UCLA Undergraduate Law Journal - Volume XXI

UCLA UNDERGRADUATE LAW JOURNAL VOLUME 21

SPRING 2022

ARTICLES When Court-Made Rules Fail: Leveraging the Private Market to Stop Misinformation in Advertising Patrick Ma – UCLA

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A Judicial Divide and an Absent Supreme Court: The Need for a New Standard In Evaluating Social Media Speech within the School Environment Japji Singh – UCLA

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The Future of Public Charge Carmen Le – UCLA

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Abortion Rights in International Law: The Inter-American Human Rights System and a Post-Roe v. Wade America Mischa Gureghian Hall – UCLA

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Conventions without Constitution: How Humanitarian Law and the Laws of Armed Conflict Falter in Non-International Armed Conflict Tony Maquiling – UCLA

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Uti Possidetis Juris: A Solution for the Sino-Indian Border Conflict?

Ira Phatak – UCLA

108

Criminalization of Homelessness: An Evaluation of Hostile Architecture Talia Boyadjian – UCLA

133

The FBI Agent in Your Phone: The Legality of Mass Surveillance and its Capitalism 152 Micah Mekbib – UCLA

UCLA UNDERGRADUATE LAW JOURNAL VOLUME 21

EDITORIAL BOARD

SPRING 2022

Editor-in-Chief Camille Schaefer Managing Editor Daniella Efrat Senior Editors JT Keane Natalie Jiang Executive Articles Editors Rafay Siddiqui Olivia Bielskis Amanda Kim Editors Catherine Hamilton Gali Hoffman Valentina Macchione Lauren Enge Gia Ahuja Mustafa Ahmedani Fatima Jaber Ali Pond President Julie Laporte Vice President Ani Ghazarian The UCLA Undergraduate Law Journal is published every Spring quarter by the UCLA Pre-Law Society, located at 4272 Bunche Hall, Los Angeles, CA, 90095. The journal is a student-produced publication written entirely by undergraduate students from UCLA and other universities with the aim of furthering undergraduate legal research. Copies are available at the Pre-Law Society office as well as online at the Pre-Law Society website: www.uclaprelawsociety.com.

FOREWORD It is a great honor to present Volume 21 of the UCLA Undergraduate Law Journal. In its twenty-first year, the Journal continues to be the foremost publication of undergraduate legal scholarship in the nation.

Since its inception, the Journal has been a unique opportunity for undergraduate students at UCLA and beyond to examine pressing issues of our time using a legal framework. Notably, the Journal provides this opportunity to students regardless of their background, interests, or field of study. Volume 21 sees contributors challenge the status quo by raising pertinent legal questions such as when should student speech made on social media be regulated by schools? How can the private market be leveraged to stop misinformation in advertising? How might an international approach to reproductive rights be utilized if Roe v. Wade is overturned?

This Volume’s contributors make up some of the most talented and thoughtful in our Journal’s history.

The Executive Editors evaluated each applicant with great consideration, and we ultimately selected a cohort of exceptionally brilliant, hardworking, and tenacious writers and editors. Over the course of the volume, each contributor engaged in extensive collaboration to develop the articles in this publication.

As I conclude my third and final year with the Undergraduate Law Journal, I would like to thank Anna Yan (Editor-in-Chief, Volume 20; Managing Editor, Volume 19) for the invaluable guidance and needed perspective she provided me consistently this year. Succeeding an Editor-in-Chief as dedicated and thoughtful as Anna is an honor in and of itself. I would also like to thank Daniella Efrat (Managing Editor, Volume 21; Writer, Volume 20), Natalie Jiang (Senior Editor, Volume 21; Copy Editor, Volume 20), and JT Keane (Senior Editor, Volume 21; Copy Editor, Volume 20; Writer, Volume 19) for serving as my fellow Executive Editors. Their tireless work and keen attention to detail allowed us to capitalize upon our opportunity to progress the journal and produce a volume of pristine quality. Finally, I would like to thank all of the writers and editors of Volume 21 whom I had the privilege to work with. I have learned abundantly from each of you and truly admire your dedication to research, argument, and challenging some of the most salient legal issues we see in our society. It is my hope that the articles in this volume and those in future volumes will continue to inspire needed critical thinking, deep conversation, and persistent action to create a better, fairer legal system.

Camille Schaefer Editor-in-Chief Volume XXI of the UCLA Undergraduate Law Journal

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UCLA UNDERGRADUATE LAW JOURNAL Patrick Ma ∗

When Court-Made Rules Fail: Leveraging the Private Market to Stop Misinformation in Advertising ABSTRACT. The internet has given large corporations huge platforms to spread misinformation in their advertising. Due to the statute of limitations defense, government agencies are unable to effectively discourage this misinformation by themselves. Companies using the defense are more protected from government-led lawsuits, giving them little reason to stop making those misrepresentations and allowing them to get away with spreading more false information. Traditionally, for situations when the statute of limitations defense has produced inequitable results, courts have developed exceptions to the usual rules of the defense. However, none of the exceptions permit the government to discourage consumer fraud without dismantling the statute of limitations defense. This article argues that because of the statute of limitations defense, government agencies alone are unable to stop misinformation in advertising. Therefore, agencies should focus their broad investigative powers on exposing the fraud and stopping it with injunctive relief.

Joint action by the government and the private market will discourage misinformation in advertising without doing undue damage to the statute of limitations defense. ∗

Patrick Ma is a third-year at UCLA majoring in Human Biology and Society and minoring in Public Affairs. He thanks his editor Catherine Hamilton for her thoughtful feedback and editing.

He also thanks Gabe Schaeffer and Tina Charoenpong: Gabe, for first introducing Patrick to the statute of limitations defense in fraud cases; and Tina, for her continued insistence that Patrick take a gap year.

Editor: Catherine Hamilton is a first-year from Atlanta, Georgia, double majoring in English and Political Science. She plans to go to law school after undergrad to pursue a career in criminal justice reform or international law.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction With digital content and social media becoming a bigger part of American life, the U.S. government’s role in discouraging corporate misinformation must be reexamined. From Instagram and Twitter to late-night infomercials, large companies have gained huge platforms to make false and misleading statements about their products and services. Whether they are pharmaceutical companies promising the safety of dangerously addictive opioids, for-profit schools showing off campuses that do not exist, or big banks pushing their lenders towards fraudulent subprime loans, big corporations have used these online platforms to reap massive private profits. 1 Public entities like government agencies are playing an increasingly large role in stopping this misinformation. In the wake of the Great Recession of 2008, Congress created the Consumer Financial Protection Bureau to safeguard consumers from unscrupulous banks and loaners.2 In more recent years, states have quickly expanded the branches of their justice departments that are responsible for combating consumer fraud.3 This article will focus on one department in particular: the California Department of Justice (CA DOJ) which enforces the Unfair Competition Law (UCL) and the False Advertising Law (FAL). 4 In enforcing two of the strongest consumer protection statutes in the country, the CA DOJ is a good model for a government’s role in stopping consumer fraud as well as the limits of that role. The UCL and FAL allow the

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Jan Hoffman, Purdue Pharma Is Dissolved and Sacklers Pay $4.5 Billion to Settle Opioid Claims, N.Y. TIMES (Sept. 1, 2021), https://www.nytimes.com/2021/09/01/health/purdue-sacklersopioids-settlement.html; Richard Pérez-Peña, Federal Lawsuit Accuses For-Profit Schools of Fraud, N.Y. Times (Feb. 19, 2014), https://www.nytimes.com/2014/02/20/us/lawsuit-accuses-forprofit-schools-of-fraud.html; Rebecca Davis O’Brien, Ex-Executive at Deutsche Bank Accused in Subprime Loan Case, The Wall Street Journal (Sept. 11, 2017), https://www.wsj.com/articles/ex-executive-at-deutsche-bank-accused-in-subprime-loan-case1505180613.

2 Alan Rappeport, Under New Leadership, the C.F.P.B. Lives On, N.Y. TIMES (Dec. 19, 2018), https://www.nytimes.com/2018/12/19/us/politics/new-leadership-cfpb-name.html.

3 The Office of the Governor, Governor Newsom Signs Consumer Financial Protection Legislation to Combat Predatory Practices and Increase Transparency, Office of Governor Gavin Newson (Oct. 4, 2021), https://www.gov.ca.gov/2021/10/04/governor-newsom-signs-consumer-financialprotection-legislation-to-combat-predatory-practices-and-increase-transparency/.

4 Julia et al., 2020 Annual Overview of California’s Unfair Competition Law and Consumers Legal Remedies Act, STROOCK (March, 2020), https://www.stroock.com/news-and-insights/2020annual-overview-of-californias-unfair-competition-law-and-consumers-legal-remedies-act.

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WHEN COURT-MADE RULES FAIL: LEVERAGING THE PRIVATE MARKET TO STOP MISINFORMATION IN ADVERTISING CA DOJ to seek civil penalties for misrepresentations and injunctive relief to prevent further false advertising from being carried out. 5 However, both laws have statutes of limitations that set time frames for when a lawsuit can be filed, weakening the CA DOJ’s ability to stop misinformation in advertising. 6 As a consequence of the statute of limitations, a curious situation arises: companies are further protected the longer they get away with spreading false information, giving them little reason to stop making those misrepresentations. When the statute of limitations defense leads to unintended results, the courts usually apply equitable exceptions to shift back to original policy goals. 7 However, when it comes to consumer fraud, none of the exceptions produce equitable results.

The CA DOJ alone is unable to effectively discourage consumer fraud without crippling the statute of limitations defense. Therefore, the department should reframe its role to work alongside private parties such as individual plaintiffs. Instead of attempting to stop corporate misinformation with penalties and injunctive relief, the CA DOJ should focus its investigative powers on eliminating the bad act itself and stopping it with injunctions. Once the misrepresentations have been uncovered, private plaintiffs can pursue lawsuits that face less restrictive statute of limitations rules than government-led lawsuits. Even if the fraud over an extended period of time, knowing that private plaintiffs can sue long after the misrepresentation occurred will dissuade corporations from committing any fraud at all. Ultimately, a joint effort between the CA DOJ and individual plaintiffs will stop companies from making false and misleading statements about their products and services.

This article has three parts. Part I will discuss the UCL and the FAL and their statutes of limitations. Part II will examine the four equitable exceptions to the statute of limitations recognized by the California Supreme Court and why each exception is unsuitable to be used by the CA DOJ to discourage fraud. Part III will argue that to effectively stop companies from making false and

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Colgan v. Leatherman Tool Group, Inc., 135 Cal. App. 4th 663, 701 (2006).; People v.

Overstock.com, Inc., 12 Cal. App. 5th 1064, 1088 (2017).

6 Cal Bus & Prof. Code § 17208 (LEXIS NEXUS 1941).; CA CIV PRO § 338.

7 Aryeh v. Canon Business Solutions, Inc, 292 P.3d 871 (Cal. 2013).

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UCLA UNDERGRADUATE LAW JOURNAL misleading statements, the CA DOJ cannot act alone but must work in conjunction with private plaintiffs.

I.

The UCL and FAL and Their Statutes of Limitations

The UCL and FAL both prohibit companies from making false and misleading statements in their advertising. 8 A corporation that makes one misrepresentation violates both laws, allowing the CA DOJ to use the UCL and FAL to pursue two civil penalties for one act. 9 To be liable for penalties or injunctive relief under the UCL and FAL, a defendant must have made a misrepresentation negligently. 10 There is no need to show that the misrepresentation was made intentionally, a much higher standard that is harder to prove. 11 Both the CA DOJ and private plaintiffs may use the UCL and FAL in court to pursue injunctive relief and restitution. 12 Injunctive relief is a court order for defendants to act a certain way, such as requiring them to take down misrepresentations or make affirmative statements correcting those misrepresentations. 13 Restitution is monetary compensation for damage done. 14 Unlike private plaintiffs, the CA DOJ can also pursue civil penalties, which go a step beyond restitution as a form of punishment and labels defendants as wrongdoers. 15 While the UCL and FAL are both powerful laws, each is restrained by a statute of limitations that sets a maximum amount of time a plaintiff must initiate legal proceedings. The UCL has a statute of limitations of four years, and the FAL has a statute of limitations of three years. 16 A statute of limitations 8

Cal Bus & Prof. Code § 17500 (LEXIS NEXUS 1941).; Cal Bus & Prof. Code § 17200 (LEXIS NEXUS 1941).

9 Id. 10 Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002).

11 Id. 12 Colgan, 135 Cal. at 701.; Overstock.com., 12 Cal. App. 5th at 1088.

13 Injunctive relief, WEX, https://www.law.cornell.edu/wex/injunctive_relief(last

visited Feb. 8, 2022).

14 Restitution, WEX, https://www.law.cornell.edu/wex/restitution (last visited Feb. 8, 2022).

Legal Information Inst., Personal Information, Wex Legal Dictionary (last accessed March 11, 2022), https://www.law.cornell.edu/wex/personal_Information.

15 Gabelli v. SEC, 568 U.S. 442, 443 (2013).

16 Cal Bus. & Prof. Code § 17208 (LEXIS NEXUS 1941); CA CIV PRO § 338.

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WHEN COURT-MADE RULES FAIL: LEVERAGING THE PRIVATE MARKET TO STOP MISINFORMATION IN ADVERTISING serves several purposes. First, such a provision protects defendants from claims surrounding issues that occurred a long time ago. 17 By requiring plaintiffs to file suits within a certain time frame, the courts provide defendants a chance to build their defense by gathering evidence and witnesses while they are still readily available. 18 Second, courts prefer to use their limited resources on recent issues that likely have greater social relevance than past matters. 19 Additionally, cases from further in the past generally cost more money, involve a more complex, dated set of facts, are more time-consuming, and run a greater risk of judicial error. 20 Finally, a statute of limitations gives defendants, and the individuals who interact with those defendants, peace over acts made a long time ago. 21 Individuals and companies can make business and employment decisions without the worry that a decades-old lawsuit will emerge. 22 In most cases, a statute of limitations starts to run the moment an act occurs whether the plaintiff knows about it or not. 23 However, a problem arises in fraud cases: the more sophisticated a fraud, the longer it takes for the plaintiff to realize and start legal proceedings. Therefore, a lawsuit against more effectively made misrepresentations is more likely to be blocked by the statute of limitations, essentially encouraging successful fraud. Courts have long recognized that the statute of limitations can raise equitable concerns in situations such as these. Sometimes a violation can be part of one long scheme that only becomes clear to the plaintiff after the statute of limitations has expired. 24 In other circumstances, defendants actively hide their wrongdoing from potential plaintiffs. 25 For these situations, courts have developed four

17 Order of R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 18 Id. 19 Id. 20 James R. MacAyeal, The Discovery Rule and the Continuing Violation

342 (1943).

Doctrine as Exceptions to the Statute of Limitations for Civil Environmental Penalty Claims, 15 VA. ENVTL. L.J. 589, 591 (1996).

21 Wilson v. Garcia, 471 U.S. 261, 271 (1985); Tulsa Professional Collection Services., Inc., v.

Pope, 485 U.S. 478, 486 (1988).

22 Id. 23 Pooshs v. Philip Morris USA, Inc., 250 P.3d 181 (Cal. 2011).

24 Kyle Graham, The Continuing Violations Doctrine, 43 GONZ. L. REV. 271, 288 (2008).

25 Id.

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UCLA UNDERGRADUATE LAW JOURNAL equitable exceptions to the usual rules “to align the actual application of the limitations defense more closely with the policy goals animating it.” 26 II. The Four Equitable Exceptions to the Statute of Limitations The four equitable exceptions recognized by the California Supreme Court are the theory of continuous accrual, the continuing violations doctrine, the discovery rule, and the theory of fraudulent concealment. 27 Courts have developed tests and rules for these exceptions to determine when they may be used in particular cases. 28 None of the exceptions allow the CA DOJ to effectively discourage or prevent fraud in UCL and FAL cases.

A. The Theory of Continuous Accrual and the Continuing Violations Doctrine The parallels between the theory of continuous accrual and the continuing violations doctrine make them easiest to understand in relation to each other.

The California Supreme Court distinguished them in Aryeh vs. Canon Business Solutions, Inc. In Aryeh, the plaintiff paid a monthly lease to a company to use a copier. However, due to the company’s negligence, the copier miscounted the number of pages printed, and the plaintiff paid too much over the span of many months. When the plaintiff found out, he sued the company under the UCL. 29 The defendant raised the statute of limitations defense, saying that because the miscounting had started over four years ago, which is the statute of limitations for the UCL, the lawsuit was time-barred.

The California Supreme Court disagreed with the defendant, deciding that the lawsuit was protected by the theory of continuous accrual but not by the continuing violations doctrine. Under the theory of continuous accrual, if a party has broken the law for a long time, it may be sued for more recent violations

26 Aryeh, 292 P.3d at 871.

27 Id. 28 Id. 29 Although this case was

only about the UCL, it likely serves as precedent for the FAL too, since the two are so closely linked, and FAL cases are almost always brought with the UCL attached.

