UN Security Council: The Uniting for Peace Resolution.” Journal of Conflict and Security Law, vol. 18, no. 3, 1 Dec. 2013, pp. 453–480. 11


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Used eleven times since its adoption in 1950, 14 the Uniting for Peace resolution is meant to give the General Assembly the power to partially make up for the Security Council’s short fallings. It is the legal mechanism developed to the solve the idea that a mala fia (bad faith) use of the veto inhibits the purpose of the United Nations. This is an important concept in invoking the Uniting for Peace resolution – while a veto is necessary, it is not sufficient, after all, the veto power was delineated to the permanent members for the express purpose that it be used. Rather, the Council has to have ‘[failed] to exercise its primary responsibility’ (that of protecting international peace and security). 15 Invoking the resolution can be accomplished in one of two ways: either through a majority of General Assembly members or through a referral of the issue to the Assembly under the resolution, made by nine of the fifteen members of the Security Council. Because referring a matter under the Uniting for Peace resolution constitutes a procedural vote, the veto power of the permanent members is avoided.16 All requests made by the Generally Assembly to invoke Uniting for Peace have been in response to vetoes made in the Security Council by either the United States, France, or the United Kingdom, while those referred by the Security Council have been usually (but not always) in response to a veto by the USSR. The General Assembly has only invoked the resolution itself four times since the document’s adoption, and the last use of it was in 1997, when the

Ibid. Udoh, Asian. “Invoking the 'Uniting for Peace' Resolution of 1950 to Authorize the Use of Humanitarian Military Intervention and Prevent Mass Atrocities in Syria.” Willamette Journal of International Law and Dispute Resolution, vol. 23, no. 1, 2015, pp. 187–231. 15 Carswell “Unblocking the UN Security Council.” 16 Udoh, “Invoking the 'Uniting for Peace' Resolution of 1950.” 13 14


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General Assembly called for an Emergency Special Session over Palestine following a request by Qatar.17 The Uniting for Peace resolution does not change a core piece of the General Assembly’s functioning; it is still a body that can only make recommendations. Thus, while the Assembly can make recommendations up to and including the use of force, these recommendations are not binding. 18 The second possibility for action turns to regional organizations instead, and more accurately addresses instances in which addressing a situation never even makes it to a Security Council vote. It would be foolish of the United Nations system to ignore the situation that surrounding member states are placed in when a neighboring country is carrying out human rights atrocities. As a group, these states will likely have a collective humanitarian, economic, and security interest in ensuring that this violence and instability does not occur. This same report recognized that: “It has long been acknowledged that neighboring states acting within the framework of regional or sub-regional organizations are often (but not always) better placed to act than the UN, and article 52 of the Charter has been interpreted as giving them considerable flexibility in this respect. 19

Soon after this statement, it also noted that: “In strict terms, as we have already noted, the letter of the Charter requires action by regional organizations always to be subject to prior authorization from the Security Council. But as we have also noted, there are recent cases when approval has been sought ex post facto, or after the event (Liberia and Sierra Leone), and there may be certain leeway for future action in this regard.” 20

This understanding is generally limited to regional organizations acting within the scope of their region – for “Security Council Deadlocks and Uniting for Peace: An Abridged History,” Security Council Report, October 2013, http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/Security_Council_Deadlocks_and_Uniting_for_Peace.pdf. 18 Carswell “Unblocking the UN Security Council.” 19 ICISS, “Report of the International Commission on Intervention and State Sovereignty.” 20 Ibid. 17


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example, it would not generally extend to NATO interventions in Africa – but underscores an important contradiction between the original 2001 ICISS document outlining the general principles behind the R2P, and the Secretary General Report issued in 2009. 21 The adopted 2005 World Summit resolution reaffirmed the responsibility of the international community to prevent atrocities through the Security Council, but never prohibited individual member action. And while the 2009 Secretary expressly discouraged individual member states acting outside of the Security Council, or without its mandate22, given that it was a report produced solely by the Secretary-General, and was not voted on, it does not hold any clear legal status above the 2001 report produced by the twelve commissioners of the ICISS.23 As a result, the legal status of intervention in the face of Security Council inaction is currently unclear. The status of actions carried out by a single state, not under the auspices of a recognized regional organization is never addressed. This last point is also of interest given that while permanent members of the Council are heavily invested in maintaining the efficacy of the veto and their authority through the Council, they have also been known to bypass the Council’s decisions in favor of individual action – although not sanctioned by the Generally assembly – themselves. Addressing the situation in Myanmar then, if the Security Council fails to act, is a necessary but legally ambiguous one. The situation only serves to highlight gaps in international laws of intervention that need to be clarified or advanced. To begin with, what is the threshold for the Security Council not acting in a timely manner? Does the General Assembly, under the Uniting for Peace Resolution, have the same authority to authorize intervention by a third party? What is the legal status of time sensitive humanitarian interventions carried out by regional organizations in the absence of immediate authorization? Of individual member states?

Ibid. UNGA, “Implementing the Responsibility to Protect.” ICISS, “Report of the International Commission on Intervention and State Sovereignty.” 21 22 23


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Despite the absence of concrete answers, the international community has an obligation to not stand by while another genocide develops under its watch. A commitment to the mantra of “never again� means both ensuring that the Security Council operates to its fullest capacity, and that there are mechanisms in place for when it doesn’t.


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LAW WITHOUT GAPS: RATIONAL JUSTICE IN SETTLER-COLONIAL NORMS JULIAN RAUTER*

This essay applies Max Weber's concept of rational bureaucracy to the Canadian aboriginal rights case, Delgamuukw v. British Columbia, to show how the seemingly impartial face of liberal justice can be an implicit vehicle for colonial violence, especially in the governance of sovereign indigenous nations.

For Weber, bureaucracy comes with two key features: standards and experts. By definition, it needs a fixed operating procedure fulfilled by trained specialists. This combination of rules and officials gives bureaucracy the character of rationality, as they allow administrative functions to be carried out “according to purely objective considerations.�1 As such, bureaucratization naturally leads to rationalization. When it occurs in the field of law, rationalization creates a system of expert jurists trained to administrate legal matters based on rational principles. This system includes judges, tasked with perhaps the least objective task of law: decisions of justice. Whether individual judges are capable of making decisions based on purely objective analysis of evidence is highly debatable; Weber pointed to the influence of other factors, including social norms, on judgment. However, it is not always clear how to tell purely rational judgments from those influenced by norms, especially in cases involving cross-cultural biases. The treatment of oral history as evidence in the Canadian Aboriginal title case Delgamuukw v. British Columbia demonstrates how fuzzy this distinction between rational and norm-based decisions is, and This piece was submitted to the Harvard College Law Review by Julian Rauter, class of 2019. 1 Weber, Max, Hans Gerth, and C. Wright Mills. From Max Weber: essays in sociology. (New York: Oxford University Press, 1949), 215. *


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how rationality may be a perfect mask for culturally-founded prejudices. Weber understands there to be three types of authority: charismatic, traditional, and legal. Each corresponds to a type of justice. He sees pre-bureaucratic forms of justice as a mix of traditional and charismatic authority. Cases were resolved by comparison with precedents, informal ethical decisions, or “concrete revelation” in the form of a message from the gods. These forms of justice depended heavily on culture, as they drew direction from the religious and moral beliefs of the judge. Weber saw in Europe a gradual replacement of traditional and charismatic justice by rational justice. This rational justice was “received along with the bureaucratization of legal administration” and therefore carried the legal authority of bureaucracy. As an ideal type, it is free of the constraints of culture because it draws its moral authority from the “rationally trained and specialized expert”2 whose judgments derive from objective consideration of evidence rather than personal or divine preference. Evidence is of course key to administration of justice. For Weber, it was a key motivation for the first invention of rational justice in Ancient Rome. In the emerging bureaucracy of the Roman Empire, the increase in complexity of legal cases demanded implementation of a “rational process of evidence.”3 Cases had too many moving parts for facts to be determined by decree of a respected authority; it was necessary to pass judgment based on a “closed system of concepts” the jurist handled “scientifically.”4 Weber is clear that the modern bureaucratic justice system does not resemble the Roman one, but it does share the Roman system’s rational and scientific character. Both adhere to the idea of justice as a calculus, where trained experts evaluate the merits of plaintiff and defendant based on a set of clear rules to determine if the evidence provided by each logically proves the truth of their claims. This results in a fully transparent rational verdict.

Weber, From Max Weber, 216. Ibid., 218. 4 Ibid., 219. 2 3


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Because evidence is so important to the process of rational justice, many of the rules used by legal experts govern what can constitute evidence. Rational justice is supported by bureaucracy, which derives much of its authority from “written documents.”5 These documents support the “rational process of evidence” governing modern justice. Especially in non-criminal cases, judges rely heavily on a large array of existing legal documents that outline the rules of the bureaucracy. Bureaucracies even create documents like deeds and licenses for the express purpose of providing legal evidence. The importance of documents as evidence reveals the scientific character of rational justice: legal documents are concrete representations of rules and facts, giving their interpretation the repeatability necessary for scientific validity. Interpretations of a document might change, but the document itself does not. This is a key feature of rational evidence; unlike the moods of the gods or the moral attitudes of the time, it exists in a fixed state. It is easy to hold documents to a high rational standard, harder to do so with experts. Human fallibility, and, more importantly, human sociality, present significant roadblocks to any judge achieving the level of rational objectivity for which rational justice is designed. Weber acknowledges that the bureaucratization of justice implies the judge as an “automaton” who turns “files and costs” into a verdict and a list of “reasons, read mechanically from codified paragraphs.”6 This is of course an ideal type, not a representation of the real world. Weber points out that though rational justice implies a “law without gaps” the idea of this gapless law’s existence is highly disputed. He is somewhat unclear on what he personally sees as the principal gaps in legal administration, but he does point out that the idea of “expertness” is not always identical with “the rule of general and abstract norms.”7 Therefore, the norms of a society ruled by bureaucracy may offer different judgments from a rational assessment by a trained authority. This possibility suggests that the “gaps” in the law may be found in those cases where the