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WHEN COURT-MADE RULES FAIL: LEVERAGING THE PRIVATE MARKET TO STOP MISINFORMATION IN ADVERTISING made within the statute of limitations. 30 However, all the defendant’s older violations must be let go. On the other hand, the continuing violations doctrine strings every violation together into one long scheme. 31 As long as the last violation occurred within the statute of limitations, every previous violation may be pursued. The continuing violations doctrine is commonly used in nuisance or harassment cases, in which the conduct is ongoing and individual acts are clumped together for the purposes of the statute of limitations. 32 Following the ruling in Aryeh, it appears that UCL lawsuits may use the theory of continuous accrual but not the continuing violations doctrine. This decision leads to odd results in government-led fraud cases that use the UCL. When using the theory of continuous accrual, the CA DOJ may sue violations made less than four years before the complaint date, which is within the UCL’s statute of limitations. Every day, old violations are barred, and new violations replace them. The longer the party successfully defrauds the public, the more violations are protected by the statute of limitations. Under this scheme, the penalties defendants must pay under the UCL and FAL become predictable costs that can be factored in year to year, weakening the penalties’ ability to discourage fraud. It is unlikely that this outcome was the intent of the statute of limitations. The Aryeh court stated that equitable exceptions such as the theory of continuous accrual were designed “to align the actual application of the limitations defense more closely with the policy goals animating it.” 33 Therefore, the theory of continuous accrual, as defined by that same Aryeh court, does not function well in government-led consumer fraud cases.

Moreover, the Aryeh court’s reasoning in refusing to apply the continuing violations doctrine to the UCL case is not persuasive. Implicitly, the court uses a two-part test that potentially contradicts the intent of the continuing violations doctrine and does not account for the variety of ways that the UCL may be used to pursue a lawsuit. The two-part test seems to be: (1) there is not a series of 30 Aryeh, 292 P.3d at 875.

31 Id. at 880.

32 Town of Troy v. Cheshire

881-82 (9th Cir. 1991).

33 Aryeh, 292 P.3d at 871.

R.R. Co., 23 N.H. 83 (N.H. 1851); Ellison v. Brady, 924 F.2d 872,

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UCLA UNDERGRADUATE LAW JOURNAL discrete, independently actionable wrongs and (2) the wrongful conduct was only clear after the accumulation of a series of harms. 34 The court did not state whether a plaintiff must pass both parts or just one part of the test to use the continuing violations doctrine. In Aryeh, the plaintiff did not pass either part, so the court denied the use of the doctrine.

Here lies the contradiction in the court’s reasoning. According to the Aryeh court, the continuing violations doctrine was created by judges to achieve certain goals. One of those goals is court efficiency. 35 The continuing violations doctrine allows parties to avoid going to court in response to every slight out of fear that, if they delay, they will be time-barred by the statute of limitations. On account of the doctrine, potential plaintiffs can feel more secure attempting to resolve the issue outside of court first or waiting to see if the issue resolves on its own. They know the doctrine will preserve their lawsuit should they ever choose to go back to it. The Aryeh court’s two-part test contradicts this goal by barring lawsuits that contain independently actionable wrongs under the doctrine. Consequently, plaintiffs cannot risk delaying their lawsuit by trying to resolve the issue outside of court. They must attempt to sue in response to every slight, hurting the goal of court efficiency.

The other potential problem is the narrowness of the reasoning as the court says nothing about the issue of omissions. If a party makes a misrepresentation, it is not clear whether the party has a continuing duty to remove or correct the misrepresentation. If there was no continuing duty, after a misleading advertisement has been published for four years, neither the UCL nor the FAL could resolve it in any way.

A Seventh Circuit U.S. Court of Appeals case suggests it is possible that a continuing duty does exist. In United States v. Spectrum Brands, Inc., the Seventh Circuit permitted the federal government to use the continuing violation doctrine to seek civil penalties using a federal consumer protection law. In Spectrum, the defendant failed to immediately notify the government that it was receiving complaints of a defective coffee maker that caused consumers to spill

34 Id. at 880.

35 Id. at 879.

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WHEN COURT-MADE RULES FAIL: LEVERAGING THE PRIVATE MARKET TO STOP MISINFORMATION IN ADVERTISING hot coffee on themselves.36 Six years later, when the company finally did report the complaints, the government sued them for disclosing so late. In permitting use of the continuing violation doctrine, the Seventh Circuit said the limitations period started running when the company finally notified the government. The previous failure to inform had paused the limitations period. 37 The Spectrum court applied the continuing violations doctrine because the company had a continuing obligation to inform the government of the defective product complaints. However, the Spectrum case is different from the Aryeh decision in one important way: the start of the statute of limitations was marked when the defendant disclosed the complaints to the government. 38 It was important to the court that there be this ending point; otherwise, the statute of limitations would have effectively been eliminated, something the court wished to avoid. If that were the case, plaintiffs could theoretically wait decades for violations to build before filing a lawsuit. Such an act would strip defendants of their peace over acts made long ago, force courts to preside over old cases, and result in other concerns that a statute of limitations is intended to address. The Spectrum court’s decision reveals that the Aryeh court’s two-part test ignores situations relating to omissions. Therefore, because the test used by the Aryeh court is incomplete, lower courts should be wary of relying on it to determine the applicability of the continuing violations doctrine to UCL cases.

Consequently, neither the theory of continuous accrual nor the continuing violation doctrine applies well to government-led UCL and FAL cases. The theory likely violates the intent of the statute of limitations, and the doctrine rests on an underinclusive, contradictory two-part test.

A. The Doctrine of Fraudulent Concealment The doctrine of fraudulent concealment pauses the statute of limitations whenever a defendant causes a potential lawsuit to expire through deceptive

36 United States 37 Id. 38 Id. at 350.

v. Spectrum Brands, Inc., 924 F.3d 337 (7th Cir. 2018).

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UCLA UNDERGRADUATE LAW JOURNAL conduct. 39 A famous example of this kind of deceptive conduct is a 1962 case in which the conspirators hid their antitrust scheme from potential plaintiffs by holding secret meetings, using public pay telephones, and destroying records relating to the conspiracies. 40 In Community Cause v. Boatwright, the California Court of Appeals asserted that the goal of the doctrine is to stop defendants from “taking advantage of [their] own wrong by asserting the statute of limitations.” 41 In the case, the plaintiff sued a politician under the Political Reform Act for hiding financial interest in a property. 42 Although the statute of limitations had passed, the court agreed that the doctrine of fraudulent concealment preserved the plaintiff’s suit. The court concluded that the plaintiff had sued late only because the politician had deceptively hidden his interest in the property. 43 In determining the applicability of the doctrine, the Boatwright court used its own two-part test that is widely accepted by other California courts and follows guidelines supported by legal scholars. 44 Their two-part test requires that plaintiffs (1) show the substantive elements of fraud and (2) provide a good reason for discovering the facts so late.

It would be difficult for a government agency like the CA DOJ to pass either part of this test. The court did not set a hard rule for how to meet the first part, but its decision did appear to rest on the fact that the defendant had intentionally failed to disclose his financial interest in a property. 45 Showing that the defendant hid information intentionally is a high standard of proof for a plaintiff to meet, much higher than the usual standard for a UCL and FAL case which only requires proof that the defendant acted negligently. 46 Even though it is possible to meet the first part of the Boatwright test by showing intention rather 39 Aryeh, 292 P.3d at 875.

40 Kansas City v. Federal Pacific Electric Co., 310 F.2d 271, 272 (8th Cir. 1962).

41 Community Cause v. Boatwright, 124 Cal. App. 3d 888, 899 (1981).

42 Id. at 995.

43 Id. at 897.

44 Baker v. Beech Aircraft Corp., 39 Cal. App. 3d 315 (Ct. App. 1974); Pashley v.

Pacific Elec.

Ry. Co., 25 Cal. 2d 226 (Cal, 1944); Richard L. Marcus, Fraudulent Concealment in Federal Court: Toward a More Disparate Standard?, 71 GEO. L.J. 829, 880 (1983).

45 Id. at 901.

46 People v. Superior Court (Olson), 96 Cal. App. 3d 181, 195 (1979).; (The court allowed the use of the doctrine of fraudulent concealment only because “[the defendant] concealed…information… to induce plaintiffs to enter into [a] loan”).

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WHEN COURT-MADE RULES FAIL: LEVERAGING THE PRIVATE MARKET TO STOP MISINFORMATION IN ADVERTISING than only negligence, it would be very difficult to do so. Plaintiffs like the CA DOJ would likely not consider this course of action as it would greatly limit the number of lawsuits that may be pursued.

Even if the CA DOJ could pass the first part of the test, it is unlikely that it could also pass the second part. The Boatwright court emphasized that the reason for late discovery of facts must include (1) when the fraud was discovered; (2) the circumstances under which it was discovered; and (3) that the plaintiff was not at fault for failing to discover it or had no actual or presumptive knowledge of facts sufficient to put him on inquiry. 47 In Boatwright, the plaintiff presented an adequate reason by showing that the type of interest the defendant hid was only known to the defendant and a few of his partners.

The plaintiff only discovered the interest once it became public through documents filed in another lawsuit. 48 Government plaintiffs struggle to meet the second part of the test. Agencies like the CA DOJ have a specific prerogative to seek out wrongdoing and have a unique ability to investigate claims. Moreover, courts have said that it would be difficult to ascertain when an agency, sometimes composed of different departments and hundreds of people, discovered the fraud.49 At least for the purposes of collecting penalties, government agencies seem to never have a justification for late discovery. 50 B. The Discovery Rule According to the California Supreme Court, the discovery rule pauses the statute of limitations until the plaintiff discovers, or has reason to discover, a basis to file a lawsuit. 51 While the discovery rule may apply to private plaintiffs, the U.S. Supreme Court has barred at least one government agency from using it. In Gabelli vs. SEC, the U.S. Securities and Exchange Commission (SEC) 47 Boatwright, 124 Cal. App. 3d at 900.

48 Id. at 901.

49 Gabelli, 568 U.S. at 451.

50 Id. 51 Norgart v. Upjohn Co., 21 Cal. 4th 383

(Cal., 1999).

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UCLA UNDERGRADUATE LAW JOURNAL pursued a civil enforcement action that sought monetary penalties from the defendant for defrauding investors. 52 In a unanimous decision, the Court ruled that the SEC could not use the discovery rule to preserve its lawsuit from being time-barred. 53 The Court gave several reasons why government agencies may not use the discovery rule in instances where a private plaintiff might be able to. Unlike private plaintiffs, government agencies do not rely on apparent injury to learn that they have been wronged. In fact, their very purpose is to root out wrongdoing, and they have many legal tools to do so that are unavailable to private plaintiffs. 54 Therefore, the Court reasoned that government agencies should not benefit from the same discovery rule protections given to private plaintiffs. There are also practical concerns with allowing the government to use the discovery rule. It is difficult to know when government agencies should have known of a fraud because of the widespread bureaucracy of such agencies. For now, no test exists to determine when a government agency may use the discovery rule. The Supreme Court refused to make one in Gabelli, and no other government agency has attempted to use the rule. While the Supreme Court is not a binding authority in California, it is a strong persuasive power. Thus, it is unlikely that the CA DOJ can use the discovery rule to pursue civil penalties.

None of the current equitable exceptions allow government agencies to successfully discourage misrepresentations without dismantling the statute of limitations defense. Therefore, there needs to be an alternative way to solve the difficulties presented by the statutes of limitations in consumer fraud cases.

III.

A Possible Path Forward Beyond the Equitable Exceptions

In light of the statute of limitations defense, the CA DOJ struggles to effectively and equitably discourage fraud using any one of the four exceptions.

The problem with the theory of continuous accrual is that it systematically discards old violations. This leads to a problematic situation where, over time,

52 Gabelli, 568 53 Id. 54 Id at 451.

U.S. at 446.

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WHEN COURT-MADE RULES FAIL: LEVERAGING THE PRIVATE MARKET TO STOP MISINFORMATION IN ADVERTISING the statute of limitations starts protecting older violations and motivates companies to make false or misleading statements as best as they. Nonetheless, the other three equitable exceptions also have their liabilities. The doctrine of fraudulent concealment likely requires a demonstration of intentional fraud, a standard that government plaintiffs struggle to meet. Additionally, the continuing violations doctrine and the discovery rule risk capturing every violation ever made and eliminating the time limit on penalty actions. The U.S. Supreme Court has warned that this elimination would be “utterly repugnant to the genius of our laws.” 55 Having exhausted the four equitable exceptions as options, this article turns to an alternative solution, one that would permit the CA DOJ to discourage fraud without impeding the UCL and FAL’s statute of limitations. If partially time-barred by the statute of limitations, the CA DOJ should not attempt to recover all the losses from a company’s wrongdoing alone. Rather, the department should focus its broad investigative powers on rooting out bad acts and then stopping them through injunctive relief, allowing consumers the opportunity to seek their own remedies in personal injury or class action markets. While plaintiffs in these markets need more protections against unscrupulous private attorneys, the market allows individuals to pursue claims long after the wrongdoing occurred. Companies will be discouraged from making misrepresentations because they know that, even if their fraud is successful for a long time, they will always be susceptible to individual lawsuits.

A. The CA DOJ’s Use of Injunctive Relief An injunction is a court order requiring a defendant to do or stop doing something and its potential uses are broad. 56 It can be an order for a defendant to cease activities, to modify a policy, to take safeguards against something, or to remove something from circulation. Courts use them when a defendant must

55 56

Adams v. Woods, 6 U.S. 336 (1805).

Injunction, WEX, https://www.law.cornell.edu/wex/injunction (last visited Feb. 8, 2022).

Wex (2020) (see 13, 14).

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UCLA UNDERGRADUATE LAW JOURNAL stop its action to prevent injustice or harm to the plaintiff. However, since injunctions direct future action, they risk potentially limiting lawful as well as unlawful behaviors. 57 For example, a court may order a company to take down misleading advertisements, but the order must be made precisely to avoid requiring the company to take down perfectly honest advertisements, too.

Injunctive relief is considered one of the principal remedies in UCL and FAL cases. 58 It has been used by courts to require that defendants take down misrepresentations and make affirmative statements correcting those misrepresentations. 59 Relative to lawsuits seeking penalties, federal courts have been receptive to governmental use of injunctions. In SEC v. Graham, the Eleventh Circuit Court of Appeals allowed the SEC, the same government agency barred from using the discovery rule in Gabelli, to seek injunctions even though the statute of limitations had passed. 60 For the Graham court, civil penalties were barred but injunctions were not. In general, federal courts have used injunctive relief when the misconduct is likely to continue and require repetitive lawsuits. 61 This broad legal precedent suggests the CA DOJ has strong authority to seek injunctions in its UCL and FAL cases, even after the statute of limitations has expired. The CA DOJ can uncover the fraud, seek a limited number of penalties using the theory of continuous accrual, and stop the fraud from continuing using injunctive relief. Once the misrepresentations are exposed, consumers may pursue private lawsuits. Ultimately, a joint effort between government agencies and private plaintiffs will discourage companies from committing fraud.

B. Consumers As Private Plaintiffs

57

Sheppard Mullin Richter & Hampton LLP., Trade Secret Litigants Take Note: California District Court Provides Guidance on Obtaining a Preliminary Injunction and Expedited Discovery, XI, NAT. L.R. (2021).

58 Colgan, 135 Cal. App .4th at 701.

59 Consumers Union of U.S., Inc. v. Alta-Dena Certified Dairy, 4 Cal. App. 4th 963, 972 (1992).

60 SEC v. Graham, 823 F.3d 1357, 6 (11th Cir. 2016).

61 Elad Peled, ARTICLE: Rethinking the Continuing Violation Doctrine: The Application of Statutes of Limitations to Continuing Tort Claims, 41 OHIO N.U.L. REV. 343, 384 (2015).

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WHEN COURT-MADE RULES FAIL: LEVERAGING THE PRIVATE MARKET TO STOP MISINFORMATION IN ADVERTISING Once consumers learn they have been defrauded, they can pursue lawsuits individually. When seeking civil penalties, private lawsuits do not face the same statute of limitations rules as the CA DOJ. This constant threat of a lawsuit will dissuade companies from committing fraud as they know that the statute of limitations will not protect them from private plaintiffs. The discovery rule, so ineffective in the hands of a government plaintiff, is devastatingly powerful for private plaintiffs. The rule keeps the statute of limitations from starting until the plaintiff discovers, or has a reason to discover, a basis to file a lawsuit. 62 Even if private plaintiffs had been defrauded long before, their lawsuits will likely be preserved considering the California Court of Appeals’ decision in Nelson v.

Indevus Pharmaceuticals, Inc. 63 According to the Nelson court, the statute of limitations does not necessarily start when the wrongdoing itself is generally publicized. It only begins to run after the plaintiff has a reason to investigate, such as when they become aware of a personal injury.64 In Nelson, newspapers and research studies widely publicized a drug as having major side effects.65 Years later, the plaintiff, who had taken the drug many years prior, started experiencing the side effects, got tested, and found out her symptoms were because of the drug. She then sued the drug maker for personal injury. 66 The Nelson court said that, under the discovery rule, the statute of limitations only started to run when the plaintiff got tested, as she had no reason to suspect personal harm before. 67 It did not matter that she had missed the generally published news reports about the dangers of the drug because she had no obligation to be aware of them when still unaware of her own injury. 68 As many potential plaintiffs in fraud cases are unaware of their own injuries, the discovery rule likely protects their lawsuits from the statute of limitations defense even if they discover wrongdoing much later. Patients do not know the 62 Aryeh, 292 P.3d at 63 Nelson v. Indevus 64 Id. 65 Id. 66 Id. 67 Id. 68 Id.

875.

Pharmaceuticals, Inc., 142 Cal. App. 4th 1203, 1204 (Cal. Ct. App., 2006).

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UCLA UNDERGRADUATE LAW JOURNAL opioids they are taking are dangerously addictive. Students do not know their for-profit school offers meaningless degrees. Loaners do not realize their banks are providing them with fraudulent loans. Companies wary of these lawsuits, which may take place long after the misrepresentations themselves are made, will be discouraged from committing fraud in the first place. However, relying on the personal injury or class action market to restrain companies has its flaws, as plaintiffs lack protections from potentially unscrupulous private lawyers.

C. The Personal Injury and Class Action Market To sue, plaintiffs need personal injury or class action lawyers, who are sometimes called “ambulance chaser[s]” because of their eagerness to “prey on misfortunes.” 69 Currently, some attorneys set up retainer agreements that allow them to take up to 45 percent of the compensation awarded. Other attorneys add expense provisions that pay for the attorneys’ meals, hotel stays, and travel by private plane.70 Plaintiffs are often left with much less money than they had anticipated. If the CA DOJ is going to rely on the personal injury or class action market to discourage corporate fraud, the industry likely needs more oversight than it has now. Nevertheless, the market has become a potent tool for the consumer rights movement. While the personal injury market has its flaws, it remains a powerful resource for consumers that have been harmed by businesses and other entities. 71 Conclusion The progression of technology will continue to make it easier for companies to spread false and misleading statements. As a consequence of the statute of limitations defense, government agencies like the CA DOJ, when operating alone, are unable to effectively and equitably discourage those corporations from 69

Margot Slade, THE LAW; Personal Injury Lawyer: New Era, New Image, N.Y. TIMES (Sept. 9, 1988), https://www.nytimes.com/1988/09/09/us/the-law-personal-injury-lawyer-new-eranew-image.html.

70 Matthew Goldstein, As Pelvic Mesh Settlements Near $8 Billion, Women Question Lawyers’ Fees, N.Y. TIMES (Feb. 1, 2019), https://www.nytimes.com/2019/02/01/business/pelvic-meshsettlements-lawyers.html.

71 Slade, supra note 69.

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WHEN COURT-MADE RULES FAIL: LEVERAGING THE PRIVATE MARKET TO STOP MISINFORMATION IN ADVERTISING spreading misinformation about their products and services. The existing equitable exceptions to the statute of limitations were designed to prevent the limitations defense from producing undesirable outcomes. However, they are unable to produce equitable results when it comes to government-led consumer fraud cases. Since equitable exceptions do not fulfill their intended purpose, government agencies like the CA DOJ should focus on stopping the fraud through injunctive relief, recover civil penalties using the theory of continuous accrual, and rely on private plaintiffs to sue companies for fraud. With this combination, corporate fraud can be discouraged without severely hampering the statute of limitations defense.

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UCLA UNDERGRADUATE LAW JOURNAL Japji Singh*

A Judicial Divide and an Absent Supreme Court: The Need for a New Standard in Evaluating Social Media Speech within the School Environment ABSTRACT. The nature of the school environment as a nursery of democracy is such that judiciary bodies must balance the competing interests of civil discourse with the motivation of the school to create an undisrupted learning environment. Tinker v. Des Moines first introduced a balancing test many decades ago and later Courts developed it further within First Amendment doctrine. In its first opportunity to rule on social media student speech in Mahanoy Area School District v. B.L., the Supreme Court presented a vague rationale that sidestepped the issue of social media entirely. This absence of a prevailing standard has become increasingly salient as the rise of online communications engenders its outsized role in the daily lives of students. The lack of guidance, coupled with disagreement among the lower courts, creates the need for a new, extendable standard. To fulfill this need, this article develops a multi-tiered methodology that considers the content of the speech, the nature of the speech’s medium, and the intent of the student speaker to inform the proscribability of such speech and resolve a pressing issue that concerns students nationwide. *Japji Singh is a first-year student at UCLA studying Mathematics-Economics. Outside of writing for the Undergraduate Law Journal, she is a contributor for the Daily Bruin and a dancer in Bruin Bhangra. Japji hopes to attend law school in the future and is particularly interested in human rights and First Amendment law.

Editor: Gali Hoffman is a third year Political Science student at UCLA. She plans to attend law school and is primarily interested in immigration law, human rights, and civil liberties. Her additional involvement at UCLA includes Peaks and Professors, the Latin American Student Organization, and the Transfer Student Representative Office.

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT Introduction “Fuck school fuck softball fuck cheer fuck everything:” a sentiment that may seem innocuous and commonplace from an adolescent perspective stands in the center of a legal battle that involves the Supreme Court, social media, and the free speech rights of students across the nation. This legal battle is a result of First Amendment doctrine applied to the school environment, which requires significant adjudication and line-drawing due to the competing nature of public schools’ main goals. The place where American students are educated to become future civically engaged members of society is the very place where there must be robust speech in order for students to shape their beliefs and affirm their individual identities. Moreover, the responsibility of schools to nurture a marketplace of ideas is essential to their ability to facilitate learning and modes of self-expression. Paradoxically, in order to achieve that, schools must cultivate a protective and safe environment for their students. Thus, for the matter of student speech, a multi-factor standard must be created to resolve these two competing interests.

First Amendment jurisprudence involves demarcating the point at which student speech obstructs the school’s ability to protect its students. The Supreme Court has recognized that the judgment of school officials in cases of student speech must be implemented in a manner that “comports with the transcendent imperatives of the First Amendment.” 1 In West Virginia Board of Education v. Barnette, the Court concluded that the important and delicate discretionary functions of boards of education may not operate outside the limits and constraints of the First Amendment’s Free Speech Clause. 2 The fact that schools educate young students “is reason for scrupulous protection of Constitutional freedoms” in order to not “strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” 3 However, these freedoms under the First Amendment must be 1 Board of Education v. Pico ex rel. Pico, 457 U.S. 853, 864–65 (1982).

2 West Virginia Board of Education v. Barnette, 219 U.S. 624 (1943).

3 Id. at 637.

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UCLA UNDERGRADUATE LAW JOURNAL balanced “against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.” 4 Student speech that “is wholly inconsistent with the fundamental values of public school education” or “would undermine the school’s basic educational mission” is, according to the Court, a legitimate concern that could justify the curtailment of the students’ free speech. 5 Emerging technological developments in social media sectors have confused, if not entirely upended, existing student free speech doctrine. Student speech is now more likely to originate beyond the schoolhouse gates yet still affect the on-campus environment due to the increased accessibility and associated lack of privacy afforded by the Internet. This new pervasive nature of student speech allows for the development of a greater marketplace of ideas, but it is entirely different from previous student speech both in its classification and effects. This obfuscation of school regulation of student speech leads to the need for a remodeled balancing test to weigh the protection of students’ free speech rights with the compelling interest of the schools to safeguard their students’ ability to learn.

With existing jurisprudence becoming muddled due to the conflicting evolution of the legacy of the landmark student speech case Tinker v. Des Moines, there is the timely opportunity to clarify whether this precedent fails to uphold constitutional principles when applying the law to social media speech. Such clarification is entirely necessary considering the fact that the Court has not created a widely applicable standard in a social media student speech case, despite previous judicial decisions and other emerging social and digital media law. Moreover, left to their own devices, the federal courts have splintered Tinker’s clear guidance, leaving school officials without a standard to make decisions that impact the speech rights of all students.

This article proposes a new standard for social media student speech doctrine. Part I will analyze the history of Supreme Court student speech jurisprudence, beginning with the controlling precedent set in Tinker and

4 Bethel School 5 Id. at 685.

District No. 403 v. Fraser, 478 U.S. 675, 681 (1986).

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT continuing to the evolution of the Court’s adjudication of student speech as increasingly restrictive. Part II will address persuasive authority on the matter of student free speech in the form of the different methodologies of the lower courts (such as the District and Circuit Courts of Appeals), emphasizing the need for a clear standard to clarify the confusion. Part III will examine the Supreme Court’s rationale in its only social media student speech case, Mahanoy Area School District v. B.L., and argue that the Court’s rationale is incomplete by missing the prime opportunity to clarify the regulatability of student social media speech. Part IV will present a new standard for evaluating cases like Mahanoy. The standard set forth in this article will create a new method of judicial analysis that is not only extendable to future social media student speech cases but also has the prescriptive power to aid judicial decisionmaking as social media takes a more prominent role in education and beyond.

I. The Development of Supreme Court School Speech Doctrine The guiding principle of U.S. free speech law is that speech, which is inherently valuable to the complexion of American society, must be protected and encouraged at every level. First Amendment freedoms must be guarded from extreme government regulations because “speech is the beginning of thought.” 6 Broad protections for speech do not deny that it has the potential to be controversial or provocative, but the Court notes that because of America’s rich free-speech environment, the “remedy to be applied [to controversial speech] is more speech, not enforced silence.” 7 First Amendment jurisprudence therefore cultivates a public marketplace of ideas in which the truth will prevail. However uncomfortable and pernicious an opinion may seem, the correction of these ideas depends not on the arbitration of judges and juries, but on society, which “has the right and civic duty to engage in open, dynamic,

6 7

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253 (2002).

Central Hudson Gas Electric v. Public Service Commission, 447 U.S. 557, 582 (1980).

See Whitney v. California, 274 U.S. 357, 377 (1927).

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UCLA UNDERGRADUATE LAW JOURNAL rational discourse.” 8 The responsibility to preserve a marketplace of ideas becomes even more important with regards to the school environment because the marketplace is essential to the schools' ability to facilitate learning and modes of self-expression.

A. The Protective Standard of Students’ First Amendment Rights Tinker v. Des Moines Independent Community School District formulated the controlling precedent for U.S. student speech doctrine. This case defended the rights of the students to protest the Vietnam War by wearing black armbands.

The Supreme Court decided that the school official’s decision to suspend those students was unconstitutional, holding that a mode of speech would have to cause something more than “discomfort and unpleasantness” 9 to constitutionally justify proscription. As a result of the schoolhouse being an environment where students develop as future civically engaged citizens, “students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.” 10 The precedent set in Tinker was that unless school officials could prove that student speech caused a material interference or a substantial disruption to the school and learning environment, viewpoint discrimination (discrimination on the basis of the content being expressed) was constitutionally impermissible, and the rights of the students were protected. When the Court attempted to balance the competing interests of the school environment in Tinker, it erred on the side of free speech doctrine at large, emphasizing the need for breathing space under the First Amendment.

B. The Deferential Standard and a Departure from Tinker In the Court’s conception of students’ rights in Tinker, students both in and out of school possessed the same fundamental rights as adults under the Constitution because “students do not shed their constitutional rights at the 8

Gertz v. Robert Welch, Inc., 418 U.S. 323, 339–40 (1974) (overruled in other part); See also Dennis v. United States, 341 U.S. 494, 503 (1951). See also United States v. Alvarez, 567 U.S. 709 (2005).

9 Tinker v. Des Moines Independent Community School District., 393 U.S. 503, 512 (1969).

10 Id. at 503, 511.

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT schoolhouse gate.” 11 However, the Court’s decisions in subsequent student speech cases marked a departure from this protective doctrine of Tinker and moved towards a more permissive approach to school authorities in matters of regulation. i.

Bethel School District v. Fraser

In Bethel School District v. Fraser, the Court upheld the school’s suspension of a student due to an assembly speech that was sexually graphic and profane in nature. The school’s interest in maintaining boundaries of socially appropriate behavior outweighed the student’s freedom to express controversial speech. 12 The Court distinguished the political expression of Tinker’s armband with the lewd and obscene speech in Bethel because the speech in the latter case harmed the “sensibilities of other students” due to its plain offensiveness. 13 The Bethel Court argued that the wide freedom guaranteed by the First Amendment for adult public discourse did not necessarily imply that children in a public school deserved the same protections.14 Bethel’s rationale, based on this notion, established the idea that the precedent set in Tinker was not absolute. By tipping the scales of the competing interests in the direction of the school’s concern for substantial disruption, the Court’s implicit assertion was that this bright line could always be redrawn and renegotiated. This decision afforded more power to school authorities to draw the line between the school’s pedagogical interests and the students’ free speech rights as they saw fit. The Court’s incongruent analyses of these two kinds of speech, one profane and the other political, represented a shift in Supreme Court doctrine that was more deferential to school authority and regulation. 15

11

Id.

12 Bethel, 478 U.S. at 685–86.

13 Id. 14 Id. at 675, 676.

15 Alison Hofheimer, Saved by

the Bell? Is Online, Off-Campus Student Speech Protected by the First Amendment?, 40 Fla. St. U. L. Rev. 971, 972 (2013) (evolution of Supreme Court doctrine).

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UCLA UNDERGRADUATE LAW JOURNAL ii. Hazelwood School District v. Kuhlmeier This evolution continued in Hazelwood School District v. Kuhlmeier, in which the Court once again upheld school regulations, this time in the case of editorial control of a school newspaper. The Court agreed with the refusal to publish newspaper content related to pregnancy and divorce, holding that the school need not “tolerate student speech that is inconsistent with its basic educational mission” related to “legitimate pedagogical concerns.” 16 The Court again endorsed a doctrine that expanded the scope of public school authority over student expression that could reasonably be connected to school activities or school-sponsored content. An alarming effect of the expansion of the power of public school authorities was the broad latitude afforded to school officials in interpreting student speech. Speech that portrayed a specific viewpoint could be regulated by the school if it bore the school's imprimatur (essentially school-sponsored) and was interpreted to be distasteful or antithetical to the school’s educational purpose. As a result, school officials could impose their own opinions onto the meaning of student speech, interpreting it as they see fit in order to impose restrictions. This was in direct contrast to Tinker, wherein school officials could not interpret the students’ speech against the Vietnam War to be anything more than an expression of their viewpoint without violating their First Amendment rights. This increasingly deferential trend to the judgment of school authorities in matters of student speech allowed schools to regulate speech if it (1) caused a substantial disruption (per Tinker), (2) infringed on the rights of other students (per Bethel), or (3) obstructed the school’s legitimate pedagogical concerns (per Hazelwood). iii. Morse v. Frederick In Morse v. Frederick, Principal Morse confiscated a banner with the phrase “Bong Hits for Jesus” and suspended the student, Frederick, who held it while watching the Olympic Torch Relay with his class during school hours. The Court maintained that the banner could be “reasonably viewed as promoting 16

Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 260–61 (1988).

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT illegal drug use,” and thus Morse was well within her rights to enforce disciplinary action according to school and district policy that prohibited messages promoting illegal drug usage. 17 The Court in Morse v. Frederick could have further solidified the extent of the Tinker precedent in a revised framework that considered whether Tinker applied to off-campus speech. However, the Court interpreted this event to be “on-campus” because it was a school-sponsored activity during school hours, even though it was not necessarily school-related nor on school property. This acquiescent attitude towards school authority in school speech cases by the Court can be viewed as a slippery slope toward a widened scope of school authority, even in the off-campus, online speech context. 18 In making this special distinction, the Morse Court protected against this, perhaps inadvertently, by sidestepping the question of the proscribablity of off-campus speech by school authorities; defining the speech in Morse to be on-campus maintained the oncampus geographical requirement of Tinker that allowed school regulation in the cases of loco parentis, 19 or in place of the parent. 20 This lack of clarification limited the extendibility of the Morse precedent and resulted in difficulty defining off-campus speech restrictions in future social media speech cases.

II. District and Circuit Courts Splintered The limited extendibility of the Morse doctrine to future cases and the lack of any clarification of online speech regulation splintered the lower federal courts. Due to this absence of guidance, multiple lower courts formulated different standards that hybridize the protective and deferential doctrines of the

17 Morse v. Frederick, 551 U.S. 393, 406 (2007).

18 Mary-Rose Papandrea, Student Speech Rights in

the Digital Age, 60 FLA. L. Rev. 1027, 1055 (2008).

A Latin term meaning “in place of the parent,” the in loco parentis doctrine refers to the legal responsibility of an organization or authority to function as a parent. In the context of school speech law, schools typically are understood to stand in loco parentis when students enter school, so this responsibility could then involve the regulation of student speech. However, in cases where off-campus speech is the subject matter, the ability of schools to act in loco parentis is less certain and more ambiguous when discussing the proscribability of student expression.

20 See Papandrea, supra note 18, at 1054–55.

19

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UCLA UNDERGRADUATE LAW JOURNAL Supreme Court in order to apply them to cases of online student speech where the geographical nexus is indeterminate.

A. The Second Circuit “Snitch” Test The “Snitch” test, developed by the Second Circuit in Wisniewski v. Board of Education, extends the deferential trend that the Supreme Court established in Bethel, Hazelwood, and Morse by allowing schools even greater power to interpret student speech and predict its effects. The Second Circuit’s general rule is that public schools can regulate cyberspeech under Tinker if there is “a reasonably foreseeable risk that [it] would come to the attention of school authorities and that it would ‘materially and substantially disrupt the work and discipline of the school.’” 21 Essentially, if the speech could come to the attention of the school by the speaker or from outside sources – other students, for example, hence the term “snitch,” – the school has a legitimate interest in proscription.