Ibid., 197. Ibid., 219. 7 Ibid. 5 6


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judgment offered is not based on rational authority but on social norms. The question this poses is how to tell the difference between the two. If Weber must point out that they are not always identical, they must be identical sometimes. Given the ambiguity of legal interpretation, it is possible to imagine a situation in which a judgment based on social norms masquerades as one based on purely rational principles. The question of distinction between rational judgments and judgments that merely seem rational by their adherence to social norms is of interest to anthropology because it gets at the hegemony of cultural knowledge. In the bureaucracy of the modern state, it is easy to confuse tacit understandings of truth with logically deductible facts. This is primarily because the system of meanings held by the average citizen of a bureaucracy has been to a degree built around rational principles such that rationality becomes at times more a codified list of principles than a continuous process. If social norms are partly built around life in a rationalized world, decisions based on these norms will often be the same as decisions arrived at through the logical process set forth by legal bureaucracy. The ideal type of the “rational automaton” judge models a progression through evidence towards the verdict. This process is represented in the text of the decision, containing reasons and verdict. However, the actual decision happens before the writing of the verdict. Therefore, a well-trained judge could just as easily start with a verdict derived from social norms and then present an interpretation of the evidence justifying that prejudiced verdict. The rational process of evidence is inverted; it is no longer a movement from evidence to decision, but one of decision to evidence. If the decision was socially acceptable enough to appear “fair” and the interpretation sufficiently logical to appear “objective,” it would be difficult to tell it was not arrived at rationally but culturally. The marriage of rationality and culture in bureaucratic states prevent the observer from easily distinguishing them. This idea provides an avenue into the vexing question of how governance in liberal democracies can reinforce hegemonic and even oppressive cultural norms. The system for recording decisions is set up in a way that allows well-trained judges the chance to present judgments based on culturally


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hegemonic definitions of right and wrong in a way that makes those judgments appear to stem from scientific handling of evidence. Since cultural hegemony contains the unspoken prejudices created by history, the ability to disguise hegemonic ideas as rational gives the judge the power to promote these prejudices with profound subtlety. This maintains the legal authority of the bureaucracy while appearing to align with its model of rationality. The role of hegemonic norms in modern justice can be seen in states with sovereign indigenous populations. Despite the various forms of legal autonomy granted to indigenous groups, the state plays a significant administrative role in their justice. In a broad sense, this administration is the evaluation of one cultural group by another, and contentious legal battles often reveal the significant differences between the two. An example of such a battle is Delgamuukw v. British Columbia, a 1990s case dealing with the nature of Canadian aboriginal title. In 1984, a group of 71 chiefs each representing a different House (sub-clan) of the Gitxsan and Wet’suwet’en First Nations filed suit against the B.C. provincial government. They claimed jurisdiction over 58,000 square kilometers of land in the province. This claim was based on “their historical use and ownership” of the territories, as well as a rich oral history connecting them with the land. For the Gitxsan, this history is the “adaawk,” a sacred oral tradition telling of their “ancestors, histories, and territories.” Similarly, each Wet’suwet’en House has its own “kungax,” a traditional song or dance linking the House with its sacred lands.8 The plaintiffs entered their adaawk and kungax traditions as formal evidence of title. The judges’ treatment of this unorthodox form of evidence is telling for anthropological analysis of rational justice. In 1991, Justice Allan McEachern released his ruling on the Delgamuukw case. The scope, controversy, and eventual appeals of this decision are topics too deep to fully capture in this analysis. We will focus on the treatment of adaawk and kungax as evidence by McEachern and, several appeals later, by Supreme Court Justice Antonio Lamer. McEachern gave little weight to the Tehan, Maureen. "Delgamuukw v. British Columbia." Melb. UL Rev. 22 (1998): 763. 8


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adaawk and kungax as evidence for aboriginal title. However, his dismissal was not an outright rejection of the traditions as hearsay, which would be typical of this type of oral evidence. Because he acknowledged the inability of the plaintiffs to prove their history any other way given their lack of written records, he admitted the evidence based on a special exception for “declarations made by deceased persons.”9 Once thus admitted, he argued that the adaawk and kungax could not reliably demonstrate title because “they did not accurately convey historical truth” and “were insufficiently detailed.”10 Years after this, Lamer criticized this ruling for expecting it “to provide definitive and precise evidence of pre-contact aboriginal activities on the territory in question”11 when that was clearly an impossible task for a non-written text. Lamer’s decision appeared to vindicate oral history, but legal anthropologist Andie Palmer argues that it still implies oral history needs to be backed up by other forms of concrete evidence, including “written (EuroCanadian) records of the times in question.”12 The rest of Lamer’s decision called for a retrial and has been argued as a landmark in defining aboriginal title. However, its treatment of oral history is still deeply problematic for the treatment of aboriginal title. A Weberian analysis of both judges’ decisions and their critiques provide insight as to how the unsatisfactory treatment of oral history in this case demonstrates how normative biases find an ally in the rational process of justice. Though McEachern and Lamer’s views of oral history are far from similar, both attempt to formulate it in a way that evaluates its legal authority. For McEachern, this means attempted subsumption into a category allowing comparison with established forms of evidence and measurement by the standards used to evaluate these forms. Though Lamer attempts to formulate oral history in a way mindful of its true context, Palmer is adamant that he discounts the importance of oral history in Gitxsan and Wet’suwet’en societies. Far from a simple text passed Ibid. Ibid. Ibid. 12 Palmer, Andie Diane. "Evidence Not in a Form Familiar to Common Law Courts: Assessing Oral Histories in Land Claims Testimony after Delgamuukw v. BC." Alta. L. rev. 38 (2000): 1040. 9

10 11


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through generations, adaawk and kungax are products of negotiation between Houses over territorial boundaries. These are constantly re-stated at feast halls where Houses come together to negotiate associations of different Houses with different territories. For the aboriginal chiefs, the oral histories are a living document that provide “an authoritative record of past events,”13 and treating them as a simple piece of confirmatory evidence fails to give them their full weight. This failure comes from their need to imbue the oral histories with legal authority so they can find a place in the bureaucratic system. The inability to admit the oral histories on the merit of their own traditional authority at first appears a simple case of Weber’s “rationalization of the world” wherein other forms of justice are be subsumed by bureaucratic rationality. This is certainly a fair assessment, but the particulars of this domination of traditional authority are telling about the cultural norms created by bureaucracy. A central feature of any oral history is its transient character; it is by definition constantly changing with re-tellings because there is no method of physical preservation. The adaawk and kungax are especially nebulous because they are the product of continuous re-negotiation between tribal authorities, a form of traditional justice. This type of evidence is inherently contradictory to the type demanded by bureaucracy, as it does not have the fixed character of “the files” which make up the backbone of bureaucratic administration. Bureaucracies are not set up to accept the authority of nonwritten documents like adaawk and kungax because they presuppose administration of a record-keeping society. The bureaucratized justice system can only function as long as it can categorize evidence with its own rational taxonomy. When presented with a piece of evidence not designed with this taxonomy in mind, the rationally trained officials find the system’s closest analogue to that kind of evidence and attempt to measure it as they would that analogue. More often than not, it will not measure up to these standards, as they were not created to measure that kind of evidence. A barometer cannot determine 13

Ibid.


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temperature, and a system based on legal authority cannot interpret evidence from one based on traditional authority. When the bureaucratic justice system holds political sway over the traditional system, as is the case when indigenous groups file for rights in the courts of the state, it rarely if ever finds in favor of the traditional system’s evidence. This analysis is not to conclude that the rational nature of bureaucratic law ties judges’ hands in dealing with evidence falling outside their training’s purview. As we learn from Weber, the “rational automaton” judge is an ideal type and thus has no direct real-world referent. Rather, let us return to the initial premise that a society developed under bureaucracy has made rationality hegemonic, or at least encoded in norms. It was claimed earlier that this opens the possibility of a judge making normative decisions that appear rational through their apparent treatment of evidence. The judgments of oral history in the Delgamuukw case are demonstrably based on rational principles of evidence. McEachern’s desire for the oral histories to stand the test of conclusiveness, while failing to provide satisfactory results, is still perfectly rational in the context of bureaucratic justice. The primary public criticisms of McEachern were in fact not for his treatment of evidence but for the tone of his ruling, in which he called the pre-colonization life of aboriginals “nasty, brutish, and short” because, among other things, they had “no written language.”14 In light of this obvious ideological bias, the ruling against Delgamuukw seems different. However, the idea that written language is an inherent mark of civilization (and right to rule) had already been clearly articulated by McEachern in his treatment of oral history. He had already rationally arrived at the conclusion that colonization was advantageous for aboriginals through his judgment that pre-contact forms of record-keeping did not measure up to the standards of Canadian justice. While it remained coded in the language and process of rational justice, this conclusion could be seen as a legal opinion subject to critique but not dismissal. Once made explicit in McEachern’s value judgment, it became an instance of cultural

"The Delgamuukw Court Action." Gitxsan Nation. www.gitxsan.com/community/news/the-delgamuukw-court-action/ 14


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bias and thus a target of outrage in liberal society (including a UN report labeling the judgment “ethnocentric”). Had he not defended settler colonialism outright, his treatment of oral history would certainly have drawn less controversy. It would be idealistic to think the bias espoused by McEachern was simple personal bigotry. Unfortunately, the idea that “civilization” had a net positive effect on indigenous peoples is the essential premise of settler colonialism. Rendering a judgment that denies the validity of aboriginal forms of knowledge does not take an ideologue as forceful as McEachern exposed himself to be. The comparatively liberal judgment of Lamer highlights this fact; though it gave much more credence to aboriginal understandings of history, it still reinforced the idea that oral history can never have the same validity to the Canadian legal system as within aboriginal society. This idea can originate from cultural prejudices, but it can just as easily arise from an attempt to weigh oral history by the standards of rational justice. This is what is meant by the idea of rationality becoming culturally hegemonic. Euro-Canadian society has been so thoroughly built around legal authority that to assess the admissibility of a piece of evidence by the standard of social norms is often the same thing as assessing it by the rational process of evidence. The judgment on whether adaawk and kungax can have the same authority as a landholder’s deed was made centuries ago when the Crown wrote itself a deed for the very land the oral traditions protected. The oral traditions’ lack of authority is obvious from the fact that the chiefs needed to file their case in the first place. If the oral histories carried the kind of legal authority granted by bureaucratic documents, there would never be a question of aboriginal title. Weber posits that bureaucratic justice contains an implicit pressure on judges to handle cases through the most rational process of evidence possible. However, he acknowledges that this does not equate to perfectly rational judgments in all or even any cases. One of the possible reasons for this is the influence of norms on judgments. What is interesting is that Weber did not account for the influence of rationality itself on those norms. Though he certainly saw it as a cold, calculating force that increasingly


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promoted the idea of action “without regard for persons,”15 he did not fully anticipate its ability to permeate even the seemingly irrational matrix of cultural values and opinions. This is not to say this has completely happened in Euro-Canadian society, but the difficulty of disentangling settler-colonial norms from rational judgments of evidence shows that, though the two are not always identical, there are certainly cases in which they are. Rational bureaucracy has existed for long enough in modern states that it has bled over into social norms, such that it has begun to support hegemonic notions such as the positive effect of colonialism. When Weber speaks of the impossible “law without gaps,” it is understood that some of these “gaps” are created by culture. The cultural nature of these gaps invites the gaze of the anthropologist, which reveals that even these remaining cultural gaps are being gradually filled by the slow force of rationalization.

15

Weber, From Max Weber, 215


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THE LIMITS OF LEGITIMATION: THE CONSTRAINED NATURE OF COURTS IN LINE WITH THE MAJORITY NICK STAUFFER-MASON*

Relying on comparative examination of the legalization of same-sex marriage in the United States and Ireland in 2015, this paper argues that even if courts do have the political support necessary to rule in favor of social change while avoiding the widespread backlash that often accompanies landmark decisions like Brown and Roe, the democratic process is more effective at removing issues from the arena of political contestation and providing decisive resolution to debates over social change. This result casts doubt on the theory that courts can lift issues above the political fray and highlights their limitations as agents of social change.

Introduction: Courts, democratic processes, and the contested mechanisms of social change What is the role of courts in mediating societal conflict over social change? Scholars have long debated this question, and have often arrived at competing conclusions. One group of scholars believes that constitutional adjudication has the power to protect the rights of those whom the majority would not otherwise protect, to take disputes out of the political sphere and render them settled matters. Perhaps the most notable advocate of this view is Dworkin, who argues that courts have an important role in deciding matters on principle rather than on political considerations, protecting individual rights against the majority’s impulses.1 Bickel further developed this line of scholarship, This piece was submitted to the Harvard College Law Review by Nick StaufferMason, class of 2020. 1 Ronald Dworkin, “Chapter 4: Hard Cases,” in Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977). *


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arguing that courts, institutions which develop bodies of societal principle and articulate them by “legitimating” actions of other institutions, are “teachers in a vital national seminar.”2 According to this line of reasoning, courts are powerful defenders of principle against the vicissitudes of the majority,3 bounding conflict by guaranteeing a minimum level of minority rights protection. Yet other scholars have questioned the theoretical desirability of this countermajoritarian function. Waldron has argued that the undemocratic, unaccountable nature of rights-based judicial review poses serious problems in a democracy, and that rights protection would be better left to legislatures and democratic deliberation.4 Other scholars (notably Tushnet and Post and Siegel) have used this argument as a rationale for rejecting judicial supremacy in constitutional interpretation in favor of a more populist approach to constitutional law.5 In light of these competing interpretations, it remains an open question whether courts or democratic processes are better suited to evaluate rights-based claims and, by extension, intervene in societal conflicts by protecting those claims. Regardless of the theoretical desirability of courts either acting as a countermajoritarian check or acquiescing to society’s elected representatives, there remains yet another question about whether courts are even capable of implementing significant social changes. As Klarman observed, courts have a habit of siding with public opinion on issues subject to constitutional adjudication; rarely, if ever, do they actually serve as the robust countermajoritarian buffer that Dworkin and Bickel posit them to be.6 Rosenberg took this analysis one step further, providing overwhelming empirical evidence that courts cannot truly contribute to meaningful social change without the support of the

Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven: Yale University Press, 1986), 25-26. 3 Bickel, Least Dangerous Branch, 235; Michael Klarman, “Rethinking the Civil Rights and Civil Liberties Revolutions,” Virginia Law Review 82, no. 1 (1996). 4 Jeremy Waldron, “The Core of the Case Against Judicial Review,” Yale Law Journal 115 (2006). 5 Mark Tushnet, Taking the Constitutional Away from the Courts (Princeton, NJ: Princeton University Press, 2000); Robert Post and Reva Siegel, “Roe Rage: Democratic Constitutionalism and Backlash,” Harvard Civil Rights-Civil Lib. Law Review 42 (2007): 2, 32. 6 Klarman, “Rethinking the Revolutions.” 2


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broader political system and demonstrating that intervention by a court too early in the societal debate can trigger backlash which pushes change in the opposite direction.7 This scholarship, which has been expanded upon by a number of scholars,8 develops a conception of the Supreme Court (and every court, for that matter) as an entity whose power is severely constrained by the political landscape. Though this line of empirical scholarship seems to refute much of the high-minded conception of courts as agents of principle removed from the majority, Rosenberg’s scholarship leaves open the possibility of a narrow principled role for courts in facilitating social change—his model of judicial efficacy suggests that “when certain conditions are met, courts can be effective producers of significant social reform”9 in that they can validate or constitutionalize change already underway with the support of other branches of government and the polity.10 This conception evokes the “legitimating function” that Bickel ascribed to courts,11 suggesting that a limited role for courts as constitutional justifiers of majoritarian decisions could simultaneously satisfy the theoretical and empirical critics of judicial countermajoritarianism. But the question remains—how effective are courts at resolving sociocultural disputes when their rulings have the support of a substantial majority? In other words, is a court’s legitimating function still tainted by its undemocratic nature even if the conditions allowing it to further social change are present? This paper attempts to address this question through comparative examination of the legalization of same-sex marriage (alternatively referred to as SSM) in the United States and Ireland in 2015. This paper will demonstrate that even after the Supreme Court’s legalization of SSM in the United States, gay marriage and LGBT rights more broadly remain a contested

Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change?, 2nd ed. (Chicago: University of Chicago Press, 2008), 425-26. 8 For a thorough yet concise review of existing scholarship on the “Constrained Court” theory, see Michael Bailey and Forrest Maltzman, The Constrained Court: Law, Politics, and the Decisions Justices Make (Princeton, NJ: Princeton University Press, 2011), 13-14. 9 Rosenberg, Hollow Hope, 36. 10 Ibid., 422. 11 Bickel, Least Dangerous Branch, 29. 7


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issue, subject in various forms to continued lawmaking, litigation, and political debate. In Ireland, however, a popular referendum on a constitutional amendment allowing same-sex marriage largely settled the matter, establishing a political consensus that took gay marriage and the rights incident to it out of the realm of political debate. This result allows for evaluation of the respective power of courts and legislatures to implement social policy changes with substantial popular support. Taken together, these cases suggest that even if courts do have the capital and broad political support to rule in favor of social change, even if they can successfully create rights without also creating backlash, the democratic process is more effective at removing issues from the arena of political contestation and providing decisive resolution to cultural conflict stemming from social change. This result casts doubt on the theory that courts can lift issues above the political fray or, to quote Sunstein’s countermajoritarian critique of judicial activism, “rule…practices off-limits to politics,”12 even when structural conditions allow them to legitimate existing national trends in accordance with Bickel’s and Rosenberg’s theory. Instead, this paper concludes, that prerogative is reserved for the political process itself, a reality LGBT rights advocates must bear in mind as they seek to use the law to further social policy goals in the United States and around the world. Background: Same-Sex Marriage in the United States and Ireland Before delving into the argument, it is necessary to provide a brief background of the movement for and legalization of samesex marriage in each case. Same-sex marriage was legalized in the United States on June 26, 2015 when the Supreme Court decided by a 5-4 vote in Obergefell v. Hodges that the Fourteenth Amendment prohibited states from denying marriage licenses to gay couples.13 The movement for same-sex marriage began in the 1970s but did not gain real traction until the early 2000s. By 2003 the Supreme Court had found criminal sodomy bans Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, MA: Harvard University Press, 1999), 26. 13 Obergefell v. Hodges, 576 U.S. 14-556 (2015). 12


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unconstitutional14 and three state Supreme Courts had ruled to allow same-sex marriage, fueling the gay rights movement.15 After a period of intense backlash marked by passage of constitutional bans on gay marriage in 26 states,16 public opinion began shifting in favor of gay rights, and more and more states began legalizing same-sex marriage. 37 states had done so by the time Obergefell was decided, most via judicial decisions but five having done so through legislation and three through voter initiatives.17 Emboldened by state-level victories, advocacy groups began building an online and advertising presence to mobilize support.18 The inevitability of legalization became clear in 2013, when the Supreme Court required the federal government to recognize same-sex marriages.19 These legal developments were accompanied by growing political support for marriage equality, with President Obama coming out in favor before his 2012 reelection20 and a majority of senators, including three Republicans, voicing their support by April 2013.21 These legislative, judicial, and plebiscitary victories helped establish what Justice Kennedy called a “changed understanding[]” of marriage in his Obergefell opinion.22 Same-sex marriage came about in Ireland one month before Obergefell, when the Irish electorate voted in a May 2015 Lawrence v. Texas, 539 U.S. 558 (2003). Baehr v. Lewin, 852 P.2d 44, 54, 67-68 (Haw. 1993); Baker v. Vermont, 744 A.2d 864 (Vt. 1999); Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003). 16 Adam Deming, “Backlash Blunder: Obergefell and the Efficacy of Litigation to Achieve Social Change,” University of Pennsylvania Journal of Constitutional Law 19, no. 1 (2016): 279. 17 Ibid., 282; Kenneth Bartschi, “The Path to Marriage Equality and the Road Ahead,” Family Advocate 38, no. 4 (2016): 8. 18 Sean Sullivan, “Human Rights Campaign launches new marriage equality ad with Morgan Freeman,” Washington Post, November 25, 2012, https://www.washingtonpost.com/news/post-politics/wp/2012/11/25/human-rightscampaign-launches-new-gay-rights-ad-with-morganfreeman/?utm_term=.3b0a65001fce; Freedom to Marry, “Using Digital to Build the Marriage Movement,” accessed November 25, 2017, http://www.freedomtomarry.org/pages/Using-Digital-to-Build-the-MarriageMovement. 19 United States v. Windsor, 570 U.S. 12-307 (2013). 20 Deming, “Backlash Blunder,” 281. 21 Josh Voorhees, “A Majority of the Senate Now Supports Gay Marriage,” Slate, April 4, 2014, http://www.slate.com/blogs/the_slatest/2013/04/04/bill_nelson_gay_marriage_florid a_democrat_becomes_the_latest_senator_to.html. 22 Obergefell, 576 U.S. at 2 (majority opinion). 14 15


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referendum to allow SSM by adopting the Thirty-Fourth Amendment to the constitution.23 As in the United States, the debate over SSM began decades before, with the formation of Ireland’s first LGBT advocacy groups in the 1970s. Ireland’s criminal sodomy ban was the subject of constitutional challenges in the 1970s and 80s, but was not repealed until 1993.24 The Oireachtas, or Irish parliament, reacted to SSM legalization in Canada by passing a statutory ban on gay marriage in 2004,25 a provision upheld by the High Court in 2006.26 The tide began to turn when lobbying by the LGBT community led to a 2010 civil partnerships bill (though the government chose this option explicitly because it was less radical than SSM).27 Gay rights advocates continued seeking support for gay marriage from legislators in the buildup to the 2011 elections, gaining traction when the Labour Party leader declared marriage equality “the civil rights issue of our time” and added it to the Party platform.28 But there remained a lack of political will to address the issue in the Oireachtas,29 which opted to refer the question of SSM to a special Constitutional Convention along with other politically thorny issues. After extensive deliberation, the Convention (made up of 66 randomly chosen citizens, 33 politicians, and a chair) voted by a wide margin to endorse a marriage equality amendment to the constitution,30 leading the Prime Minister to indicate the government would hold a referendum on the matter in 2015, a required step in the process of amending the constitution.31 The campaign was marked by intense canvassing, rare in Irish referenda, and resulted in the highest turnout in 20