For example, if a student posts an Instagram comment about their dislike for their teacher, this speech could reasonably be foreseen to come to the attention of the school. Applying the Snitch test, the Second Circuit would rule here that the student should have expected that their speech would reach the school either by word of mouth or the dissemination of screenshots of this comment. Because of this expectation, based on the precedent set in Doninger v. Niehoff, the Second Circuit would hold that the student’s First Amendment right to free speech “[is] not clearly established,” legitimizing the restriction of the speech.22 B. The Fourth Circuit Geographical Nexus Test The Fourth Circuit poses a similar rule to govern public schools’ ability to regulate cyberbullying in Kowalski v. Berkeley County Schools. The school suspended Kara Kowalski, a student who created a website called “Students 21

Wisniewski v. Board of Education, 494 F.3d 34, 38–39 (2d Cir. 2007) (quoting Morse, 551 U.S. at 403).

22 Doninger v. Niehoff, 642 F.3d 334, 346 (2d Cir. 2011).

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT Against Sluts Herpes” to ridicule a fellow student. The court concluded that Kowalski’s activity fell within “the high school’s legitimate interest,” thus enabling the regulation of her speech. 23 To further justify this regulation, the Fourth Circuit formulated a geographical nexus test; this test rules that the First Amendment does not bar public school discipline or regulation where the “nexus,” or connection, between the student’s speech and the “school’s pedagogical interests [is] sufficiently strong to justify the action taken by school officials.” 24 While the term “nexus” is left deliberately vague by the decision, the Fourth Circuit did make the clarification that a student's intent for their speech to reach the school community, “buttressed by his actions in bringing about that consequence, supports applying Tinker's school-speech standard to that speech.” 25 The example of the student’s Instagram comment against the teacher can be extended here: the intention of the student for the speech to reach the school environment is evident in the student’s public posting of the comment. This intention creates a nexus between the speech and the school that allows the application of Tinker and could ultimately inform the school’s interest in restricting the speech.

The similarities between the Second and Fourth Circuit tests are apparent: both rely on a nebulous connection between the school and the student speech where the speech reaches the school. This connection is what eventually justifies the school’s response to restrict student expression. Moreover, by being intentionally ambiguous, both tests continue the compliant trend of the Supreme Court by affording broad latitude to school officials in their interpretation and censoring of student speech.

23

Kowalski v. Berkeley County Schools, 652 F.3d 565, 573 (4th Cir. 2011), cert. denied, 565 U.S. 1173 (2012).

24 Id. 25 Bell v. Itawamba County School Board, 799 F.3d 379, 394–95 (5th Cir. 2015).

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UCLA UNDERGRADUATE LAW JOURNAL C. The Third Circuit Multi-Part Test This The Third Circuit developed a more general methodology that stays faithful to existing Supreme Court doctrine in J.S. ex rel. Snyder v. Blue Mountain School District. When middle schooler J.S. created a parody website that imitated her principal, the school initiated a ten-day suspension. The Third Circuit noted that J.S. “took specific steps to make the profile ‘private’” and that the principal’s investigation of the matter, not the web page itself, created disruption related to the incident. 26 This implied that J.S.’s intention was not to reach the school with her speech. Not only did the court find no substantial disruption due to the private nature of the profile, but the court also reasoned that the profile “though indisputably vulgar, was so juvenile and nonsensical that no reasonable person could take its content seriously, and the record clearly demonstrates that no one did.” 27 In ruling in favor of the student, the Third Circuit employed a multi-part test from student speech precedents that consists of the rules set in Bethel, Hazelwood, Morse, and Tinker. If the student speech is vulgar, lewd, or plainly offensive, the speech could be banned under Bethel. If the speech could reasonably be understood to be endorsed by the school, the speech could be banned under Hazelwood as a legitimate pedagogical concern. If the speech advocates illegal drug usage, the speech could be banned under Morse. Finally, if none of the above apply, Tinker controls the decision and students’ rights prevail, provided that there is no material interference or substantial disruption as a result of the speech.

Instead of taking a stance on the differing interpretations of the Supreme Court on student speech like the Second and Fourth Circuit do when they lean towards the acquiescent standard, the Third Circuit attempts to synthesize the multiple doctrines into a single checklist. While this multi-part test is attractive in its simplicity (as compared to the Snitch and Geographical Nexus tests), it still fails to consider online student speech. The Second and Fourth Circuits

26

J.S. ex rel. Snyder v. Blue Mountain School District, 650 F.3d 915, 925–27 (3d Cir. 2011), cert. denied, 565 U.S. 1156 (2012).

27 Snyder, 650 F.3d at 929.

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT address this issue and formulated a novel standard to respond to it, while the Third Circuit sides with Supreme Court guidance that is outdated and incomplete.

D. The District of Colorado Extension of the Tinker Precedent The District Court for the District of Colorado takes a firmer stance on the topic of social media speech in C1.G. ex rel. Son v. Siegfried. 28 After a student posted a Snapchat at a thrift store with the caption “Me and the boys bout to exterminate the Jews,” the District of Colorado reasoned that the content of the student’s post was more than merely an "unpopular viewpoint.” 29 While C.G. did not mean the message as a legitimate threat, and the school did not take it as such, the post was “not ‘so outrageous that no one could have taken it seriously.’” 30 This is why the Court foresaw this speech as creating a substantial disruption in the school environment, thus justifying its regulation.

The District of Colorado agrees with the Second and Fourth Circuit in that Tinker can be extended to off-campus speech, but its rationale for doing so is diametrically opposite. Colorado’s developed standard is that it must be expected that “most social media use will reach campus.” 31 Thus, in considering whether social-media-based speech will cause substantial disruption, “whether a student intentionally directed that speech towards campus is a less useful analytical tool today.” 32 This is in direct contradiction to the Fourth Circuit Geographical Nexus test that uses the existence of intention to inform whether Tinker could be applied to the off-campus speech. While the Supreme Court has not commented on intention as a motivating factor in justifying or not justifying school regulation, the Second and Fourth Circuit Courts establish the idea of intention as an important characteristic to evaluate

28 This case is currently under review by the Tenth Circuit Court of Appeals.

29 C1.G. ex rel. Son v. Siegfried, 477 F. Supp. 3d 1194, 1209 (D. Col. 2021).

30 Id. at 1209.

31 Id. at 1207.

32 Id.

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UCLA UNDERGRADUATE LAW JOURNAL in social media student speech. The District of Colorado does the opposite, highlighting the split between different levels of the federal courts.

While these splits may seem insignificant in the larger picture of free speech doctrine, this splintering of the lower courts highlights a legal crisis at the center of American jurisprudence: with the law ambiguous and the Supreme Court providing no guidance, there is an inefficient and flawed application of justice across geographical boundaries. The Mahanoy case, which the Court heard in 2021, is a potential avenue for this guidance and resolution.

III. Mahanoy Area School District v. B.L: The Opportunity to Clarify Mahanoy Area School District v. B.L. is the most recent handling of student speech by the Supreme Court and, therefore, serves as a glimpse into how the Court may handle speech cases in the near future. Moreover, it functions as a key turning point in student speech precedent in that it is the first case taken by the Supreme Court regarding online speech in particular.

A. The Rationale of the Mahanoy Court As the first online school speech case brought to the Supreme Court, Mahanoy was the primary opportunity to rectify the confusion of the lower courts and clarify the geographical nexus of online speech cases. Mahanoy is the first true “off-campus” speech that the Court has considered, although the on and off-campus distinction in terms of social media is ambiguous at best.

The speech in question was a profane Snapchat by the respondent and a friend with their middle fingers out, captioned “fuck school fuck softball fuck cheer fuck everything.” 33 This online speech, originating from a grocery store on a weekend, led to respondent B.L.’s removal from her cheer team due to the policy of no tolerance of negative information about the team on the Internet or otherwise. The Third Circuit, upon review, ruled in favor of B.L., holding that the school’s regulation of B.L.’s speech was constitutionally impermissible. 34 33

Mahanoy Area School District v. B.L. ex rel. Levy, 594 U.S., slip op. at 2, (2021), aff’g 964 F.3d 170 (3d Cir. 2020).

34 Id. at 170.

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT Most significantly, the Third Circuit held that Tinker’s substantial disruption standard does not apply to off-campus student speech and as such, the school cannot punish B.L. for her expression of pure speech. 35 The Court, while eventually ruling similarly to the Third Circuit, disagreed with the circuit’s rationale. It applied a modified Tinker standard consistent with the “three features of off-campus speech” to determine if B.L.’s First Amendment rights protected her expression. 36 First, while the school environment is deemed to have “special characteristics” which allows it to function in loco parentis, the Court held that a school will “rarely” stand in loco parentis in cases where a student speaks off campus. 37 Second, the Court explained that with the regulation of off-campus speech, coupled with the rules enforced on-campus, student speech would be restricted all 24 hours of a day.

Essentially, any adjudication of off-campus speech must be “more skeptical” of a school’s effort to regulate it because doing so would limit any speech that the student could engage in at any time of the day.38 The third feature defined by the Mahanoy Court was that schools themselves, by the very nature of being “nurseries of democracy,” have a unique interest in protecting the unpopular expression of students. 39 The Court reasoned that B.L.’s post was protected under the First Amendment because not only was her speech “pure speech” based in her own critical viewpoint of her school and community, but it also did not include any features of student speech (fighting words, obscenity, 40 bearing school 35 Id. 36 Mahanoy, 594 U.S., slip op. at 7.

37 Id. 38 Id. 39 Id at slip op. 2.

40 Not all uses of the f-word or profanity/vulgarity

in general are considered obscene. See Miller v. California, 413 U.S. 15 (1973) finding that speech is obscene and therefore unprotected if it passes all three criteria: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” In other words, the vulgarity or profanity in question would only be obscene if it met all of these criteria (which in this B.L.’s case, it did not, and was merely used to express a viewpoint). See Cohen v. California, 403 U.S. 15, 25 (1971), where the Supreme Court ruled that a jacket saying “fuck the draft” was protected speech

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UCLA UNDERGRADUATE LAW JOURNAL imprimatur) that are historically outside the First Amendment’s protection.

With the identification of the three features distinguishing off-campus speech, the Court sketches out a general framework for determining the proscribablity of off-campus student speech with a modified Tinker standard. This standard emphasizes that “the special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off campus.” 41 B. The Insufficiency of the Mahanoy Court’s General Rule Aside from a passing reference to social media speech where the Court identifies the nature of B.L.’s speech as directed towards “an audience consisting of her private circle of Snapchat friends,” the Court sidesteps the issue of online speech entirely. 42 In fact, the Court admitted as such about their guidelines (or lack thereof) formulated in the Mahanoy rationale: Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on such a list. Neither do we now know how such a list might vary, depending upon a student's age, the nature of the school's off-campus activity, or the impact upon the school itself. Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as "off campus" speech and whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community. 43

As for the intersection with Tinker, the nature of the digital sphere is such that while speech may originate from a locale that is off-campus in the physical sense, it can easily disseminate (both on or off-campus) and influence the oncampus environment of the school. The increasing use of social media also erases all notions of what it means to be on- or off-campus entirely in regards to student speech and prevailing school authority. because “For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric.”

41 Mahanoy, 594 U.S., slip op. at 2.

42 Id. at slip op. 9.

43 Id. at slip op. 6–7.

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT While the on-campus versus off-campus distinction may be a bright line that protects B.L.’s speech in this case, due to its simplicity, the distinction does not have the prescriptive power to aid decision making in future cases. In Kowalski, the 4th Circuit posed a philosophical observation about the student who expressed her speech online: “This argument, however, raises the metaphysical question of where her speech occurred when she used the Internet as the medium.” 44 Even if the student “pushed her computer’s keys in her home,” the electronic response of this action occurs in the abstract and virtual bounds of the Internet. 45 Speech that may originate from a physical location may not necessarily belong to it and thus requires its own means of evaluation.

Because social media’s boundaries are intangible and difficult to define, the usefulness of the on and off-campus distinction is not only an unhelpful and inelegant solution here, but by the Court’s own admission, it fails to establish anything resembling a clear standard that could clarify future social media speech cases. The only reason the three features could be formulated by the Mahanoy Court to inform the ruling in favor of respondent is because in this case, the speech occurred indisputably off campus. A new standard is entirely necessary given the lack of existing framework that would guide judicial arbitration in this matter. This standard must center on social media speech specifically requiring a new and extendable manner of evaluation separate from an arbitrary on and off-campus distinction.

IV. A New Standard Any examination of social media speech must analyze the nature, style, or medium of the social media used to express such speech.46 The principles underlying all free speech inquiries remain consistent across various media; 44 Kowalski, 652 F.3d at 573.

45 Id. 46 Ashcroft v. ACLU, 535 U.S.

564, 595 (2002). (“Indeed, when Congress purports to abridge the freedom of a new medium, we must be particularly attentive to its distinct attributes, for ‘differences in the characteristics of new media justify differences in the First Amendment standards applied to them.’ . . . The economics and the technology of each medium affect both the burden of a speech restriction and the Government's interest in maintaining it.”).

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UCLA UNDERGRADUATE LAW JOURNAL however, the nature of different modes of online expression lend themselves to different situations and interpretations, a phenomenon intensified by the different forms of social media available to students.47 In the past “there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, but today the answer is clear; it is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” 48 To properly contextualize the unique nature of the social media medium with a standard of evaluation for student speech, this article proffers a multipart, tiered test that considers the distinct features of social media speech that separate it from the physical and geographic distinctions made in the lower federal courts.

A. The Three Tiers The three tiers of this new standard must center on social media analysis to evaluate a school’s justified ability to regulate the student speech due to lack of a current precedent. The first tier adopts and synthesizes the Snitch/Geographical Nexus standards developed by the Second and Fourth Circuit Courts. Unlike the existing standards, this tier also illustrates the deficiencies of relying solely on such a standard, namely its lack of differentiating power between different kinds of social media speech, which necessitates the creation of additional tiers.

Following this, the second tier maintains that regardless of the nature or medium of the speech, if it expresses criticism, a political or personal opinion, or any other content-based self-expression, then it is protected under the First Amendment.

The third tier provides further guidance in different scenarios of social media speech, arguing that in cases where the social media speech contains vulgar, harassing, or lewd content, the controlling authority is the lifespan of the

47 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952).

48 Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017)

844, 868 (1997)).

34

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT speech, specifically whether it is transient or permanent. This section additionally addresses potential counter arguments that may question the nature of this article’s standard. All together, these three tiers constitute the novel contribution this article makes to existing First Amendment jurisprudence on the topic of social media student speech. i.

Tier 1: The Snitch and Geographical Nexus Test

Student social media speech is protected by the First Amendment if there is (1) no reasonably foreseeable risk that the social media speech would come to the attention of the school environment and cause disruption or (2) no geographical nexus between the student’s speech and the school environment where the school’s pedagogical interests would prevail.

This first tier is in the vein of the Snitch and Geographical Nexus tests of the Second and Fourth Circuit, respectively. However, this tier must be supplemented by acknowledging that the interconnectedness of the Internet and its relative enormity means most, if not all, social media speech can be drawn or disseminated to the school environment. The social circles of students, the ubiquity of social media usage, and the accessibility of communication in the technological era all contribute to this result. Subsequently, the Snitch and Geographical Nexus tests posed by the two Circuit Courts will almost always endorse school regulation in the case of social media speech specifically, which is a flaw in these tests.

Opponents to this reasoning may argue that in cases with neither geographical nexus nor any reasonably foreseeable risk, evidence of disruptions to the school’s learning environment under Tinker might warrant the use of Tinker’s balancing test and thus justify regulation. However, these disruptions cannot always be attributed to the student speaker themselves. As the Third Circuit noted, disruptions can arise not out of the social-media student speech itself, but rather, as a direct result of a school’s response. 49 In Mahanoy, B.L.’s

49

J.S. ex rel. Snyder v. Blue Mountain School District, 593 F.3d 286, 310 (3d Cir. 2010).

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UCLA UNDERGRADUATE LAW JOURNAL speech would not be the cause of any school disruption. Rather, B.L.’s peer’s screenshot of her post – which stabilized entirely outside of B.L.’s Snapchat speech that had originated as private – disrupted school by publishing the speech independently and then sharing it with coaches and other school officials.

Critics claim that Tinker’s substantial disruption standard used by these Circuit Courts “is ill-suited to speech in the digital media.” 50 As one critic explained, extending the Tinker approach to off-campus speech permits schools to serve as cultural censors, effectively granting “schools virtually unlimited authority to restrict student expression because it is arguably foreseeable that virtually any speech that concerns the school, its personnel, or its students will come to the attention of school officials.” 51 While most student speech cases would not be protected by this first tier since it can be expected social media speech will almost always reach campus, this test is still useful in cases where there is clearly no risk of the content reaching the school. For example, if a student posts a criticism about their school on a private Instagram account that no one from their school follows, then there is no reasonably foreseeable risk that the student’s speech would reach the school, nor is there a geographical nexus between the speech and the school that would legitimize the school’s regulation of that speech. Therefore, the student’s speech in this scenario would undoubtedly be protected under their First Amendment rights. While the first tier is relevant here in that it neatly resolves the question of regulation, instances similar to this might be rare, as explained earlier.