Rep. of Ireland Gov. Publications Office, “Tuesday, 26th May, 2015,” Iris Oifigiúil 42, no. 202 (2015): 1069, http://www.irisoifigiuil.ie/currentissues/Ir260515.PDF#page=3. 24 Yvonne Murphy, “The marriage equality referendum 2015,” Irish Political Studies 31, no. 2 (2016): 315, 317. 25 Brian Tobin, “Marriage Equality in Ireland: The Politico-Legal Context,” International Journal of Law, Politics, and the Family 30 (2016): 116-19. 26 Zappone v. Revenue Commissioners, 2 IR 417 (2006), discussed in Tobin, 116-19. 27 Murphy, “Marriage equality referendum,” 319. 28 Johan Elkink, David Farrell, Theresa Reidy, and Jane Suiter, “Understanding the 2015 marriage referendum in Ireland: context, campaign, and conservative Ireland,” Irish Political Studies 32, no. 3 (2017): 361. 29 Tobin, “Politico-Legal Context,” 115-16. 30 Elkink et al., “Understanding the referendum,” 363. 31 Murphy, “Marriage equality referendum,” 319. 23


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years.32 Thus, while the American legalization process took place by judicial fiat, the Irish process was the product of democratic deliberation and grassroots mobilization. Context, Constitutional Culture, and the Validity of the Comparative Method This paper relies on the comparative methodology to evaluate the relative power of courts and democratic processes to settle matters of socio-cultural dispute. The comparative method requires that cases be fundamentally similar enough to allow for sound empirical analysis.33 Fortunately, the United States and Ireland satisfy this requirement. Roughly two and a half years have elapsed since marriage equality became law in each country. Both countries restricted SSM in the early 2000s but experienced a surge of popular support by the early 2010s. Both polities also expressed similar levels of support for same-sex marriage at the time of legalization—in the United States, national public opinion polls consistently showed support for same-sex marriage at or near 60 percent in May and June of 2015,34 and in Ireland the constitutional referendum saw 62 percent of people vote in favor of legalizing gay marriage.35 That marriage equality enjoyed high levels of popular support in each of these nations at the time SSM was legalized is significant for two reasons. First, it suggests that differences in the trajectory of the debate over LGBT rights after 2015 are likely not due to differing degrees of acceptance by the population as a whole. Second, it implies that any conflict in the wake of the Obergefell ruling in the United States was not the

Ibid., 324. Ofrit Liviatan, “From Abortion to Islam: The Changing Function of Law in Europe’s Cultural Debates,” Fordham International Law Journal 36, no. 1 (2013): 125. 34 Justin McCarthy, “Record-High 60% of Americans Support Same-Sex Marriage,” Gallup, last modified May 19, 2015, http://news.gallup.com/poll/183272/recordhigh-americans-support-sex-marriage.aspx; Michael Klarman, “Why Liberals Shouldn’t Worry About a Backlash to the Same-Sex Marriage Ruling,” interview by Rick Shenkman, History News Network, July 3, 2015, ACI, http://harvard.aci.info/view/1490fd519f935c90195/14e5354e49f000c0009; Pew Research Center, “Support for Same-Sex Marriage at All Time High, but Key Segments Remain Opposed,” June 8, 2017, http://www.peoplepress.org/files/2015/06/6-8-15-Same-sex-marriage-release1.pdf. 35 Rep. of Ireland, “Tuesday, 26th May,” 1069. 32 33


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kind of widespread, structural backlash Rosenberg attributes to court decisions that come without substantial public support.36 The similarities between these cases extend beyond the specific circumstances of SSM legalization. As O’Mahoney notes, key similarities exist between the American and Irish legal systems, first and foremost the fact that both are liberal democracies with full-blown judicial review and, in defiance of their British legal heritage, written constitutions which are the supreme law of the land.37 Both the United States and Ireland also have a long history of social conservatism stemming from the influences of Protestant and Evangelical Christianity38 and Catholicism,39 respectively. As such, both nations also have a long history of intense conflicts over social and moral issues, including abortion and marriage rights. These conflicts have historically resulted in landmark high court rulings in both nations,40 suggesting a “tend[ency] to…resolve[]” social debates “through constitutional politics rather than ordinary politics.”41 In other words, the legalization of same-sex marriage in the United States and Ireland took place not just at the same and with the same level of popular support, but also against strikingly similar legal, political, social, and historical landscapes. This leaves the mechanism of legalization—judicial decree in the U.S. and plebiscite in Ireland—as the most substantial difference between the American and Irish stories. Thus, tracing the evolution of the same-sex marriage debate in the United States and Ireland post-legalization will allow us to compare the power of courts and the power of the democratic process to decisively

Deming, “Backlash Blunder,” 294. Conor O’Mahoney, “Marriage Equality in the United States and Ireland: How History Shaped the Future,” University of Illinois Law Review 2017, no. 2 (2017): 692. 38 Sanford Levinson and Joel Parker, American Conservatism (New York: NYU Press, 2016); Darren Dochuk, From Bible Belt to Sunbelt: Plain-Folk Religion, Grassroots Politics, and the Rise of Evangelical Conservatism (New York: W.W. Norton, 2011); E.J. Dionne, Why the Right Went Wrong (New York: Simon & Schuster, 2016); Steve Bruce, “The Christian Right in the USA,” in Conservative Protestant Politics (New York: Oxford University Press, 1998). 39 Elkink et al., “Understanding the referendum,” 367; Murphy, “Marriage equality referendum,” 315; Eoin Daly and Tom Hickey, The Political Theory of the Irish Constitution (Manchester: Manchester University Press, 2015), 3. 40 O’Mahoney, “Marriage Equality,” 692. 41 Ibid., 681, 683. 36 37


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resolve social conflict, independent of exogenous factors that could otherwise cloud scholarly analysis. Trends in the U.S. and Ireland Post-Legalization Having examined the history of same-sex marriage in each case and established the structural and topic-specific similarities that make for a valid comparison between them, it is now necessary to examine developments in gay marriage and the broader sphere of LGBT rights that occurred in each case after SSM was legalized. The results are striking. In the United States, conflict over rights incident to marriage, such as adoption and non-discrimination, remains commonplace, as does continued political debate over same-sex marriage itself. Meanwhile, the referendum process in Ireland appears to have settled the debate there, silencing critics and establishing a cultural consensus of equality for gay couples in all areas of life. In almost every context, the direction of change has been opposite—in the U.S. SSM opponents in government and the private sector are fighting tooth and nail to limit the cultural impact of legalization, while Ireland has been working to create a full equality regime for gay couples. Religious Exemptions: One need look no further than debates over religious accommodations for SSM opponents to see this trend. Obergefell brought the tension between religious liberty and equality to a new head in the United States.42 Many states responded to the Supreme Court’s ruling by debating broad religious freedom laws carving out protections for government employees and private business owners who, because of a belief in traditional marriage, did not wish to facilitate same-sex unions.43 More than 46 bills allowing officials to refuse to perform gay marriages and 63 other religious exemption bills have been introduced in state legislatures since Obergefell, significantly

Kathleen McStravick, “Gay Rights versus Religious Freedom and the Influence of Obergefell v. Hodges on Distinguishing the Dividing Line,” St. Mary’s Law Journal 48, no. 2 (2016): 421. 43 G.M. Filisko, “After Obergefell: The Supreme Court Ruling Settled the Issue of Marriage Equality—While Unsettling Other Legal Matters,” ABA Journal 102 (2016): 5. 42


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more than in the prior period.44 Since 2015, three states—North Carolina, Mississippi, and Kansas—have passed robust religious exemption laws allowing businesspeople to opt out of serving gays and lesbians.45 Such laws were an explicit manifestation of cultural conflict sparked by Obergefell: The Mississippi bill, for example, was described by its sponsor as “add[ing]…protection that does not exist in the post-Obergefell [world]”46 and defended by the state’s Lieutenant Governor as necessary “[i]n the wake of [that] decision.”47 These religious exemption laws are seen by many as enshrining anti-LGBT bias under the guise of religious protection, and have contributed to a reframing of marriage equality as a right in direct conflict with religious liberty.48 As a result, gay rights supporters have responded in many cases with legal challenges and other forms of resistance.49 Religious freedom (and freedom of speech) is also at issue in a case currently pending before the Supreme Court regarding the right of a Colorado baker to refuse to bake a wedding cake for a gay couple.50 All of these developments reflect continued cultural Everdeen Mason, Aaron Williams, and Kennedy Elliott, “The dramatic rise in state efforts to limit LGBT rights,” The Washington Post, updated June 29, 2017, https://www.washingtonpost.com/graphics/national/lgbtlegislation/?utm_term=.63e3235f88c8. 45 Mark Berman, “Mississippi governor signs law allowing businesses to refuse service to gay people,” Washington Post, April 5, 2016, https://www.washingtonpost.com/news/post-nation/wp/2016/04/05/mississippigovernor-signs-law-allowing-business-to-refuse-service-to-gaypeople/?utm_term=.6ce0bf86ed3c. 46 Mississippi College School of Law, “HB1523,” filmed February 19, 2016 at the Mississippi Statehouse, Jackson, MS, video, 6:35, http://law.mc.edu/legislature/bill_details.php?id=4621&session=2016. 47 Berman, “Mississippi governor,” 48 Nancy Knauer, “Religious Exemptions, Marriage Equality, and the Establishment of Religion,” UMKC Law Review 84, no. 3 (2016): 753. 49 Jonathan Katz and Erik Eckholm, “Anti-Gay Laws Bring Backlash in Mississippi and North Carolina,” The New York Times, April 5, 2015, https://www.nytimes.com/2016/04/06/us/ gay-rights-mississippi-north-carolina.html; Jon Schuppe, “Georgia Governor to Veto ‘Religious Freedom’ Law as N.C. is Sued for LGBT bias,” NBC, March 28, 2016, https://www.nbcnews. com/news/us-news/georgia-governor-veto-religious-freedom-law-n-c-sued-lgbtn546636; Mark Richardson, “Boycotts over ‘Religious Freedom’ bills could Cost Texas Billions,” Eagle Pass Business Journal, June 26, 2017, http://www.epbusinessjournal.com/2017/06/boycotts-religious-freedom-bills-costtexas-billions/. 50 “Masterpiece Cake Shop v. Colo. Civil Rights Comm.,” Supreme Court, accessed 1 December 2017, https://www.supremecourt.gov/docket/docketfiles/html/public/16111.html. 44


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contestation over the limits of gay rights at their intersection with religious freedom. In Ireland, however, the proper approach to religious accommodation for opponents of same-sex marriage has not been a source of contention post-legalization. Prior to the referendum, religious organizations were exempted from sections of the nation’s employment anti-discrimination statute relevant to LGBT individuals.51 This exemption’s impact was substantial in a country where 94 percent of schools and many hospitals are run by the Catholic Church or other religious orders.52 Yet in December of 2015, the Oireachtas voted to strip the statute of religious exemptions, eliminating the power of churches, schools, and hospitals to engage in hiring discrimination based on sexual orientation.53 This reform was framed during Seanad floor debate as a necessary follow-up to the marriage equality referendum54 and as a result of “the body politic coming together to bring about change.”55 In other words, this step by the Oireachtas was a conscious response to SSM legalization and the democratic mandate that produced it. In an analogous case to that under Supreme Court review in the U.S., an Irish commission ruled that a Dublin bakery’s refusal to bake an anti-gay marriage cake did not constitute religious discrimination, explicitly rejecting the complainant’s attempt to “balance out” gay rights and religious freedom.56 Thus, while “conflict over same-sex marriage” vis-à-vis religious liberty “has not reached any kind of equilibrium”57 in the U.S., post-referendum Ireland appears to have found a stable equilibrium in the form of expanded gay rights protections. Rights Incident to Marriage: This process has played out in other areas of gay rights as well—LGBT rights related to

Carl O’Brien, “Gay teachers say law change removes ‘chill factor’ on sexuality,” Irish Times, December 3, 2015, https://www.irishtimes.com/news/education/gayteachers-say-law-change-removes-chill-factor-on-sexuality-1.2453556. 52 Dáil Debates, 18 November 2015, vol. 879, no. 1, p. 70 (statement of Deputy Pádraig Mac Lochlainn), https://tinyurl.com/ybh8soye. 53 Equality (Miscellaneous Provisions) Act, 2015 Sec. 11. 54 Dáil Deb., 18 November 2015, 70 (statement of Deputy Pádraig Mac Lochlainn). 55 Ibid., p. 69 (statement of Deputy Jerry Buttimer). 56 Workplace Relations Commission, ADJ-00004390, July 10, 2017, http://www.lrc.ie/en/Cases/2017/July/ADJ-00004390.html. 57 Douglas Laycock, “Religious Liberty and the Culture Wars,” University of Illinois Law Review 2014, no. 3 (2014): 848. 51


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marriage remain more controversial in the United States than in Ireland. The United States has seen continued conflict over institutional recognition of and support for parentage by gay couples—four states have refused to extend the marital parentage presumption to same-sex couples and only issue birth certificates with a child’s biological mother and father, a matter that is the subject of pending litigation,58 and it took a Supreme Court decision to force Alabama to begin recognizing out-of-state adoptions by same-sex couples.59 In contrast, the Oireachtas introduced a law expanding parentage and adoption rights for unmarried same-sex couples, extending the rights already available to couples in same-sex marriages.60 Some U.S. states are actively working to limit nondiscrimination protections for LGBT individuals. For example, North Carolina passed a law blocking local anti-discrimination statutes that covered LGBT individuals, actively stripping away protections afforded by legislative majorities in various municipalities.61 As discussed earlier, Ireland took the opposite route, actively removing exemptions from and thereby expanding legal protections for LGBT individuals. In sum, LGBT non-discrimination protections are limited in the U.S. because Obergefell v. Hodges was not accompanied by the institution of a “legal regime of formal equality,”62 while in Ireland the Oireachtas appears committed to resolving conflict at the margins of same-sex marriage by erring on the side of expanded protection. Political Discourse: The most surprising divergence between these two cases post-SSM legalization does not concern legal rights related to marriage. Rather, it is the fact that political debate over same-sex marriage has continued unabated in the United States, despite the reality that marriage equality, now legal in all 50 states, is a right in law as well as in practice.

Filisko, “After Obergefell,” 59. Ibid., 60. 60 Adoption (Amendment) Act, 2017; Mayer Nissim, “Unmarried Gay and Straight Couples Can Now Adopt a Child in Ireland,” Pink News, October 18, 2017, http://www.pinknews.co.uk/2017/10/18/unmarried-gay-and-straight-couples-cannow-adopt-a-child-in-ireland/. 61 Katz and Eckholm, “Anti-Gay Laws.” 62 Katie Eyer, “Brown, Not Loving: Obergefell and the Unfinished Business of Formal Equality,” Yale Law Journal Forum 125 (2015): 2. 58 59


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Conservative politicians routinely campaign on “traditional marriage” (i.e. that between one man and one woman), with every 2016 Republican presidential candidate publicly opposing gay marriage during the campaign.63 The Republican Party platform published in July 2016, the official statement of Party policy until 2020, proclaimed traditional marriage to be the “foundation” of American society—twice.64 The document also “condemn[ed] the Supreme Court’s lawless ruling in Obergefell” as a usurpation of authority by “five unelected lawyers,”65 and “urge[d] its reversal…through judicial reconsideration or a constitutional amendment.”66 More than a year after the decision, conservative opponents of SSM retained a formal political commitment to overturning it. The Republican Senate candidate in Alabama’s ongoing special election said in October 2017, just a month before writing, that Obergefell was worse than Dred Scott v. Sandford, an 1857 ruling holding that all African-Americans were property.67 Thus, despite the reality that gay marriage is, as President Trump concedes, a “settled”68 matter in the eyes of the Supreme Court and in the court of public opinion, formal opposition to same-sex marriage remains a common trope among American conservatives, whose political arguments in favor of traditional marriage continue even two years after the nationwide legalization of SSM. This situation is in stark contrast to Ireland, where the referendum process and result largely silenced political opposition to marriage equality. The democratic nature of the Convention process was key in eliminating political roadblocks to

Jill Krasny, “Same-Sex Marriage is Now Legal. Here’s Where the Candidates Stand,” Esquire, June 26, 2015, http://www.esquire.com/newspolitics/news/a35558/gay-marriage-candidates/. 64 Republican National Committee, Republican Platform 2016 (Cleveland: Consolidated Solutions, 2016), 11, 31. 65 Ibid. 66 Ibid., 32. 67 Mallory Shelbourne, “Roy Moore: Gay marriage ruling ‘even worse’ than 1857 pro-slavery decision,” The Hill, October 24, 2017, http://thehill.com/homenews/campaign/356844-roy-moore-scotus-gay-marriagedecision-even-worse-than-1857-pro-slavery. 68 Eli Stokols, “Trump says he’s ‘fine’ with legalization of same-sex marriage,” Politico, November 13, 2016, https://www.politico.com/story/2016/11/donald-trumpsame-sex-marriage-231310. 63


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amending the constitution.69 Prime Minister Edna Kenny, a social conservative who had avoided taking a position on samesex marriage, moved quickly to endorse both SSM and a referendum after the Constitutional Convention vote, 70 citing his own personal “journey” as well as the prospect of a democratic decision as reasons for his support of the process.71 Likewise, no party objected to the Oireachtas bill initiating the referendum because the Convention, which contained representatives from every party, had established a strong “consensus” on the matter.72 The referendum’s popular ratification further tamped down political opposition to same-sex marriage. Independent TD Mattie McGrath, an outspoken opponent of the referendum in the Oireachtas, stated in an interview the day after the vote that “the people have spoken”73; Senator Rónán Mullen, another anti-SSM parliamentarian, appeared to recognize the referendum as the result of a broad cultural and political shift in Ireland, implying the “No” side was bound to fail given the “particular time and place in Irish culture.”74 Even agents of the Catholic Church recognized the need for a new approach given the degree of popular support for SSM.75 In other words, SSM opponents in Ireland responded to the referendum result not with continued contestation of same-sex marriage, as their American counterparts did, but rather by accepting it. At every stage, political opposition to same-sex marriage dissipated in the face of popular support channeled through democratic processes, leading opponents to accept cultural change as inevitable rather than resist it.

Tobin, “Politico-Legal Context,” 124. Elkink et al., “Understanding the referendum,” 364. “Enda Kenny buttered scones on TV - and talked about his same-sex marriage ‘journey’,” TheJournal.ie. Filmed May 13, 2015, video, 1:01-1:36, http://www.thejournal.ie/enda-kenny-ireland-am-2100082-May2015/. 72 Elkink et al., “Understanding the referendum,” 364. 73 “Catholic Church needs to do a reality check – Archbishop,” Raidió Teilifís Éireann (RTÉ), May 24, 2015, https://www.rte.ie/news/vote2015/2015/0523/703227same-sex-marriage-referendum-no-reaction/. 74 “As It Happened: Early Tallies Point to a Yes and No Campaigners Concede,” TheJournal.ie, updated May 23, 2015, accessed November 28, 2017, http://www.thejournal.ie/referendum-liveblog-2118864-May2015/. 75 Francis Rocca and David Roman, “Catholic Church Seeks 'Reality Check',” Wall Street Journal, June 18, 2015, ProQuest. 69 70 71


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Analysis: At this juncture, it is appropriate to acknowledge that the differences at issue between these two cases are marginal. Same-sex marriage is now a practical reality as well as a legal right in both the United States and Ireland. Even the most ardent LGBT rights advocates acknowledge that resistance to Obergefell pales in comparison to the widespread backlash sparked by Brown and Roe;76 with the exception of a few rogue Alabama counties,77 the right to marriage itself remains essentially ironclad in the United States—an estimated 123,000 gay couples wed in the year after legalization.78 Yet the results of the preceding comparative analysis are clear. Despite similar histories and socio-legal situations at the time of legalization, the same-sex marriage debate has followed divergent paths in the United States and Ireland since legalization in each country. The United States has seen continued conflict over gay marriage and rights tangent to it in the form of (1) state-level pushback against the Supreme Court’s edict via religious freedom bills, many of which have been the subject of business backlash and litigation; (2) resistance to equal recognition of same-sex parents; and (3) formal, public opposition from conservative politicians and groups. In Ireland, on the other hand, the legislature preempted conflict over issues tangent to marriage by (1) eliminating religious exemptions from nondiscrimination statutes and (2) expanding parentage rights for same-sex couples, and (3) SSM opponents responded with acquiescence to their decisive plebiscitary defeat. By every metric, the U.S. has seen continued legal and political conflict over samesex marriage and the rights related to it, while Ireland has decisively resolved each situation in favor of gay rights. Of course, some could argue that there are differences between the American and Irish experiences unaccounted for in this analysis that affected these cases’ divergent outcomes. For Filisko, “After Obergefell,” 60. Connor Sheets, “Eight Alabama counties still refuse to issue marriage licenses despite gay marriage ruling,” AL.com, October 19, 2016, http://www.al.com/news/birmingham/index.ssf/2016/10/at_least_8_alabama_counti es_st.html 78 Jeffrey Jones, “Same-Sex Marriages Up One Year After Supreme Court Verdict,” Gallup, June 22, 2016, http://news.gallup.com/poll/193055/sex-marriages-one-yearsupreme-court-verdict.aspx. 76 77