The two tests formulated by the Second and Fourth Circuits are not a differentiating factor and cannot stand alone in any created methodology for evaluation. Thus, the second and third tier will seek to address this problem and create such a distinguishing factor between distinct forms of social media student speech.

50 Papandrea, 51 Id.

supra note 18, at 1102.

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT ii. Tier 2: Content-Specificity Test If the student social media speech is content-specific in the sense that it communicates a certain viewpoint (whether it be political speech, criticism, or selfexpression), the speech is protected under the student’s First Amendment rights.

As the Court has recognized, schools are the “nurseries of democracy,” making it necessary to protect content-based speech. 52 An example of the application of this second tier is the consideration of cases where speech expresses criticism of government authorities; in the case of student speech, this usually takes the form of school officials. A holding on any grounds in favor of school regulation would contravene the Court’s longstanding recognition of the importance of breathing space, or wide latitude, for speech under the First Amendment: there is free-speech value even in an “erroneous statement [because it] is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the “breathing space” that they “need . . . to survive.” 53 The breathing space of the First Amendment does not allow for the restriction of political speech about government authority. The Court considers criticism against government officials an important contribution to society in that it should be allowed and encouraged. All decisions on free speech must be made “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 54 An application of this second tier is seen in the consideration of cases in which student speech expresses criticism of government authorities as in Mahanoy. Criticism of a cheer team or a school official is an extension of a student’s free speech rights because for B.L. and other students, government authorities effectively take the form of school officials. As a result, the 52 Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594 U.S., slip op. at 2, (2021).

53 New York Times Company v. Sullivan, 376 U.S. 254, 271–72 (1964).

54 Id. at 270–71. See also Terminiello v. Chicago, 337 U.S. 1, 4 (1949); De Jonge

U.S. 353, 365 (1937).

37

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UCLA UNDERGRADUATE LAW JOURNAL controlling factor is the content or opinion expressed within the speech that solidifies its protection under First Amendment jurisprudence. However, when the content becomes vulgar, obscene, lewd, or even harassment, the controlling authority is the speech’s lifespan, where manifest intent and social media becomes significant. iii.

Tier 3: Lifespan Test

If the speech has a transient lifespan and contains vulgar, obscene, lewd, or harassing language, the speech is protected. By contrast, if the speech has a permanent lifespan and contains obscene, lewd, or harassing content, the speech is not protected under the student’s First Amendment rights.

Because the nature of online communication “renders it likely that any online student speech may find its way onto a campus,” a rule that evaluates the “manifest intent of the student speaker” is necessary to determine the ability of the school to regulate the student speech. 55 Without this additional tier, schools would potentially be able to restrict speech communicated at any time and place. 56 The Fourth Circuit recognized this point when it held in its Geographical Nexus test that the intent of the student to direct their speech towards campus was an important consideration. 57 To understand the intent of the student speaker, one must take into account the nature of the social media speech and what this article uniquely terms as the “lifespan” of the speech. The lifespan of a speech refers to the speech’s transience (or lack thereof) and its privacy (or lack thereof). Both of these factors are informed by the characteristics of the specific social media speech medium used to communicate the expression. The Fourth Circuit had previously established a more general sketch of the idea of a speech’s lifespan (without naming it as such) by holding that “the nature and content of the speech, the objective and subjective seriousness of the speech… [and] the intent of the speaker to disseminate, or keep private, the speech” inform determinations on 55

Avery Medjuck, Everywhere at Once: The Tinker Framework and Off-Campus, Online Speech, N.Y.U. Proc. 1, 6 (2018) (application of the Tinker framework).

56 Id. 57 Bell v. Itawamba Country School Board., 799 F.3d 379, 394–95 (5th Cir. 2015).

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT its status of protection. 58 This proposed standard extends and more clearly defines this notion of a speech’s lifespan.

The controlling question as to the proscribability of vulgar, harassing, or lewd speech is how transient or private the communication is when it reaches its first audience operating with the speaker’s original intent. The lifespan of speech informs the manifest intent of the student speaker. To share a message on a medium that holds speech with a transient lifespan indicates a lack of ill or disruptive intent on the part of the speaker. Specifically, if the speech is shortlived or private, the student’s intent for the message to disrupt the school environment or be taken seriously is comparatively weaker than non-transient messages that are posted in perpetuity and public. Even if such speech can be reasonably foreseen to arrive to the school environment and spur the school’s legitimate pedagogical concerns, this speech is ubiquitous, and the first tier is not definitional of whether it can be regulated. Instead, the intent of the speaker through the medium and format of the social media speech chosen is key here.

The concept of a speech’s lifespan as a marker of intent can be projected when understanding social media speech on Snapchat. 59 Pictures and messages shared on Snapchat are self-deleting, making them examples of transient lifespan speech. An individual Snapchat picture or message, once received, opened, or viewed, cannot be accessed again. Not only can users decide how long they want a private picture they sent to be available for (ranging from one second to ten seconds), but pictures that are more far reaching (ones that are on “stories,” for example) disappear after 24 hours.

Instagram and Facebook stories utilize a similar strategy to create enclaves of the internet where speech is fleeting and easily disappears. The short-lived

58 59

Id. at 398.

Given the entirely contemporary nature of this article’s provided standard, the notion of manifest intent and speech lifespan as a defining feature when considering the proscribability of social media speech is without support from existing First Amendment jurisprudence. This, coupled with the fact that the Court has only considered one social media school speech case, creates a plane of First Amendment law that is lacking legal precedent. For the purposes of this article, support for the offered manifest intent doctrine comes from a less developed iteration found in the Fourth Circuit, supra note 57, as well as FCC guidelines on radio transmissions.

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UCLA UNDERGRADUATE LAW JOURNAL nature of this form of media demonstrates lack of intent and therefore makes this type of speech protected.

Another aspect of speech that can inform its transience is the privacy of such speech. Snapchat is a private service: users curate their followers and can create private stories with audiences of their choosing. Other social media platforms have similar features that allow users to limit who views their content, such as private Instagram or locked Facebook groups. The Third Circuit is in favor of analyzing the privacy and format of social media speech, noting that the student, upon creating a parody MySpace website of his teacher, “took specific steps to make the profile ‘private,’” which ultimately informed the decision to hold in the student's favor.60 In this sense, a person’s usage of these specific forms of social media can be likened to the privacy of a diary. Not only can this diary be under a perpetual lock and key, but the writer of the diary makes specific and conscious decisions as to who to show the messages to. The relationship between transient lifespan speech and the intent of the speaker is what informs this tier’s rule on the legality of proscription.

Speech with a transient lifespan informs the manifest intent of the speaker as being less severe than the same speech with a permanent lifespan. For example, FCC regulations on radio transmissions provide a safe harbor regarding indecency when prohibited references are fleeting. 61 The Commission has argued that “where sexual or excretory references have been made once or have been passing or fleeting in nature, this characteristic has tended to weigh against a finding of indecency.” 62 Essentially, this decision solidified the notion of transience in that if radio messages that were obscene or lewd were only temporary, they would not be held as indecent or offensive enough to warrant regulation. This guidance on digital radio transmissions from the FCC can be extended to cases of social media speech. In cases where transient lifespan speech contains language that is lewd or vulgar (such as B.L.’s speech in Mahanoy), the speech remains protected.

60

J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 925–27 (3d Cir. 2011), cert. denied, 565 U.S. 1156 (2012).

Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999, 8002, 8003 (2001).

62 Id. at 8003, 8008.

61

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT Critics of this argument may argue that the school has the responsibility to limit vulgar or lewd speech despite its transience to preserve the sanctity of the learning environment, especially because such speech has the unique quality of being provocative even if generally meaningless (such as the “Bong Hits for Jesus” banner in Morse). However, under the standard explained by the Mahanoy Court, it is noted that the school will rarely stand in loco parentis in cases where the student speech is not on campus. This ideal extends in regulating cyberspace as well; even if there may be a state interest in regulating the speech of minors, the school cannot stand in loco parentis when the parents can affect regulations on the students themselves. 63 The Court has determined that “speech that is [not] subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” 64 Contrary to critics who argue the vulgar language is uniquely dangerous, in cases where speech is transient, any vulgar language automatically becomes less potent. On the topic of vulgarity in general, the Court has argued that the government has no right to sanitize language to a point where it sees fit: “Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us…one man's vulgarity is another's lyric.” 65 This ideal can be extended to vulgarity in transient student speech matters, as seen in the case of students who posted raunchy and vulgar photos from a private slumber party on a private MySpace account. The U.S. District Court for the Northern District of Indiana protected the students’ First Amendment right to post these pictures and ruled that teenage conduct may be juvenile or silly, and “no message of lofty social or political importance was conveyed, but

63 Erznoznik v. Jacksonville, 422 U.S. 205, 212–213 (1975).

64 Brown v. Entertainment Merchandise Association, 564 U.S.

786, 794-95 (2011): “No doubt government can take an interest in protecting children from harm . . . But taken by itself, independent of a balancing test that also weighs children’s rights, a government interest, however well intended, does not establish government’s free-floating power even to restrict the ideas to which children may be exposed.”

65 Cohen v. California, 403 U.S. 15, 25 (1971).

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UCLA UNDERGRADUATE LAW JOURNAL none is required.”66 When applying the third tier to this case, the student's speech would be protected due to its transient lifespan that derives from the private account it was posted on, which signifies its triviality as quoted above.

That B.L.’s transient and profane language made use of the f-word repeatedly signals an absence of seriousness on her part, given that teenage vernacular choices are often quite silly or meaningless in nature. As the Northern District of Indiana has recognized, some speech may not be “a high-minded effort to express an idea such as burning a flag or wearing a black arm band.” 67 Nevertheless, this vulgar speech, when transient, still requires the full protection of the First Amendment.

Transient lifespan speech can be contrasted to permanent lifespan speech which, as expected, is the speech in which the student speaker communicates through a medium that is fixed and public. Examples of this can be emails, public Instagram accounts, or mass Facebook posts and announcements. As a general rule, permanent lifespan speech would necessitate a greater level of scrutiny for student speech due to the manifest intent being more serious and less flippant than the kind of messages expressed through transient lifespan speech.

Specifically, speech being permanent signifies that it can and may be regulated.

For example, had the case of the students who posted raunchy and vulgar photos at a slumber party been on a more permanent, public platform, this tier would not have protected their speech since the permanence creates a more likely disruption.

Harassing, lewd, or vulgar speech that has a permanent lifespan instead of transient lifespan carries a far more potent danger to the school environment as signified by the manifest intent of the student speaker. In this situation, the school’s pedagogical interest is a compelling authority to protect their students

66

T.V. ex rel. B.V. v. Smith-Green Community School Corporation, 807 F. Supp. 2d 767, 776 (N.D. Ind. 2011). See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981) (live entertainment falls within the First Amendment guarantee); Zacchini v. Scripps–Howard Broadcasting Co.,433 U.S. 562, 578 (1977) (“There is no doubt that entertainment, as well as news, enjoys First Amendment protection.”); T.V. ex rel. B.V. v. Smith-Green Community School Corporation, 807 F. Supp. 2d 767, 775 (N.D. Ind. 2011) (''ridiculousness and inappropriateness are often the very foundation of humor”).

67 T.V. ex rel. B.V., 807 F. Supp. 2d at 775.

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THE NEED FOR A NEW STANDARD IN EVALUATING SOCIAL MEDIA SPEECH WITHIN THE SCHOOL ENVIRONMENT and the learning space. As such, First Amendment rights here do not protect the student’s social media speech from school proscription.

B. Comparative Evaluation These three tiers comprise this article’s comprehensive standard towards school social media speech. It can be noted that this methodology exists as the converse to the District of Colorado’s reasoning which explicitly rejects the evaluation of student intent as a useful analytical tool because of the fact that most social media speech will reach campus. This standard instead argues that the very fact that social media speech can almost always reach campus does not allow it to differentiate between different forms of social media student speech.

This is why understanding the manifest intent of the student speaker through examining the characteristics of the social media medium used is entirely necessary.

Additionally, while this multi-tiered standard utilizes the intent of the student speaker when evaluating the school’s ability to regulate the speech, it differs in its application of intent as compared to the Fourth Circuit’s Geographical Nexus test. As explained in the first tier, neither the Snitch nor the Geographical Nexus test can accurately encapsulate the full scope of social media speech nuance. As a result, this test’s use of intent involves the analysis of the speech’s content lifespan, while the Circuit Courts use a simpler version of intent that merely evaluates for a vague “nexus,” or connection created by the speech that would justify proscription. Ideally, this proposed standard will help erase the existing confusion amongst the lower Courts that has resulted in an ideological split.

Conclusion With the rapid increase of developing technology in the modernized world, the judiciary is tasked with balancing the interests of a school’s pedagogical responsibilities with the rights of students whose access to new and unique methods of speech and media is mounting. This predicament is a stressor on the

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UCLA UNDERGRADUATE LAW JOURNAL school’s paradoxical yet concurrent goals to both be a nursery of democracy by promoting a marketplace of ideas as well as a safe learning environment for its young students.

Though the Court's opportunity to clarify the ideological split on the topic of social media speech in Mahanoy prevailed in favor of free speech rights, the Court presented an incomplete and vague rationale that sidestepped the issue of social media entirely. This lack of guidance created the need for a new standard that can guide the judicial decision-making of courts of law.

While this article’s standard is expansive and has the predictive power to be extendable to future cases, the natural effect of the growing usage of technology by students will result in situations not immediately captured by this new methodology. In those cases, it is the burden of the Court to suggest guidance in the form of newly developed First Amendment doctrine, affirming its nature as a living and changing collection of ideals and standards.

For social media speech that is currently within the bounds of comprehension, however, this article’s standard resolves an increasingly salient issue within First Amendment jurisprudence. In summation, only careful analysis of the content and medium of student social media speech, governed by Tinker’s careful balance of interests, is determinative. Here this new standard determines the legality of student social media speech under the First Amendment, contrary to an artificial and post-hoc geographic distinction grafted onto a medium that transcends geography.

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UCLA UNDERGRADUATE LAW JOURNAL Carmen Le*

The Future of Public Charge ABSTRACT. The public charge inadmissibility test, which excludes prospective immigrants that are perceived as a potential drain on public resources, has been a part of United States (U.S.) immigration policy for nearly 150 years. Since its initial inclusion in the Immigration Act of 1882, the shifting definition of the public charge determination has allowed the federal government to discriminate against prospective citizens based on factors including race, income, ability, and sexuality.

Currently, a Republican-led coalition of states is asking the Supreme Court to reinstate the Trump-era Final Rule. The article argues that the Court should use this opportunity to abolish the public charge determination as a vehicle for discrimination. The continued application of the public charge test violates Section 504 of the Rehabilitation Act of 1973 because it discriminates against applicants based on their ability and health status and causes a “chilling effect” that prevents vulnerable populations from accessing essential public services for fear that utilizing them may count negatively against their immigration applications. Ultimately, the public charge determination is part of a greater trend of American immigration laws embodying exclusionary and discriminatory attitudes toward anyone the U.S. government considers undesirable and unworthy of citizenship.

*Carmen Le is a third-year transfer student pursuing a major in Public Affairs and a minor in International Migration Studies at UCLA. As the daughter of a refugee and an immigrant, Carmen hopes to dedicate her life to fighting for justice and equity through immigration law and policy. She would like to thank her friends, family, mentor, TA, and editor for their continued support in making this article—and everything else—possible.

Editor: Valentina Macchione is a fourth year Political Science Major at UCLA. She is excited to graduate in the spring and eager to attend law school in the near future. Valentina would like to thank her writer, Carmen Le, for bringing awareness to a significant issue that has continued to impact the lives of many individuals nationwide.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction In August 2019, the Department of Homeland Security (DHS) under President Donald Trump controversially issued the Public Charge Final Rule (Final Rule). This regulation extended the definition of the public charge determination to include all those who have used at least one basic public benefit for 12 out of the last 36 months, putting thousands of immigrants’ legal statuses and immigration applications in jeopardy. This change excluded so many people that if the rule were applied to all residents of the U.S., over half of citizens born in the U.S. would be deemed a public charge. 1 In practice, the legal status and immigration applications of thousands of U.S. immigrants were put at risk. This high-profile action brought attention to the public charge rule, calling into question the practice as a whole.

The public charge determination is one of many criteria that immigration officials have used for over a century to determine whether or not to grant visas or citizenship. The public charge rule excludes prospective immigrants whom immigration officials deem will be overly reliant on public services in the future.

However, the federal government has only vaguely defined how immigration officials should identify which individuals are the most likely to become primarily dependent on public resources in the future.