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example, it has been observed that American federalism provides numerous opportunities for state-level resistance to national policy;79 this path to resistance is not available in Ireland, a unitary state.80 This fact may account for the proliferation of state-level religious freedom laws discussed in the preceding analysis; if Ireland had a more robust system of local governance, it is quite plausible that the government of Roscommon-South Leitrim, a constituency that voted against same-sex marriage in the referendum,81 would have passed its own religious freedom bill similar to those in Mississippi and North Carolina. However, it is well-established that research based on similar case studies “does not necessitate an exact match of variables”82—the factors and trends discussed earlier constitute a remarkable divergence given the roughly similar places from which the legalization of same-sex marriage United States and Ireland began. Additionally, federalism alone certainly cannot account for the demonstrated divergence in the countries’ national political debate, which suggests significantly divergent responses to SSM legalization independent of sub-national governmental structure. Conclusions: Courts, Democratic Deliberation, and the Road to Cultural Consensus The preceding analysis suggests that there are limitations on courts’ ability to decisively resolve social conflict, even when they have the requisite popular and political support to rule in favor of change without triggering backlash. As the case of the United States shows, a high court ruling that advances the goals of social progressives can be met with continued cultural and political conflict over both the right in question and those incident to it, albeit on a lesser scale than before the decision. Crucially, this conflict is in large part due to the judicial nature of implementation. As exemplified in the Republican platform, arguments about the undemocratic and non-final nature of judicial decision-making can fuel political resistance to judicially Steven Balla, Christopher Deering, “Salience, Complexity, and State Resistance to Federal Mandates,” Journal of Public Policy 35, no. 3 (2015): 459. 80 Neil Collins and Richard Haslam, “Trends toward decentralization in the Republic of Ireland,” Regional and Federal Studies 7, no. 3 (1997): 165. 81 Rep. of Ireland, “Tuesday, 26th May,” 1069. 82 Liviatan, “From Abortion to Islam,” 125. 79


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imposed change—the prospect of overriding a decision via a repentant Court or a constitutional amendment is too tantalizing to give up the fight.83 On the other hand, as the case of Ireland demonstrates, democratically channeled popular consensus leaves little room for the opponents of change to maneuver; the “coming together” of the “body politic”84 represented by democratic processes like the Constitutional Convention and referendum renders social change both inevitable and irresistible, establishing a cultural and political consensus in favor of the change in question and setting a clear direction for the national political agenda. These insights have ramifications for the debate about the proper role and efficacy of courts in a democratic society. The inability of a court ruling to dissipate political opposition to samesex marriage in the United States seriously challenges Bickel’s conception of the judicial legitimating function. His Dworkinian argument that judicial decisions result in the “deriv[ation of] principles” that are “impose[d] without recourse upon a democratic society”85 finds no grounding in the facts of these cases. Despite the Obergefell majority’s assertion of a “fundamental right” to same-sex marriage86 derived from “four [constitutional] principles,”87 many American conservatives continue to deny that there is anything fundamental or principled about same-sex unions. Judicial legitimation of the nationwide trend in favor of marriage equality did not result in opponents meekly “com[ing] to accept it,”88 as Bickel theorizes it should. The U.S.-Ireland comparison thus conforms to Waldron’s argument that there is “no reason” to assume courts are especially capable of enforcing principles or protecting rights89 —if anything, the comparison suggests there are reasons to assume courts are especially ill-suited for this task, as the Supreme Court has yet to

See the complaint about “unelected judges” in Republican National Committee, Platform, 11, and the call for a constitutional amendment preserving traditional marriage at 32. 84 Dáil Deb., 18 November 2015, p. 69 (statement of Deputy Jerry Buttimer). 85 Bickel, Least Dangerous Branch, 235. 86 Obergefell, 576 U.S. at 5. 87 Ibid., 3. 88 Bickel, Least Dangerous Branch, 31. 89 Waldron, “Against Judicial Review,” 1346. 83


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constitutionalize formal legal structures protecting LGBT equality beyond marriage90 while the Oireachtas has jumpstarted into the process. These comparative results also complicate Rosenberg’s theory of judicial capacity, suggesting additional limitations on courts’ power not apparent at first glance. In the United States, support for same-sex marriage was substantial among the electorate and political leaders, theoretically substantial enough to overcome the constraints on change he models.91 Yet political resistance to marriage equality persists, albeit in a much-reduced form, and the margins of gay rights remain the subject of legislative and political contestation. In other words, although the Supreme Court did “produce significant social reform”92 in Obergefell by giving gay couples in many states the legal right and practical opportunity to marry, its decision did not decisively change the nature of the social debate of which marriage equality was—and is—just one part. This suggests that even when courts successfully mandate social changes that have majority support, they are still not as capable of resolving cultural conflict as are democratic processes. With this in mind, the hope for judicially imposed social change seems even more hollow. But if the U.S. shows the problems with judicial decisionmaking as a strategy for social consensus-building, Ireland shows the value of the alternative approach. As Rosenberg notes, “there is no substitute for political action”93: by relying on a democratic process that built a clear cultural consensus in favor of equality for same-sex couples, Ireland was able to avoid the tug-of-war that continues to characterize the American gay rights debate. Gay rights groups in the U.S. would be wise to heed the Irish example—though courts can constitutionalize the will of the majority, as the Supreme Court did in Obergefell, this paper suggests they are not so capable of changing the minds of the minority. Having won the legal battle for marriage equality, the task now before the gay rights movement is to translate formal

Eyer, “Brown, Not Loving,” 2. Rosenberg, Hollow Hope, 36; Deming, “Backlash Blunder,” 294. Ibid., 422. 93 Rosenberg, Hollow Hope, 431. 90 91 92


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equality to lived equality.94 Gay rights groups should pursue this goal through grassroots political action, changing hearts and minds one citizen at a time like “Yes” campaigners did during the Irish referendum—if comparative constitutional history is any indication, decisive resolution of cultural conflict is more likely to come from democratic deliberation than from the bench.

Leonore Carpenter, “The Next Phase: Positioning the Post-Obergefell LGBT Rights Movement to Bridge the Gap between Formal and Lived Equality,” Stanford Journal of Civil Rights and Civil Liberties 13, no. 2 (2017): 291. 94


INTERVIEWS SECTION


Kate Germond

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KATE GERMOND SOPHIA VARGAS STAFF WRITER

Kate Germond serves as Executive Director and Investigator of a Princeton, NJ-based nonprofit called Centurion. Centurion works to exonerate individuals who are innocent of the crimes for which they have been convicted to serve life or death sentences. Germond joined Centurion in January 1987 after reading a New York Times article about Jim McCloskey’s, Centurion’s founder, third successful exoneration case. Prior to that, she was a businesswoman and community activist in Mendocino, California. The following is a transcript of a conversation with Harvard College Law Review writer Sophia Vargas. It has been lightly edited for content and clarity.

VARGAS: Thank you for making the time to speak with me. I’d like to start by asking you about the cases you’ve encountered through your work with Centurion. From your experience, why do wrongful convictions typically happen? GERMOND: Oh my goodness, you’re starting out with the easy questions. It’s actually a whole variety of reasons, but I think at the core is racism. Our country and system of justice is extremely racist towards people who aren’t exactly like the system, which is mostly white, educated people who either dislike intensely or don’t have any sympathy for people of color, or people who are poor. That is the foundation for it. Then, the first cause for wrongful convictions is a blind focus by law enforcement (which is supported by prosecutors) on people who wound up in their sights for arbitrary reasons. In Centurion’s cases, I can always point to a moment very early on when our people should have been released as suspects: either because they had an excellent alibi, or didn’t even remotely fit the description of the suspect. For example, in one of our cases where we eventually freed a man


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named Richard Miles, Miles was arrested despite the fact the assailant was supposed to be in their 30’s, and Miles was 19. The assailant was supposed to be wearing long pants, Miles was wearing shorts, the assailant was supposed to be wearing a regular shirt, and Miles had on one of those t-shirts with thin straps. With law enforcement, once you’re in their view, no matter what evidence comes along, if it doesn’t fit their narrative, they continue forward either changing timelines or persuading witnesses to lie, change their statements, or whatever it is. They just proceed onward with getting a conviction of this person they have arrested. And that of course isn’t to say most of the people in prison aren’t guilty. However, none of them had a fair trial. I can say that without equivocation— unless they were wealthy, and then it was unlikely they were ever convicted. VARGAS: How do these situations, such as the actions of law enforcement, culture, and the challenges you face vary across the U.S. whether that be state by state or county by county? I know Centurion works all throughout the U.S. and Canada, and I imagine working in Atlanta is not the same as working in Houston or Princeton. GERMOND: I think the foundation remains the same wherever we are in the United States or Canada. Although we’ve only had experience with two cases in Canada, both errors were caused by blind focus by police on people who wound up in their sights for arbitrary reasons. But here’s the interesting thing about Canada; In Canada, when somebody has been exonerated, they do a complete post-mortem on the case. They bring in every single person who touched the case: from the person who pulled the caution tape at the crime scene to the forensic experts from both sides of the aisle. In the end, they really lay bare what the elements of the wrongful conviction were. It’s what we should be doing, but instead we just sally forth. I mean, there have been over 2,000 people who have been exonerated since 1989, never mind the people who lived before then, and in a number of these cases, close to 200, people were exonerated off of death row, and we’ve never examined it. We just keep going forward, and in my


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experience, the laws have gotten more cynical and restrictive than when we first started this work in the early 1980’s. When we first started this work, when a conviction was reversed, the prosecution didn’t appeal it. They bellowed on the courthouse steps that this was a technicality, and they were going to re-try it, and appeal it, but they didn’t. They let it go. Now, prosecutors fight us all the way to the end. It’s outrageous. Few of the exonerations in this country would have happened had not organizations like Centurion, or individual lawyers said, ‘Wow I think there’s something wrong here,’ followed it through, and been willing to stick with the case as long as it took to get that exoneration. Because, again, prosecutors fight us all the way. They hide documents, they hide evidence, and they just obstruct in every conceivable way. It’s unbelievable. The bottom line is, across the United States, I can’t really think of a place where we can go, and the prosecutor or courts will say, ‘All right, let’s just see what you got.’ Instead, everything is a fight. Very occasionally, we’ll find a prosecutor who will, with great trepidation and very timidly, not obstruct us. Instead, they will gently show us a police report we’re after that we couldn’t find or have access to. After we’ve shown them all of our cards, they might even join us in vacating a conviction. However, by and large, all across this country, everything is a fight, and it’s expensive, especially when the exoneration isn’t based on newfound DNA evidence, but field investigation. The science of DNA, and its ability to exclude somebody as the perpetrator (especially in a sexual assault case) has been unbelievably helpful for vast numbers of wrongly convicted people. However, most cases don’t have DNA evidence as a component. Therefore, what we have to rely on is bringing forward witnesses who lied at trial, and judges hate recanting witnesses. Or, we have to fight for every bit of new evidence. We have a number of cases where we’re using serologic evidence because the state either destroyed the evidence, or refuses to find it, which means we’ve had to rely on serology [a medical science dealing with blood serum, especially in regard to its


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immunological reactions and properties], which is old school. Nobody understands serology anymore, so the prosecution gets to — as we make our arguments proving our client is innocent through serology — make specious, outrageous arguments that are just completely false, and make the fights go on longer. Judges want DNA so they’re not having to make a decision about someone who’s innocent. Instead, they can say, ‘Well, science says this person is innocent, not me.’ They never use those words, but the conviction is unsafe, therefore, they’re gonna order the conviction be vacated, but by and large, judges hate our kinds of cases [non-DNA]. So, our cases wind up being extremely expensive and time-consuming. It’s really all because the prosecutors just refuse to be fair. I mean, you realize, prosecutors take an oath. Defense lawyers don’t take an oath. Prosecutors take an oath to do justice. They’re not doing justice. They’re holding the line of their predecessors, cops, and the people in their world. It’s outrageous. It’s so wrong. VARGAS: How does the state determine how much money to give, what are the ranges of values, and are there other forms of compensation besides money? Are compensation packages even paid in the majority of cases? GERMOND: Most states have a compensation package, though they vary greatly from state to state. Some ridiculously low sums exist where states can’t give more than US$50,000, which for people who have been in prison for over thirty years or even ten, is ridiculous. However, even with states with good compensation statutes, unless you’ve previously buckled down with law books and really understand the obtuseness of legal language, you have to hire a lawyer. That lawyer will take close to forty percent of your compensation, which I think is so wrong. It used to be thirty percent, until the innocence projects started asking for forty percent, and they got it. That’s become the new norm for lawyers to get in those compensation situations. The other way people can be compensated is through civil suits. But again, with civil suits, very few people have somebody to sue.


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You would think there would be lots of people to sue because this person was wrongly convicted — cops came in and lied, witnesses lied, and twenty to thirty years of their lives were stolen — it seems logical that somebody is to blame, but most laws are created by judges who were former prosecutors, and so it’s about protecting the base. It’s a really narrow window to climb through to sue somebody. It’s a complicated world, and again, lawyers take 40 percent on top of their expenses. The headline reads, ‘So and so spent 30 years in prison, and just got US$22 million.’ Well, that’s what the jury awarded. But what the person will actually get — after the other side appeals it, and then there is an ultimate compromise where the exoneree will agree to so much money — is not a lot. My friend, Gerry Conlon, who was convicted in the 1980’s of being an IRA pub bomber, and then exonerated, used to say, ‘Giving me a million dollars was like giving me a loaded gun because I’ve got raging PTSD, was a poor guy growing up, and am totally illequipped to manage this money, so it gets squandered and lost.’ Here at Centurion, we’re really lucky; most of our exonerees are doing O.K., but there are some who just can’t get out of their own way, and it’s heartbreaking. They’re usually the ones who can’t get any sort of compensation. VARGAS: A lot of this has been saddening. It seems like we’re going in the opposite direction we ought to be moving in. What is one of the biggest advances, or pieces of progress you’ve seen in the time you’ve been doing this work? GERMOND: Where there’s been progress made is on some policy things. New York, for example, hosted a forensic science panel where a group of arson experts got together to set new standards and address old myths about fire patterns, hair evidence, etc. Faulty arson science has been a weakness in forensics, and has led to many wrongful convictions. It’s these kinds of things that make a difference. Today, police departments are having people look at mug shots sequentially rather than in a mug shot spread. On top of that, the people who are working cases are not part of the process where witnesses look at mugshots, ensuring the


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person who administers the mugshot identification is somebody who doesn’t know who the police have in mind. Frankly, do I believe police are doing this consistently? No. But, it’s a beginning. So, there’s been a number of things like that that are good. Nowadays, you’re supposed to be recording interviews and interrogations with defendants. That’s very shaky at this point, but I do believe down the road, the next generation is going to see fruit from these changes. I don’t think we’ll go backwards. I think the generation of law enforcement and prosecutors who have been asked to use these methods are still trying to figure out ways around them, and then just plain old not doing it, but over time, this will be how things are done. So, that’s all good. VARGAS: What is a typical day like for you? GERMOND: The old days — when I was both the director and an investigator at Centurion — were my favorite days. Then, I worked with staff on developing cases, and worked in the field: knocking on doors and actively participating in trying to get somebody exonerated. Now, my life is very different. Since being promoted to the position of Executive Director, I’m spending more time having to fundraise, meet potential donors, and do other things like that. The good news is I’m getting to talk about Centurion a lot, which I like. At least once per week, I’m talking to an exoneree, which is another wonderful part of my job. VARGAS: Like you said, you enjoy talking about Centurion. You’ve been doing this work for years now, and you’re passionate about it. Can you tell me where your conviction comes from — for justice, this line of work? Why did you get involved? Why do you care so much? GERMOND: I’ve always been an old, lefty liberal, and pretty cynical about the criminal justice system. I have no idea why. I never met anyone who was convicted of anything in my childhood. I was raised white, upper middle class, and it has been a concern of mine, but certainly nothing I ever expected to be a life


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commitment. That happened when I opened up the New York Times in 1986, and there was an article about Jim McCloskey [Centurion’s founder]. I thought what he was doing [working on his third exoneration case] was interesting. I called him up, we met, I thought we could get along, and I’ve been doing the work ever since then. Before 1986, my life was always separated; I had a work life, and I had a volunteer life, and the volunteer life had to work around my work life. Now, it’s wonderful to be able to do one thing, and one thing well. To see things through, as opposed to having to stop, and go back to work. I’m really furious about the criminal justice system, so that drives me to no end, but our exonerees are the most extraordinary people you could ever possibly meet. They’re forgiving, generous, loving. They’re the best friends and family you could possibly ever have. VARGAS: You mentioned this interest in criminal justice reform even before it was your day job, if you will, and having that interest from when you were really young. Is there any advice you would give to college students in the United States interested in criminal justice reform? GERMOND: I would encourage them to read, read, read. Even if you don’t want to be a lawyer, you should look into volunteering at a legal aid place, or if your college has a law school attached to it, go volunteer at its pro-bono unit. We have some people on staff at Centurion who are lawyers, but those aren’t the skills we’re asking them to use. We’re asking people to use their brains in assessing cases. If you’re concerned about the criminal justice system, there’s no better place to start than going into the belly of the beast. That helps you shape and form your path. It certainly did for me. Go find someone who’s doing this work, and present yourself to them. VARGAS: That’s great advice. Are there any other insights you’d like to share with students? GERMOND: When you read in the newspaper that there’s been a terrible crime, and someone’s been arrested, don’t immediately assume it’s the right person. Read the article with a certain


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amount of entrusted skepticism. Here and there, the wrong picks are made. We need to be a lot more circumspect and careful in how we read articles because generally, as a rule, when there’s an article about a crime, the information has come from the police and the prosecutors. They’re not the most reliable source for impartial and fair reporting of that. When someone tells you something, think about it. VARGAS: That’s important. It’s something that is easy to incorporate into daily life, and applicable even more broadly. Thank you for being so generous with your time, Kate. I really appreciate it.


Mark Strand

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MARK STRAND MARGARET LEATHERWOOD STAFF WRITER

After 24 years, on Capitol Hill, Mark Strand has garnered an extensive relationship with the law in its creation, in the politics of passing, and in its execution. During his time in D.C. he served as Chief of Staff to former Missouri Senator Talent and former Republican Representatives Stan Parris of Virginia and Bill Lowery of California. Strand also received a master’s degree in Legislative Affairs from George Washington University, where he is currently an adjunct professor in the Graduate School of Political Management. Strand now serves as President of the Congressional Institute, a corporation focused on holding legislators accountable to the needs and wants of their constituents and has written a book entitled Surviving Inside Congress. The following is a transcript of a conversation with Harvard College Law Review writers Margaret Leatherwood and Nicole Sturgis. It has been lightly edited for content and clarity.

LEATHERWOOD: What does the legislative process look like? STRAND: The process of legislation is always unique—art of it is plagiarism, part of it is creativity. My very first day on the Hill, I was a junior legislative assistant and they asked me to draft a bill. It was a peculiar portion of law that had to do with disapproving a resolution passed by the D.C. City Council. I did this by finding the last version of a bill someone crafted on a different but similar subject, replaced all the proper lines, and was able to write the bill. That was an exercise of plagiarism. Sometimes, when you are doing something creative it takes many people coming together in order to compromise and craft the best language to properly execute the bill. The bigger the project, the bigger the goal, and the more complex the process of making it.


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STURGIS: How do you close the gap of understanding between the constituents and the legislators serving them so that they are on the same page when you are creating laws? STRAND: It’s always a big issue. In fact, it is perhaps one of the greatest challenges today, as the world gets more complex. I’m not sure if people are becoming better educated in civics than they were before, and as a result, people are trying to explain things by oversimplifying or by doing it in a way that arouses passions rather than stimulates debate. I think one of the biggest problems in politics today is the relative ease with which people divide others, as compared to the apparent difficulty of bringing people together. Our whole process designed by our constitution was meant to be consensus-driven. There is a reason why we have not passed a constitutional amendment in nearly 30 years, and really— since we passed the original ten amendments in the Bill of Rights— there have only been 17 amendments to the Constitution in over 230 years. This is because in order for us to do important things, there must be a consensus, which means getting a broad number of people on board and that no single group of people can impose change on another group. This means compromise. This means legislation that can satisfy both groups. One of the most important bills I was involved with was the 1996 Welfare Reform Act, which we originally wrote and it became part of the Contract With America. That bill changed many times over the next two years as we first negotiated with our own side, then with the Democrats in Congress, then with the Clinton Administration. We kept working on making the language better— it was vetoed twice— but we kept working to find a consensus on how we could work together to pass it. In the end, we passed a transformative bill that repealed the first entitlement program ever repealed, put a lot of people back to work, and changed a lot of lives. But it took constantly going back and compromising to figure out how two different parties could work for a common purpose.