In August 2020, the U.S. Court of Appeals for the Second Circuit struck down the Public Charge Final Rule in Department of Homeland Security v. State of New York. Though the Biden Administration ultimately chose not to defend the Final Rule before the Supreme Court, the Court left the door open to future challenges to the current understanding of the public charge clause. 2 Soon after this decision, in June 2021, a coalition of Republican-led state governments filed an emergency suit, The State of Arizona v. City and County of San Francisco, California, to halt the effects of the ruling. 3 Although the Public Charge Final Rule is no longer be enforced, the federal government has since reverted to 1

Danilo Trisi, Trump Administration's Overbroad Public Charge Definition Could Deny Those Without Substantial Means a Chance to Come to or Stay in the U.S., Center on Budget and Policy Priorities (May 30, 2019).

2 Department of Homeland Security v. New York, 140 F.2d 1-157a (2nd Cir. 2020).

3 The State of Arizona v. City and County of San Francisco, 992 F.3d 20 (9th Cir. 2021).

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THE FUTURE OF PUBLIC CHARGE enforcing the definition of public charge outlined in the 1999 Field Guidance. 4 For this reason, the public charge determination continues to be an integral part of U.S. immigration regulations. Additionally, conservative actors continue to attack immigrant rights through cases such as The State of Arizona v. City and County of San Francisco, California. The Public Charge Final Rule and the Supreme Court’s inaction has opened the door for future administrations to expand the conditions for the public charge determination once again, effectively using their legal status as a political tool to target immigrant populations.

The public charge rule is of great importance to thousands of hopeful and current immigrants to the U.S. Currently, noncitizens’ visas can still be denied for using cash-based assistance, such as Supplemental Security Income (SSI) or CalWORKs, or long-term nursing home care paid for by Medicare or Medicaid.

The topic of public charge is also a matter of discrimination. Those fighting for disability justice believe the statute to be a form of ableism and anti-queer discrimination. This is primarily due to the fact that it allows immigration officials to reject cases based on the current characteristics of applicants such as their age and health status, which may encompass disability and HIV status. In reconsidering the public charge determination through the Public Charge Final Rule, the Court should abolish the public charge determination as a form of discrimination against disabled, low-income, and queer applicants.

This article will provide a unique perspective on the future of the public charge rule, as the legal system is at a crossroads in clearly defining what makes an individual likely to become a public charge. I will begin with a discussion of how the unclear and shifting definition of the public charge determination has enabled discrimination since its inception by examining the federal policies that have addressed the definition since the Immigration Act of 1882. I will then explain the Trump Administration’s Public Charge Final Rule and evaluate the future of the definition of public charge through an examination of Department of Homeland Security v. New York and State of Arizona v. City and County of San

4

Immigration and Naturalization Service, Justice, Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, FEDERAL REGISTER, 64, no. 101 (1999).

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UCLA UNDERGRADUATE LAW JOURNAL Francisco. To conclude, I will argue that in The State of Arizona v. City and County of San Francisco, California, the Supreme Court should rule to nullify the public charge statute because it is a vehicle for legalized discrimination against disabled and LGBTQ+ immigrants. With that in mind, the public charge determination should be abolished as an inadmissibility test in visa applications and the immigration system altogether.

I. A History of Public Charge To understand the history of public charge is to acknowledge that immigration policy in the United States has historically prioritized personal independence, assimilation, and self-sufficiency. The phrase “public charge” was first used as a criterion for immigration status in the Immigration Act of 1882. 5 The nation’s first immigration statute specifically excluded “any person unable to take care of himself or herself without becoming a public charge.” 6 Despite a multitude of changes to social welfare and immigration policies, since the passage of the initial Immigration Act of 1882, the public charge determination has been included in every subsequent piece of immigration legislation. 7 This determination was codified in the Immigration and Nationality Act of 1952 (INA). According to the INA, visas or legal status may be denied or revoked for any individual who is deemed to be “likely at any time to become a public charge” based on a number of factors including age, health, family status, financial status, education, and skills. 8 After the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, immigration officers began to identify whether prospective immigrants would become a public charge based on “age, health, family status, financial status, education, skills, and affidavits

5 6

Act to Regulate Immigration, Pub. L. No. 47-376, §§ 1-5, 22 Stat. 214, 214 (1882).

Immigration Act of 1882, ch. 376, § 2, 22 Stat. 214, 214; But see Ibrahim Hirsi, Trump Administration’s ‘Public Charge’ Provision Has Roots in Colonial US, WORLD, Dec. 19, 2018 (arguing that prior to this act, the government deported individuals for their poverty).

7 Joseph Daval, The Problem with Public Charge, YALE LAW JOURNAL 130, (4) 2020-2021: 998-1049.

8 Immigration and Nationality Act, 28 U.S.C. § 1182(a)(4) (1952).

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THE FUTURE OF PUBLIC CHARGE of support.” 9 For the first time, receipt of public benefits was also among the factors that could deem a person a potential public charge. 10 Former President Bill Clinton purported that this piece of legislation would combat the rise in illegal immigration, especially at the U.S.-Mexico border. 11 However, in the years following the passage of the IIRIRA, critics have argued that the act punished all those who enter the U.S. immigration system due to its erosion of due process.12 In 1999, the INS issued the “Field Guidance on Deportability and Inadmissibility on Public Charge Ground” to clarify the public charge rule. 13 Under this definition, the federal government negatively considers use of the following: cash-based government assistance such as Supplemental Security Income and Temporary Assistance for Needy Families and long-term institutional care at the government’s expense. 14 As the latest authority on public charge other than the Trump-era Final Rule, the accepted definition of public charge came to specifically refer to only potential immigrants who are unemployed and primarily dependent on government welfare for long-term income. 15 In an attempt to identify these individuals, the 1999 Field Guidance focused mainly on cash benefits, excluding programs aimed at food and housing security because of their focus on upward mobility and public health. American immigration legislation and enforcement heavily favor those prospective immigrants whom they deem to be self-sufficient; in other words, those who are wealthier and more able-bodied. In this regard, the public charge determination 9

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, sec. 531, § 212(a), 110 Stat. 3009–546, –674 (codified as amended at 8 U.S.C. § 1182(a)); But see Donald Kerwin, From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis, 6 J. ON MIGRATION & HUM.SEC. 192, 198–99 (2018) (arguing that by expanding inadmissibility and removal grounds, IIRIRA disrupted family unity by removing members already in the U.S. and disincentivized the immigration of poor individuals).

10 Daval, supra note 7, at 4.

11 William Clinton, Statement on Signing the Omnibus Consolidated Appropriations Act (September 30, 1997).

12 Donald Kerwin, From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis, JOURNAL ON MIGRATION AND HUMAN SECURITY 6, (3) 2018: 192-204.

13 Immigration and Naturalization Service, Justice, Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, FEDERAL REGISTER 64, no. 101, (March 26, 1999).

14 Community Education Resources on Public Charge, Protecting Immigrant Families (Jan. 25, 2022).

15 United States Department of Homeland Security v. New York, 140 F.2d 1-157a (2nd Cir. 2020).

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UCLA UNDERGRADUATE LAW JOURNAL serves as a vehicle of exclusion against whomever the government finds undesirable, unwelcome, and undeserving of a place in this country.

II. The Current State of Public Charge Today, when determining whether or not to grant immigration applications, U.S. immigration officers are still instructed to consider a number of factors.

The public charge determination continues to affect those applying for immigrant visas at U.S. consulates abroad; as well as temporary residents and undocumented individuals applying for green cards, lawful permanent resident (LPR) status, or other adjustments to their immigration status. 16 If an immigration officer decides to reject someone’s application for any reason, including if they are deemed liable to become a public charge in the future, these applicants have little to no avenue for appealing their immigration decisions.17 Many current and potential immigrants consider the use of essential public resources, such as Medicaid, to be high risk due to the seemingly fickle nature of immigration conditions and policy. 18 Undocumented and temporary residents are among the most vulnerable populations to fluctuations in the public charge determination. For instance, the Urban Institute found in 2018 that approximately one in five low-income immigrants reported that they or a family member forwent public benefits programs due to fears about their immigration status. 19 Since the start of the COVID-19 pandemic in 2020, nearly 44% of all adults in families with nonpermanent residents report avoiding noncash benefits due to concerns about the public charge rule.20 These findings indicate that, although the Final Rule is no longer in use, many immigrant communities continue to experience fear and hesitancy to enroll in necessary public benefits programs.

16 Protecting Immigrant Families, supra note 14.

17 Kerwin supra note 12.

18 Hamutal Bernstein et al., With Public Charge Rule

Looming, One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018, URBAN INSTITUTE, (Feb. 5, 2020).

19 Id. 20 Hamutal Bernstein et al, Adults in Low-Income Immigrant Families Were Deeply Affected by the COVID-19 Crisis yet Avoided Safety Net Programs in 2020, URBAN INSTITUTE (May 2021).

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THE FUTURE OF PUBLIC CHARGE A. The Trump-Era Public Charge Final Rule In 2019, the Trump administration expanded the nebulous definition of “public charge” to include all noncitizens who receive any federal benefits, such as Medicaid, SNAP food benefits, or housing assistance, for more than 12 out of the last 36 months. 21 For the first time, the federal government considered supplemental benefits aimed at upward mobility and public health in determining whether an immigrant was to become a public charge in the future.

In addition, the regulations outlined other factors that would negatively impact a person’s immigration status, including poor credit, low household income, limited English skills, low education levels, and certain health conditions. 22 This policy follows former President Trump’s track record of antiimmigrant and racist sentiment. As both a presidential candidate and President, Donald Trump repeatedly expressed opposition to immigration—legal or otherwise—by referring to those coming to the country as a burden to “our social safety net and generous welfare programs.” 23 These comments are not only xenophobic and racist, but are also aimed specifically at immigrants from Latin America arriving at the country’s southern border with Mexico, having referred to them with terms such as “alien,” “criminal,” and “invasion” over five hundred times within a two-year span.24 Though the administration presented the Final Rule as politically and racially neutral, the content of the rule compounded with the Trump Administration's historical track record of anti-immigrant sentiment and rhetoric has led many immigrants to fear for their legal status.

The Trump administration explicitly crafted this rule to exclude potential immigrants that are low-income, older, or disabled, among other groups. Ken Cuccinelli, the acting Deputy Secretary of DHS at the time, issued a statement 21

Amy Howe, Justices Rebuff States' Request to Reinstate Public-Charge Rule, but Leave Door Open for Further Litigation, SCOTUSBLOG (Apr. 26, 2021).

Public Charge Update What Advocates Need to Know Now, National Immigration Law Center, https://www.nilc.org/wp-content/uploads/2020/03/Public-Charge-What-Advocates-Need-toKnow-Now.pdf.

23 Arce, Julissa, Donald Trump's Anti-Immigration Rhetoric Is Rooted in Racism, TIME, (Aug. 6, 2019).

24 John Fritze, Trump Used Words like 'Invasion' and 'Killer' to Discuss Immigrants at Rallies 500 Times: USA Today Analysis,” USA TODAY (Aug. 21, 2019).

22

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UCLA UNDERGRADUATE LAW JOURNAL alongside the Final Rule, stating, “This rule enforces [the] longstanding law requiring aliens to be self-sufficient, reaffirming the American ideals of hard work, perseverance and determination. It also offers clarity and expectations to aliens considering a life in the United States and will help protect our public benefit programs.” 25 The Final Rule was one of many ways the Trump administration made all avenues of immigration into America more difficult for those who were not wealthy, able-bodied, cisgender and heterosexual, among other groups.

B. Challenges to the Final Rule Soon after the Final Rule was implemented, multiple state governments and nonprofit organizations advocating for immigrant rights filed a lawsuit to overturn the regulation. 26 They argued that the Final Rule was unlawful and instituted in a way that is arbitrary and capricious. The Trump Administration defended the Final Rule, claiming that public charge is not so narrowly defined as to exclude services such as Medicaid and food security programs such as CalFresh. 27 The cases reached the U.S. Court of Appeals for the Second, Fourth, Seventh, and Ninth Circuits in 2020. In each case, the judges affirmed that the law was likely in violation of the INA and was arbitrary and capricious. They found that the Final Rule was a sudden and drastic shift away from the previously accepted definition of the public charge rule. The DHS’ actions were found to be arbitrary and capricious because DHS did not adequately explain or support its rationale for the shift. 28 The federal government appealed the decision up to the Supreme Court, which agreed to review the matter. Ultimately, the Supreme Court never heard the culmination of the lawsuits included in DHS v. New York, due to the Biden Administration's decision to rescind the Final Rule and not defend the case 25

DHS Implements Inadmissibility on Public Charge Grounds Final Rule, Department of Homeland Security, (Feb. 24, 2020).

26 United States Department of Homeland Security v. New York, Br. in Opp. 140 F.2d 1-157a (2nd Cir. 2020).

27 United States Department of Homeland Security v. New York, 140 F.2d 10 (2nd Cir. 2020).

28 United States Department of Homeland Security v. New York, 140 F. 2d 11 (2nd Cir. 2020).

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THE FUTURE OF PUBLIC CHARGE before the Court. As a result, the lower court's decision was left to stand. 29 However, in The State of Arizona v. City and County of San Francisco, California, the Supreme Court will rule on whether to reinstate the Public Charge Final Rule.

C. Recommendations for Legislative Reform Despite the fact that the Biden administration chose to rescind the Public Charge Final Rule, the future of the public charge rule is more contentious than ever. As soon as the Supreme Court agreed not to hear DHS v. New York at the request of the Biden administration, a coalition of Republican-led state governments filed an emergency suit, Arizona v. San Francisco, to halt the effects of the ruling. In Arizona v. San Francisco, the states argued that the Ninth Circuit Court incorrectly ruled against the Final Rule, and that the states have a significant interest in the potential financial burden on states should the Final Rule be formally abolished. 30 They requested that the Supreme Court grant emergency stay, subsequently bypassing the traditional appeals system in favor of immediate action to force the federal government to re-implement the Final Rule. The petitioners cited the DHS claim that implementing stricter public charge standards would save state governments up to $1.01 billion in public benefits per year.31 The Supreme Court opted not to grant their emergency stay at the time, instead referring the case back down to the Circuit Courts. In doing so, however, the Supreme Court opened the door to hear a case on public charge in the future, once the case had gone through the lower courts. The Supreme Court heard oral arguments for Arizona v. San Francisco on February 23, 2022, primarily focusing on the right of states to intervene in federal decision-making on immigration; a decision has not yet been released at this time. 32 Because the Supreme Court has the opportunity to rule definitively on the public charge

29

United States Department of Homeland Security v. New York, 140 F.2d 1-157a (2nd Cir. 2020).

30 The State of Arizona v. City and County of San Francisco, 1775 S. Ct. 20 (9th Cir. 2021).

31 Id. at 24.

32 Amy Howe, Justices Probe States' Effort to Defend Trump Immigration Rule after Biden Stopped Defending It in Court,” SCOTUSBLOG (Feb, 26, 2022).

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UCLA UNDERGRADUATE LAW JOURNAL determination, we must consider the implications of the Court’s decision, and why they should abolish the public charge determination.

III. Abolishing Public Charge as Immigrant Justice The public charge rule represents American law’s exclusionary and discriminatory attitude towards immigration. 33 The system is designed to exclude and expel individuals belonging to some of the most vulnerable communities from gaining or applying for citizenship. Each of the significant changes to the public charge rule over the past century has been implicitly or explicitly made to curb the presence of certain undesired groups, which have historically included disabled and queer immigrants.

These updates to the public charge determination have been implicitly or explicitly made to exclude certain types of people from entering the country.

With the IIRIRA in 1996, President Clinton stated that he wanted to curb “illegal” immigration at the southern border, the vast majority of which is of Latin American origin. 34 When issuing the Public Charge Final Rule, the Trump administration clearly intended to exclude people who are low-income and living with medical conditions. Combined with Trump’s rhetoric around immigrants, many immigrants felt that using any type of public resource would make them undesirable in the eyes of federal immigration officers.

A. The “Chilling Effect” of Public Charge Even if the definition of public charge under the 1999 Field Guidance is less stringent than under Trump’s administration, the capricious and politicized nature of this immigration statute discourages immigrants from accessing public programs. The 1999 Field Guidance on Public Charge states that “officers must consider, at a minimum, the alien’s age, health, family status, assets, resources, and financial status, and education and skills when making a public charge

33

D’Vera, Cohn, How U.S. Immigration Laws and Rules Have Changed through History, PEW RESEARCH CENTER (May 30, 2020).

34 John Gramlich, Migrant Encounters at U.S.-Mexico Border Are at a 21-Year High, PEW RESEARCH CENTER (Aug. 16, 2021).

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THE FUTURE OF PUBLIC CHARGE inadmissibility determination,” 35 leading many to worry that such a holistic review of socioeconomic and health factors would include use of essential public services such as Medicaid. Since the initial implementation of the Final Rule in 2019—and even after it was repealed—research has revealed the presence of a “chilling effect” which has caused many immigrants to avoid utilizing otherwise essential public services for fear that it could impact either their present or future immigration status in the U.S. 36 For instance, in 2019, 1 in 4 low-income immigrant adults in California refrained from using necessary public resources like Medicaid or food security programs for this very reason, leading to higher rates of food insecurity and underinsurance among this population. 37 During the ongoing COVID-19 pandemic, many low-income immigrant families rejected much-needed safety net programs out of fear that they would be considered liable to become a public charge. 38 Moreover, researchers estimate that in California alone, thousands of children with at least one parent without a green card are at risk of losing access to a regular healthcare provider during a global pandemic. 39 This is especially concerning for the Latino community, who have been disproportionately impacted by COVID-19.40 The public charge rule instills fear in immigrant populations, especially communities of color and low-income communities, leading them to believe that choosing healthcare or food security means jeopardizing their legal status.