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LEATHERWOOD: Your work at the Congressional Institute was aimed specifically at narrowing the gap between the constituents and the legislatures. Can you tell us a little more about that? STRAND: It is much different than being on the Hill and in the center of the action, but it is very much supporting the entire institution. Particularly, I spent a lot of time working with Republicans on retreats where the whole goal of the retreat is to get them to step back, think, plan, and figure out how to solve complicated problems. I have really enjoyed my role at the Congressional Institute, as it allows me to still work with Congress and supporting the Institute in a niche way, since there are not many people supporting Congress right now. At the same time, try to advance what I think is important— like how Congress can regain back the power given to it by the Constitution. STURGIS: How do you think reform can happen so that bills do not get stuck in Committee for years which tends to lead to watering down of bills, or do you think this process is beneficial and doesn’t need to be changed? STRAND: Largely, we can’t be overanxious to pass legislation, since our government is fundamentally different than a parliamentary system where you pass your mandate, control the prime minister, control the legislature, and have all the tools of power to continue making unopposed change. Our system was not designed to do that. We have multiple parties with multiple points of view all concurrently holding positions of power. The inefficiency of our system is a feature, not a flaw. It wasn’t supposed to be easy to pass things. At the same time, it can go too far the other way. Recently, things have been appearing to be too stuck, partly because congressional process has been broken down. There is a need for reform and it partially has to do with the congressional budget process, 90 percent of the members of Congress have not seen the budget passed on time and according to law. Almost no one has seen it done right. We need to switch to a two-year budget process to give time to the authorizers to pass the legislation and to have the oversight they need over the


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executive branch of government, so they can review all the individual programs on their effectiveness to reduce the need for stop-gap spending bills. We also need to address the filibuster in the Senate. When you think of Paul Ryan, he has two major priorities this year: health care reform and tax reform. Regardless of what you think of those two positions, he had to introduce both of those two major priorities on the Reconciliation Bill, which is basically a major loophole in the Budget Act of 1974. The reason they use it is because it can’t be filibustered in the Senate. But it is very limited in what you can do. The Republicans have all these priorities they wanted to put in the bill, such as using insurance across state lines and enhancing Health Savings Accounts, but they can’t pass that under the Reconciliation Bill. They will have to wait until April. The reason they did this is that the Senate doesn’t work anymore. The filibuster becomes such a drag on process and has lost its original purpose. The purpose of the filibuster was a lot like the story George Washington told to Thomas Jefferson. Jefferson came back from France after the Constitutional Convention and he asked Washington why he created the Senate since it reeks of nobility like the House of Lords. Washington countered by asking, “Why do you pour your tea in the saucer,” to which the reply was, “To cool it”. Indeed, the original purpose of the Senate is to cool the hot passions of the House. As a tool for consensus, the filibuster is not a bad idea. If a party has 52 members, you should be able to modify the bill significantly enough to get eight of the minority members to approve of it. But if the strategy is to just filibuster everything, that doesn’t work anymore. We had a nominee from Idaho that was up for confirmation in the Senate. He had originally been opposed by Obama and then with the term change President Trump renominated him, but he was filibustered the entire time. Yet when the filibuster was lifted, it passed 100 to zero. Why were people engaging in the filibuster? Well, it appeared that it was just to stall and not get things done. The old saying from the Senate is that the majority determines what comes to the floor but the minority determines when it leaves. And that is partly because of the power of the filibuster. The minority is not going to


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let anything leave with the system being this broken. I think we can modify the filibuster in various ways perhaps by eliminating calling the previous question, which is basically an agenda tool for bringing something else up on the floor. Or you can place rules to force the Senate to actually engage in a physical filibuster. The Senate system now goes to a dual track approach so that if something is going to be filibustered the majority leader can switch to another bill. This will allow them to carry on Senate business. This makes most filibusters silent and no one actually conducts the Filibuster. Most people are aware of the Mr. Smith Goes to Washington Filibuster—which everyone should watch if they have not. But most filibusters do not occur this way. People actually engaged in the filibuster, staying on their feet should be mandated so Senators will be more strategic about when to use the filibuster. I think that would be a big help. LEATHERWOOD: You mentioned the current conservative Congress and their struggles with gridlock. Do you see a way forward where they can pass legislation? STRAND: Yes, but it’ll be hard. I mentioned the conservative Congress, but it’s true regardless of whether it is Republicans or Democrats who are controlling Congress. The House has become very leadership-focused. The Rules Committee controls everything, including what comes to the floor. The committee process has become weaker, and this is true regardless of whether it is a Democrat or Republican speaker. Whether it is a Republican chairman or a Democratic chairman, the system has drifted very much to a leadership system. The House leaders negotiate directly with the President of the United States. Then you have 535 other people that are supposed to vote on what they negotiate— I don’t think that is how Congress is meant to work. In fact, I think that one of the biggest breakdown between the parties is that the majority does not let the minority have much power. That seems counterintuitive— why would the majority want to give the minority more rights? That’s because this actually gives the majority more power. If the minority gets a stake in the legislative process that means they are going to participate more in the bill. If they for instance pass an


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amendment, odds are they will vote for it if you get bipartisan majorities for legislation. One of the reasons I support the restoration of an honest and open earmark process is to allow members of the minority party to pass legislation important to their home district. This allows them to still deliver to their constituents for local issues. Then they will have an interest in passing the legislation even if they don't support everything that is in it. I think one of the biggest solutions to fixing congress is to allow legislatures to legislate. STURGIS: What was your take on Senator John McCain voting down on the health care reform and repeal bills because he didn’t see the Republicans incorporating the minority party in order to craft bipartisan legislation? STRAND: I have to respect John McCain— he is a person that has been there for a long time and has been a hero as well as an overall great American. I think that his point is well taken. I think that a big problem with the Affordable Care Act is that it was one party imposing their bill on the other without a single Republican vote. I think he was saying that the repeal of Obamacare was also one party trying to change it without any input from the other party whatsoever. The question is, can they now come to a point where they can all agree that they need to do something? Can they agree that it is failing and that the health care exchange will collapse if we don't do anything? Can we do something and not call it repeal? We need to tell our base that we passed something since the status quo is not working. Was he one person that was taking that stance while the entire other party was unwilling to compromise and was it the right time to take that position? Reasonable people can disagree on that, but I think his overall point that transformative legislation needs to be bipartisan is right. If the two parties won't work together on bills nothing of importance will be passed. Our system simply doesn’t allow it. LEATHERWOOD: Looking specifically at your book Surviving Inside Congress, it seems that it was aimed at filling some gaps. Staffers who arrive on the Hill seem to be ill-prepared— even


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some of the ones that have been there for a while. Do you think this is a prevalent issue of people in the government not being able to do their jobs? STRAND: It is absolutely one of the most prevalent issues in Congress. They have a sort of baptism by fire-trial, where they throw you into the lake and see if you can swim, and if you drown you try someone else and see if you can swim then. This is one of the problems on the Hill, we bring all these people in to work for this institution that is at the center of national controversy and expect them to know what to do. That can work in offices that have a really strong culture where there is a common purpose as to why they are there and they treat each other well, but what sometimes works is you get in and try to figure out what your role is and then try to learn how to do it. In my situation, I got lucky. Someone else had already written a similar enough bill on my first day that I could base my work off of since I didn't know what to do. But who is going to teach? There are a ton of resources, but it is hard to use them since there are a million things to be doing from the first day. I think that it is a mistake. Congress is run by a lot of young people— the average age of a staffer is 27. These are not seasoned professionals as in the staffers in the executive branch that have worked their way up the ranks. You serve at the pleasure of your boss and there are no protections. When people come here, they anticipate and expect to participate immediately since they have a great education, but this does not prepare you for the real life issues of passing legislation and dealing with constituents. You can not be a legal expert, customer service expert, and manager of the staff all at once; chiefs of staff never get their job because they have an MBA, it is because they are good in legislation, communications, press. Eventually they are skilled enough to manage up to 70 people, which is a very great challenge that takes time to work up to. Part of my goal is to help people get a leg up on some of experiences, as many of the lessons come after the exam and that the school colors are often black and blue. I want to help some of the people coming up through the ranks to learn some lessons on paper that I dealt with in reality.


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LEATHERWOOD: Harvard College Law Review, in part, gives advice to students who are considering law school. Since many policymakers went to law school, do you see that contributing to politics and is it helpful to have that legal background? STRAND: It’s not necessary on the Hill to have a legal background. But if you are going to part of the legislation process, it is obviously very helpful to have that background that you get through going to law school. Poorly written laws are a problem in society and in Congress. Part of this problem is that a lot of the people leave to go downtown to the better paying jobs in lobbying, while the Hill is left with people that have minimal experience. Mistakes are bound to happen because of this. There was one time when President Bush had to veto a law because it was sent to him in the wrong form so they had to repass it just because they got the form wrong originally. At the same time, just a law degree by itself does not make you qualified for the Hill. One of the things that we mistakenly think in this knowledge age is that information by itself is all you need. Information is just a tool. You need more than that, you need your heart and your head, and so you don't go to the Hill just for developing your legal background—you go to the Hill for a purpose you believe in. My problem with people getting a Harvard law degree is they don't come to the Hill because the salaries are nowhere near what they would get from a firm. But it is essential to get people that are highly qualified to come to the Hill for a little while to get to know how laws are made and understand how it affects lives. Laws are not just words, they have consequences, meaning, and value that can hurt or benefit people; it is important for young lawyers before they go out and practice the law. LEATHERWOOD: What about the American legislative process makes you hopeful for the future? STRAND: I think the most important thing about the legislative process is the people. When the people get tired of the current politics, they will cause it to change because there is nothing more important for a member of Congress than getting reelected, which keeps them in touch with their constituents and what they think.


Mark Strand

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Right now the people are angry. So the legislators are being driven by people who are angry, but soon they will see that is a dead end because Americans tend to be optimistic and innovative. When they get tired of their anger, they will go back to this— which I am hoping comes soon. Also, Congress frequently breaks down. This is not new; we have been divided before. At least now we aren’t beating people to death on the Senate floor or House chambers, as we’ve seen in the past, or the Vice President shoot the former Secretary of the Treasury, as that has happened before too. But periodically Congress meets and we form a joint committee on the reform of Congress. About every 20 years this happens and they bipartisanly make recommendations on how to better the process. I am anxious for this to happen again, but eventually they will get tired and want to pass things again and fix the slow pace of change that we are currently experiencing. LEATHERWOOD: Are you familiar with the TV shows House of Cards or Scandal? Just as a reference point for readers who may be familiar with the shows, and not as familiar with the inner workings of the Hill, do you think these are accurate representations of what working in the federal government is like? STRAND: I refuse to watch either show. I don’t want people to think that is what Congress is actually like. It is not accurate. Congress is made up of a lot of really good people, and most are decent and trying to do something that they believe in. I think that House of Cards makes Congress look more manipulative and evil than it really is. It’s a divided body right now because we are living in a very divided country. When you are designed to work by consensus but there is no consensus in the country, it is hard to make agreements. We can see points on both sides that leads to frustrations, but the angry voices are the only ones we can hear. The legislative process is designed to allow people with fierce disagreements to talk to each other on the grounds of respect. Maintaining manners are most important—you need them because they are a social construct that allows you to talk with people that you disagree with or don’t know. Restoring civility to our government is not done by throwing people from subways like


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Harvard College Law Review - Interviews Section

Frank Underwood. It's by coming to the table and making agreements in an undramatic way that is nowhere as exciting as these shows, but much more real. If I were to make a recommendation though, I would watch Mr. Smith Goes to Washington or The Candidate instead— or even the West Wing. I’ve never understood how a Canadian can be that good as the American President, but it seems to work.


Fall 2017 Issue  
Fall 2017 Issue  
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