B. The Impact of Public Charge on Public Health Should the Supreme Court choose to allow the federal government to continue applying the public charge rule, even as pursuant to the 1999 Field 35 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, Immigration and Naturalization Service, FEDERAL REGISTER 64, no. 101 (Mar. 26, 1999).

36 Protecting Immigrant Families, Research Documents Harm of Public Charge Policy During the COVID-19 Pandemic, Protecting Immigrant Families, (Aug. 2021).

37 Susan H. Babey, et al, One in Four Low-Income Immigrant Adults in California Avoided Public Benefit Programs, Likely Worsening Food Insecurity and Access to Health Care, UCLA CENTER FOR HEALTH POLICY RESEARCH. 38 Hamutal Bernstein et al, Adults in Low-Income Immigrant Families Were Deeply Affected by the COVID-19 Crisis yet Avoided Safety Net Programs in 2020, URBAN INSTITUTE (2021).

39 Forgoing Healthcare in a Global Pandemic: The Chilling Effects of the Public Charge Rule on Health Access among Children in California, LATINO POLICY & POLITICS INITIATIVE (Feb. 16, 2022), https://latino.ucla.edu/research/public-charge-ca-children/.

40 Id.

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UCLA UNDERGRADUATE LAW JOURNAL Guidance, the country’s public health will suffer as immigrant communities continue to face neglect. Healthcare providers have warned that the aforementioned “chilling effect” that leads people to avoid necessary health services could potentially result in increased prevalence of health conditions such as obesity and malnutrition, as well as increased rates of social determinants of health such as poverty and housing instability. 41 As long as vulnerable members of the population continue to be scared away from using necessary health services, nationwide public health will suffer, especially during the ongoing coronavirus pandemic.

On the subject of COVID-19, for example, anti-immigrant policies are undermining vaccination and other government-led pandemic efforts.

Immigration officials do not consider vaccination status in granting visas or permanent residence, and federal and state governments have been encouraging all people to receive their COVID vaccines and boosters regardless of their legal status. 42 Nevertheless, the looming specter of public charge still scares many immigrants away from receiving life-saving vaccinations and healthcare.

According to research conducted by the Kaiser Family Foundation, more than 1 in 3 people expressed hesitation about receiving the COVID vaccine due to the immigration status of either themselves or a family member. 43 This is especially worrisome, seeing as many essential and frontline workers are immigrants. 44 Once again, the text of the 1999 Field Guidance on Public Charge clearly states that an individual’s health and financial statuses are factors in determining whether they are liable to become a public charge, 45 and the “chilling effect” associated with this rule discourages many immigrants from utilizing government services that could actually improve their health and financial situations. As long as the public charge rule exists, immigrants across the U.S.

41

Mitchell H. Katz and Dave A. Chokshi, The “Public Charge” Proposal and Public Health: Implications for Patients and Clinicians, JAMA (2018).

42 Jennifer, Sullivan, States Can Reduce Barriers to COVID-19 Vaccines and Treatment, Especially for Immigrants. Center on Budget and Policy Priorities, CBPP (Apr. 15, 2021).

43 Liz Hamel et al, KFF COVID-19 Vaccine Monitor: COVID-19 Vaccine Access, Information, and Experiences Among Hispanic Adults in the U.S, KFF (May 13, 2021).

44 Samantha Artiga, et al, Immigrant Access to COVID-19 Vaccines: Key Issues to Consider, KFF (Jan. 13, 2021).

45 Field Guidance, supra note 35.

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THE FUTURE OF PUBLIC CHARGE will not be receiving the full extent of the assistance they need to keep themselves, their families, and their communities healthy and safe.

C. Public Charge as Disability Discrimination The public charge rule is also a form of disability discrimination, because it instructs immigration officials to consider the totality of circumstances, which includes health and previous use of public services like Medicaid, both of which are impacted by an applicant’s disability status. In fact, immigration officials are instructed to consider any medical condition that may interfere with an applicant’s ability to live and work as a negative factor. 46 The legal definition of “disability” according to 42 U.S.C. § 12102 is any “physical or mental impairment that substantially limits one or more major life activities of such individual.” 47 In this regard, the public charge exclusion clearly discriminates against disabled applicants in violation of Section 504 of the Rehabilitation Act of 1973. The Rehabilitation Act was passed after the Civil Rights Act to provide additional protection for the civil rights of Americans with disabilities. 48 The Act specifically prohibits discrimination on the basis of ability by “any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency.” 49 The public charge determination requires immigration officers to negatively mark any applicant with medical conditions that interfere with life and work, which clearly overlaps with the legal definition of disability under 42 U.S.C. § 12102. 50 The text of the 1999 Field Guidance on Public Charge even defines “mental or physical disability” as a specific example for how “the burden of supporting the alien is likely to be cast on the public,” once again singling out disabled individuals as inherently prone to becoming a public charge. 51 Thus, the public charge

46

The Present & Future of Public Charge for Immigrants Living With HIV, AIDS UNITED (Jan. 1, 2019), https://aidsunited.org/the-present-future-of-public-charge-for-immigrants-living-withhiv.

47 42 U.S C. § 12102 (1990).

48 29 U.S.C. § 701 (1973).

49 29 U.S.C. § 701 (1973).

50 42 U.S. C. § 12102 (1990).

51 Field Guidance, supra note 35.

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UCLA UNDERGRADUATE LAW JOURNAL determination violates Section 504 of the Rehabilitation Act, targeting disabled immigrants for exclusion.

The public charge inadmissibility test also violates Section 504 of the Rehabilitation Act in that it limits disabled applicants’ access to health services.

In subsequent cases, the Supreme Court has found that government agencies in violation of Section 504 of the Rehabilitation Act must accommodate people with disabilities, as they ordered the California Department of Corrections and Rehabilitation to provide better accommodation in Brown v. Plata. 52 In Alexander v. Choate, the Supreme Court decided that disabled Americans are entitled to “meaningful access to [public] benefit.” 53 The public charge rule violates this right as established by Alexander v. Choate, because it limits access to the right to citizenship and meaningful services such as Medicaid and food assistance for immigrants with disabilities.

Although some may argue that the public charge rule does not prevent disabled immigrants from having meaningful access to necessary public health and social services, many immigrants living with disabilities feel that the rule has forced them to choose between medical care and their legal status in this country as a result of the public charge rule. 54 They fear that the government could use their health status or disability against their immigration applications, to deny them status, or even deport them. The consequences of this decision can be seen in the greater trends of lower food security and insurance coverage across the general immigrant population, not to mention those living with disabilities. 55 For many disabled immigrants, the public charge rule jeopardizes or inhibits their ability to live and work in this country.

Furthermore, the public charge exclusion perpetuates stigma about disabled people. For one, the public charge rule assumes that people with disabilities cannot be self-sufficient and are a drain on public resources. Medical conditions are a major factor in immigration officials’ assessments of whether an individual 52 Brown v. Plata, 563 U.S. 493, 493-581 (2011).

53 Alexander v. Choate, 469 U.S. 287, 287-309 (1985).

54 Harm of Public Charge Policy During the COVID-19 Pandemic, supra note 36.

55 Susan H Babey et al, One in 4 Low-Income Immigrant Adults in California Avoided

Public Benefit Programs, Likely Worsening Food Insecurity and Access to Health Care, UCLA CENTER FOR HEALTH POLICY RESEARCH (Mar. 1, 2021).

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THE FUTURE OF PUBLIC CHARGE will become a public charge, but with proper accommodations as mandated by the 1973 Rehabilitation Act and Americans With Disabilities Act, having a disability does not predetermine whether a person will become a public charge. 56 Another aspect of this stigmatization is the dilemma that many applicants with disabilities or disabled family members face as they choose whether or not to declare their need for a subsidy for health insurance, forcing many applicants to hide their disabled status or need for healthcare entirely.

D. Public Charge as Anti-Queer Discrimination The public charge exclusion also discriminates against queer immigrants, especially gay and bisexual men, a group that has been heavily associated with the stigma of HIV/AIDS. 57 Many HIV-positive people immigrate to the United States for a chance at a better life, but from 1993 to 2010, HIV was considered to be grounds for inadmissibility for short-term visas or LPR as one of the “communicable diseases of public health significance.” 58 Using immigration restrictions as disease control is a tactic that governments have historically used as a method to associate immigrants with illness. 59 Although HIV status is no longer considered grounds for inadmissibility and HIV tests are not required for applications anymore, it remains a factor that USCIS officers could use to deem someone likely to become a public charge in the future. For this reason, the public charge rule once again violates Section 504 of the 1973 Rehabilitation Act, which protects people living with or are regarded as having HIV/AIDS. 60 The structural stigma surrounding HIV risk in and around LGBTQ+ immigrant populations perpetuated by the public charge determination is a

56

Mark C Weber, Taking Disability Discrimination out of the Public Charge Rule, THE REGULATORY REVIEW (Oct. 29, 2021).

57 John E Pachankis et al, Anti-LGBT and Anti-Immigrant Structural Stigma: An Intersectional Analysis of Sexual Minoritiy Men’s HIV Risk When Migrating to or Within Europe, JOURNAL OF ACQUIRED IMMUNE DEFICIENCY SYNDROMES, 76, 4 (2017).

58 People Living with HIV, IMMIGRATION EQUALITY (Jan. 14, 2022), https://immigrationequality.org/legal/legal-help/people-living-with-hiv/.

59 Patricia Illingworth and Wendy E. Parmet, Keep Out!: Immigration Control as Public Health Protection, THE HEALTH OF NEWCOMERS: IMMIGRATION, HEALTH POLICY, AND THE CASE FOR GLOBAL SOLIDARITY, 27–51. NYU PRESS (2017).

60 Information and Technical Assistance on the Americans with Disabilities Act, United States Department of Justice Civil Rights Division.

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UCLA UNDERGRADUATE LAW JOURNAL public health risk within itself. Research has shown that greater structural discrimination against queer immigrants, especially gay and bisexual men, correlates with lower rates of HIV prevention such as lack of condom use and sexuality disclosure during testing. 61 This is a public health risk, as it may lead to greater spread of HIV in and among the global population. 62 Although USCIS no longer requires an HIV test in immigration applications, policies like public charge continue to perpetuate structural stigma against queerness and HIV status and are thus correlated with a lack of HIV awareness and prevention. The public charge rule purports to protect public health and resources, but in actuality, it paradoxically harms the populations it purports to protect.

Conclusion From its first appearance in the Immigration Act of 1882, the public charge determination has been a means for the American government to exclude potential immigrants they deem undesirable and unworthy of admission into the country, not only hurting immigrant communities, but the United States as a whole. In recognition of these repercussions, the U.S. Supreme Court should use the current legal challenges to the Public Charge Final Rule to abolish the public charge determination. The public charge inadmissibility rule discriminates against disabled immigrants and queer immigrants for their consideration of health and HIV status, in violation of Section 504 of the 1973 Rehabilitation Act. In order to achieve justice for queer and disabled immigrants, the Supreme Court must rule that the public charge determination can no longer be considered in decisions to grant visas, lawful permanent residency, and all other legal statuses.

61 Pachankis, 62 Id.

supra note 58.

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UCLA UNDERGRADUATE LAW JOURNAL Mischa Gureghian Hall ∗

Abortion Rights in International Law: The Inter-American Human Rights System and a Post-Roe v. Wade America ABSTRACT. The present threat of abortion bans in the United States endangers the basic rights of privacy, bodily autonomy, and non-discrimination that are enshrined in international law. The Inter-American System of Human Rights (IAS) imposes binding obligations on the U.S. to safeguard these rights. The jurisprudences of IAS organs expand on clear rights to bodily autonomy, respect for privacy and family life, and nondiscrimination within international law. The Inter-American Court applied these rights to reproductive autonomy in the 2012 case Murillo v. Costa Rica. Under the Supreme Court’s arbitrariness test, recent attempts to restrict abortion constitute arbitrary interferences in individuals’ private and family lives and result in discriminatory effects that violate international law. The most prominent of these restrictions, Texas Senate Bill 8, is being considered in Whole Woman’s Health v. Jackson; the U.S. Supreme Court is now positioned to strike down the right to abortion. In the event that the Court does act to nullify Roe v. Wade, the Inter-American System provides the only remaining effective avenue to safeguard the reproductive rights of women in the United States.

∗

Mischa Gureghian Hall is a first-year Global Studies student passionate about international humanitarian law issues. He is presently an editor at the London School of Economics Rule of Law Journal. He aims to pursue a career in human rights law in the United Kingdom, where he hopes to study after UCLA. He would like to thank Lauren for her diligent and insightful editorial contributions.

Editor: Lauren Enge is a third-year Political Science major and Professional Writing minor at UCLA. Lauren is the founder and president of Woof On Campus, a 501(c)(3) non-profit dedicated to connecting college students with rescued animals, and works as a Course Reader for Political Science courses. Lauren plans to attend law school following graduation to pursue a career in social justice.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction Few issues have so dominated the American political consciousness as abortion. From chapel pews to the halls of Congress, the moral and legal debate surrounding a woman’s right to terminate a pregnancy has enjoyed many venues, with the most historic undoubtedly being the United States Supreme Court. In 1973, the Court decided what has become one of its most controversial cases to date—Roe v. Wade. In a landmark decision, the Court safeguarded women’s right to choose, effectively constitutionalizing abortion; Roe’s precedent ignited a battle in the public and legal spheres that has persisted to the present.

Yet, today, when not a single justice who sat on the Roe Court remains, the fate of this historic decision is in question. The composition of the U.S. Supreme Court has swung towards conservatism in the past several years, with anti-Roe sentiment stirring in what many believe signals its imminent reversal. 1 With a politically dim future for Supreme Court reform 2 and its present conservative dominance seemingly here to stay, an earnest conversation about the possibility of Roe’s demise is necessary. The Court recently considered a writ of certiorari in the case of Whole Woman’s Health v. Jackson. 3 This case challenges Texas Senate Bill 8 (S.B. 8), which stands as a direct affront to its precedent in Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey. 4 Jackson presents the Court with an opportunity to functionally nullify Roe, 5 empowering states to criminalize abortion with laws mirroring S.B. 8.

In the event that Roe is overturned, the Inter-American System of Human Rights (IAS) provides an international legal avenue for the further adjudication of reproductive rights. First, by examining the structure and function of the IAS,

1 MARY ZIEGLER, ABORTION IN AMERICA: ROE V. WADE TO THE PRESENT 210 (2020).

2 Daniel Epps & Ganesh Sitaraman, The Future of Supreme Court Reform, 134 HARV. L. REV. F.

398, 398, 402 (2021); PRESIDENTIAL COMM’N ON THE SUP. CT. OF THE U.S., DRAFT FINAL REPORT 67, 83–84 (2021).

3 Whole Woman’s Health v. Jackson, 595 U.S. (2021), grant’g cert., F. Supp. 3d (5th Cir. 2021).

4 Jackson, 595 U.S. at (Sotomayor, J., dissenting) (slip op. at 1), (Roberts, C.J., dissenting) (slip op. at 1). See Roe v. Wade, 410 U.S. 113; Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). See also S.B. 8, 87th Leg., Reg. Sess. (Tex. 2021) (codified at TEX. HEALTH & SAFETY CODE § 171.201 et seq.).

5 Jackson, 595 U.S. at (Roberts, C.J., dissenting) (slip op. at 4).

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ABORTION RIGHTS IN INTERNATIONAL LAW this article shall establish that specific legal instruments of this System bind the United States. Further, it will address the jurisprudence of IAS organs in respect to reproductive issues. The application of IAS case law to S.B. 8, Jackson, and domestic abortion bans in general emphasize the significance of the IAS as a regional human rights system. Its organs’ rulings and opinions are valuable and forceful legal precedents. Based on the totality of these notions, it will be clear that international human rights law protects one’s agency over their reproductive decisions. Contemporaneous attempts to restrict such freedom in the United States clearly contradict the jurisprudence of international law.

I. The Inter-American System of Human Rights and its Organs A. Establishment of the System Regional human rights systems are international legal regimes tasked with monitoring and protecting fundamental rights and liberties within a specific geographic sphere. Despite their falsely perceived limited influence, 6 regional systems such as the IAS have provided a vital avenue for justice in the international legal system. The IAS is the human rights regime of the Organization of American States (OAS) and is regarded as the world’s secondstrongest regional human rights regime after that of Europe. 7 In 1948, twenty Latin American countries and the US established the Organization through the adoption of the OAS Charter. 8 Alongside the Charter, they adopted the American Declaration of the Rights and Duties of Man (“American Declaration”). 9 The American Declaration enumerates similar human rights as the Universal Declaration of Human Rights, despite being adopted six months 6 Gabriel M. Wilner, Reflections on Regional Human Rights Law, 25 GA J. INT’L & COMPAR. L. 407, 408–9 (1995).

7 David Forsythe, Human Rights, the United States and the Organization of American States, 13 HUM RTS. Q 66, 66 (1991). For a comparison of the Inter-American and European human rights systems, see Burns H. Weston et al., Regional Human Rights Regimes: A Comparison and Appraisal, 20 VAND. J. TRANSNAT’L L. 585 (1987).

8 Charter of the Organization of American States, Apr. 30, 1948, S. TREATY DOC. NO. 105-49, 119 U.N.T.S. 3 [hereinafter OAS Charter].

9 Ninth International Conference of American States, Final Act, Res. 30 (May 2, 1948), OEA/Ser.L/V/II.23/ doc.21 rev 6 (1979), reprinted in 43 AM. J. INT’L L. SUPP. 133 (1949) [hereinafter American Declaration].

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UCLA UNDERGRADUATE LAW JOURNAL before it. 10 In 1959, the OAS established the Inter-American Human Commission on Human Rights (IACHR) to monitor human rights concerns in the Americas.11 Ten years later, several OAS Member States adopted the American Convention on Human Rights (“American Convention”). 12 The American Convention was a landmark international treaty protecting individuals’ rights and freedoms in the Americas. The treaty delegated its enforcement to the IACHR and the newly created Inter-American Court of Human Rights (IACtHR), now the two primary organs of the IAS. B. Inter-American Commission on Human Rights The IACHR derives its normative power from both the American Convention and the OAS Charter. 13 Thus, the Commission may exercise jurisdiction over parties to the American Convention in respect to their obligations under the Convention. It may also exercise jurisdiction over OAS Member States, regarding their obligations under the OAS Charter. 14 The Commission serves as an adjudicative body within the IAS, acting on petitions submitted by individuals or organizations alleging State violations of its normative instruments.15 In addition, it may also request advisory opinions from the Inter-American Court. 16 The IACHR generally attempts to resolve disputes through a friendly settlement process. 17 However, if the parties cannot reach such an agreement, it will make findings of fault in respect to the alleged violations and issue deadline-bearing recommendations to the State if it finds violations to have occurred. 18 If the State does not are meet these deadlines, the IACHR may vote to refer the matter to the Inter-American Court.19 10

Compare id. with G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

11 Forsythe, supra note 7, at 81–83.

12 American Convention on Human

Rights, signed Nov. 22, 1969, entered into force July 18, 1978, 9 I.L.M. 101 (1970), 1144 U.N.T.S. 123 [hereinafter American Convention].

13 Id. art. 45; OAS Charter, supra note 8, art. 106.

14 Thomas Buergenthal, Human Rights in the Americas: View from the Inter-American Court, 2 CONN. J. INT’L L. 303, 306–7 (1987).

15 RULE OF PROC. OF THE INTER-AM. COMM’N ON HUM. RTS. art. 23 (2013).

16 Id. art. 24.

17 Id. art. 40.

18 Id. art. 43–44.

19 Id. art. 45.

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ABORTION RIGHTS IN INTERNATIONAL LAW Alternatively, a State may submit the case to the Court itself if it wishes to challenge the findings of the IACHR. 20 While the Inter-American Commission is integral to assessing States’ compliance with their legal obligations, actual authority to make legally binding decisions within the IAS rests with the Inter-American Court of Human Rights.

The IACtHR is the court of last resort within the IAS, exercising jurisdiction over contentious cases referred to it from the IACHR 21 and issuing legal advisory opinions. 22 The IACtHR may exercise its contentious jurisdiction only on States that have ratified the American Convention and accepted the Court’s jurisdiction. 23 Because the United States has done neither, this mode of jurisdiction is less relevant to the issue at hand.

The IACtHR’s advisory jurisdiction is far more relevant to the United States and provides it with a vital tool to examine U.S. compliance with international law on reproductive rights. While access to its jurisdiction is relatively restricted, the Court’s advisory jurisdiction is far broader. While only parties to the American Convention may participate in contentious cases, any OAS Member State or organ may request for an advisory opinion rooted in any human rights instrument with relevance to OAS Member States. 24 The Court’s advisory jurisdiction is thus not limited to instruments of the IAS; it encompasses OAS Member States’ obligations under other human rights treaties they may have entered into. 25 Further, the Court’s fundamental doctrine that “the rule most favorable to the individual must prevail,” 26 represents a significant departure from the prevailing understanding of international law as being grounded in State reciprocity. 27 In the IAS, these 20 American Convention, supra note 12, art. 61(1).

21 Id. art. 61.

22 Id. art. 64.

23 Id. art. 62.

24 Id. art. 64(1); RULE OF PROC. OF THE INTER-AM. CT. OF HUM. RTS

arts. 70–71. (2009) [hereinafter CT. RULES OF PROC.].

25 “Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion OC-1/82, Inter-Am. Ct. H.R. (ser. A) No. 1, ¶ 48 (Sept. 24, 1982).

26 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, InterAm. Ct. H.R. (ser. A.) No. 5, ¶ 52 (Nov. 13, 1985).

27 Francesco Parisi & Nita Ghei, The Role of Reciprocity in International Law, 36 CORNELL INT’L L.J. 93, 119–23 (2003).

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UCLA UNDERGRADUATE LAW JOURNAL features distinguish the IACtHR’s advisory jurisdiction from that of other transnational courts, furnishing the IACtHR with the most expansive advisory jurisdiction of any international tribunal. 28 C. The Inter-American Court on Human Rights While advisory opinions lack the legal binding force of judgments in contentious cases, they are, in a way, more valuable in the sense that the specific facts of a case do not constrain the Court. This is especially the case in regard to reproductive freedom, where the most broadly applicable precedent would have the most tangible impact. The Court is empowered to “clarify or establish basic doctrines,” offering these opinions much wider influence than judgments in contentious cases through advisory opinions. Hersch Lauterpacht, one of the 20th century’s preeminent international jurists, remarked, on advisory opinions in general, that “judicial legislation, so long as it does not assume the form of a deliberate disregard of the existing law, is a phenomenon both healthy and unavoidable.” 29 Therefore, the value of advisory opinions is a valuable tool empowering the Inter-American Court to examine the United States’ compliance with international law on reproductive rights.

II. Jurisdictional Questions in Regard to the United States As it is legally bound by the American Declaration, the U.S. falls within the contentious jurisdiction of the Inter-American Commission and the advisory jurisdiction of the Inter-American Court. While the U.S. has not ratified the American Convention, and therefore cannot be obligated by it, 30 it has ratified the OAS Charter and signed the American Declaration. While the U.S. has

28

The Effect of Reservations on the Entry Into Force of the American Convention (Arts. 74 and 75), Advisory Opinion OC-2/82, Inter-Am. Ct. H.R. (ser. A) No. 2, ¶ 29 (Sept. 24, 1983); Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83, Inter-Am. Ct. H.R. (ser. A) No. 3, ¶¶ 42–43 (Sept. 8, 1983) [hereinafter Restrictions to the Death Penalty].

29 HERSCH LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT 156 (1958).

30 See Vienna Convention on the Law of Treaties, art. 34, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969) [hereinafter VCLT].

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ABORTION RIGHTS IN INTERNATIONAL LAW opposed the notion that declarations produce binding obligations in the manner treaties do, 31 the Inter-American Court found otherwise in a 1989 advisory opinion. The Court stated that the Declaration “defines the human rights referred to in the [OAS] Charter.” The Declaration is therefore not its own instrument so much as the definition and enumeration of the human rights protected under the OAS Charter. 32 Conversely, the OAS Charter cannot be an effective instrument without the American Declaration. The Charter’s human rights provisions alone are general and vague to the point of unenforceability; they provide only general and unspecific guidance on protections. 33 The Charter thus requires the clarification that the American Declaration provides in order to be effective. 34 Accordingly, all OAS Member States—including the United States—by virtue of their ratification of the Charter, are bound by the terms of the Declaration. 35 Through its practice before international courts and arbitral tribunals, the U.S. has indicated that it views treaties as binding on States. 36 Moreover, the Vienna Convention on the Law of Treaties establishes the OAS Charter’s binding nature as a treaty. 37 While the United States is not a State Party to the Vienna Convention, much of its provisions are recognized as customary law. 38 The U.S. has accepted this 39 and that the International Court of Justice has

31 See, e.g., U.N. ESCOR, 6th Sess., Supp. 1, at 23, ¶ 3, U.N. Doc. E/600 32 Interpretation of the American Declaration of the Rights and Duties of

(1948).

Man Within the Framework of Art. 64 of the American Convention on Hum. Rts., Advisory Opinion OC-10/89, Inter-Am. Ct. H.R. (ser. A) No. 10, ¶ 45. (1989) [hereinafter Interpretation of the American Declaration].

33 Charles G. Fenwick, The Charter of the Organization of American States as the “Law of the Land”, 48 AM. J. INT’L L. 281, 282 (1953).

34 Forsythe, supra note 7, at 67–68.

35 Interpretation of the American Declaration, supra note 32, ¶ 43.

36 See, e.g., Agreement of 27 March 1946 (U.S. v. Fr.), 18 R.I.A.A. 417 (U.S./Fr. Arb. Trib.

1978); United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 I.C.J. 3 (May 24); Elettronica Sicula S.P.A. (ELSI) (U.S. v. It.), Judgment, 1989 I.C.J. 15 (July 20).

37 VCLT, supra note 30, art. 26.

38 United National Conference on the Law of Treaties, Official Records, 2d Sess. 321, 325, 337, U.N. Doc. A/CONF.39/ll/Add.l (1969).

39 See De Los Santos Mora v. New York, 524 F.3d 183, 196 n.19 (2d Cir. 2008); Fujitsu Ltd. v.

Fed. Exp. Corp., 247 F.3d 423, 433 (2d Cir. 2001); STEPHEN P. MULLIGAN, CONG. RSCH. SERV., RL32528, INTERNATIONAL LAW AND AGREEMENTS 2 n.13 (2019); CONG. RSCH. SERV., TREATIES AND OTHER INTERNATIONAL AGREEMENTS 125 n.21 (Comm. Print 2001).

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UCLA UNDERGRADUATE LAW JOURNAL affirmed as such in multiple cases.40 The OAS Charter is binding on the United States in the same respect the UN Charter is. The latter is a legal fact recognized by the U.S. Supreme Court in Oyama v. California in 1948, 41 and, indirectly by other federal courts throughout the years. 42 The OAS Charter is of the same legal character as that of the UN when examining domestic and international law. This, coupled with the United States’ leading role in the adoption of both documents, 43 establishes both as binding under U.S. law.

Following the IACtHR’s advisory opinion on the subject, the United States effectively accepted the American Declaration’s binding nature through its contentions in Ferrer-Mazorra v. United States before the Inter-American Commission. In Ferrer-Mazorra, the U.S. made no arguments against the petition’s admissibility on grounds concerning questions of the American Declaration’s binding nature as it did in previous cases. It instead meaningfully engaged with its responsibilities under the American Declaration in its arguments. 44 Irrespective of these arguments’ merits, they demonstrate the U.S. accepting its obligations under the American Declaration as binding.

Therefore, the organs of the IAS possess the jurisdiction to hear cases against the U.S. concerning reproductive rights, so long as they are rooted in the human rights protections of the American Declaration.

III. Reproductive Rights in the Inter-American System

40

See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Judgment, 1971 I.C.J. 16, ¶ 94 (June 21); Fisheries Jurisdiction (Fed. Republic of Ger. v. Ice.), Judgment, 1973 I.C.J. 49, ¶ 36 (Feb. 2); Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment, 1997 I.C.J. 7, ¶¶ 42–46, 99 (Sept. 25).

41 Oyama v. California, 332 U.S. 633 (1948), rev’g, 173 P.2d 794 (Cal. 1946).

42 See United States v. Toscanino, 500 F.2d 267, 281 (2d Cir. 1974); Filártiga v. Peña-Irala, 630 F.2d 876, 881–82 (2d Cir. 1980); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 776 (D.C. Cir. 1984) (Edwards, J., concurring); United States v. Verdugo-Urquidez, 939 F.2d 1341, 1352 (9th Cir. 1991).

43 STANLEY MEISLER, UNITED NATIONS: A HISTORY 2–3 (2011); Alberto Lleras, The Bogota Conference, 82 BULL. PAN-AM. UNION 301, 302 (1948).

44 Compare Ferrer-Mazorra v. United States, Case 9903, Inter-Am. Comm’n H.R., Report No. 51/01, ¶¶ 140–41, OEA/Ser.L/V/II.111 doc. 20 rev. (2000), with, e.g., Pinkerton v. United States, Case 9647, Inter-Am. Comm’n H.R., Res. No. 3/87, ¶ 38(d), OEA/Ser.L/V/II.71 doc. 9 rev.1 (1987).

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ABORTION RIGHTS IN INTERNATIONAL LAW The human rights obligations of the American Declaration bind the United States to recognize and defend women’s reproductive rights. These rights are well developed in the case law of the IAS and universal international law, and they find strong backing in the IAS’ normative instruments. Unlike in U.S. law, the rights within the IAS, while being contained in different instruments and further enumerated in separate articles, are all inseparably linked and must be considered within the broader context of human rights generally. 45 There are two primary cases to examine in IAS jurisprudence to understand the prevailing legal interpretations of reproductive rights in the American Convention and Declaration: Baby Boy v. United States and Murillo v. Costa Rica. These cases establish implicit protection for reproductive rights within the IAS. A. Baby Boy v. United States The first case in which an organ of the IAS dealt with the issue of abortion came relatively early in its existence. In 1977, shortly after the Roe decision, a U.S. Catholic political action group filed a petition with the IACHR arguing that an abortion performed in Boston violated the unborn fetus’ rights under Articles 1, 2, 7, and 11 of the American Declaration. 46 These articles include the rights to life, equality before the law, that of children to care and aid, and to the preservation of one’s health, respectively.47 The petitioners alleged not only that the abortion was in violation of the American Declaration, but that the U.S. Supreme Court’s decisions in Roe and Doe v. Bolton were as well. 48 The IACHR rejected the petitioners’ arguments in Baby Boy v. United States and found abortion not to violate the American Convention. 49 Here, the Commission applied a well-established international legal doctrine known as the Lotus principle. This doctrine states that an action is permitted absent a specific legal

45

Mónica F. Tinta, Justiciability of Economic, Social and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions, 29 HUM RTS. Q. 431, 435 (2007).

46 Baby Boy v. United States, Case 2141, Inter-Am. Comm’n H.R., Report No. 23/81, OEA/Ser.L/V/ll.54, doc. 9 rev. 1, ¶¶ 2–3 (1981).

47 American Declaration, supra note 9, arts, 1, 2, 7, 11.

48 Id. ¶ 3(b)–(c). See Roe, 410 U.S. 131; Doe v. Bolton, 410 U.S. 179 (1973).

49 Baby Boy, supra note 46.

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UCLA UNDERGRADUATE LAW JOURNAL prohibition of it. 50 Accordingly, given the lack of a prohibition against abortion in IAS law or customary international law, the IACHR rejected petitioners’ arguments in Baby Boy. This section now turns to argue that the American Declaration and the case law of the IAS support a right to abortion under international law.

B. Murillo v. Costa Rica In 2012, the Inter-American Court decided the case of Murillo v. Costa Rica, which set a clear precedent for the protection of reproductive rights in the IAS. The case concerned Costa Rica’s ban on in vitro fertilization (IVF). 51 The Court held that the prohibition violated individuals’ human rights. 52 Several aspects of the Murillo decision are directly applicable to the legal issue of abortion. The Court dealt with the right to private and family life and how IVF, as an intimate decision about one’s family, is an exercise of bodily autonomy that falls under these rights. In addition, the IACtHR applied the well-established legal principal of non-discrimination in examining the disproportionately negative social and health impacts reproductive restrictions have on the women and the disabled. i. Right to Privacy and Family Life Opponents of the Murillo decision have argued that Costa Rica’s IVF ban did not abridge the petitioner families’ right to form a family, as they already had either biological or adopted children. 53 This contention merely attempts to project traditional family values through the law, ignoring that the right to form a family is intrinsically intertwined with the right to privacy which itself protects

50 S.S. Lotus (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser.

51 Costa Rica’s ban on IVF originated from a 2000 ruling

A) No. 9, at 18–9 (Sept. 7). from the country’s Supreme Court. See Corte Suprema de Justicia [C.S.J.] [Supreme Court of Justice], Sala. Constitucional, marzo 15, 2000, Expediente 95-00 1734-0007-CO, Gaceta Judicial [G.J.] (No. 45) (Costa Rica).

52 See Murillo v. Costa Rica, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 257, ¶ 317 (Nov. 28, 2012). See American Convention, supra note 12, arts. 5(1), 7, 11(2), 17(2). Cf. American Declaration, supra note 9, arts. 1, 2, 5, 6.

53 See, e.g., Ligia M. De Jesus, Artavia Murillo v. Costa Rica: The Inter-American Court on Human Rights’ Promotion of Non-Existent Human Rights Obligations to Authorize Artificial Reproductive Technologies, 18 UCLA J. INT’L L. & FOREIGN AFF. 275, 289–90 (2014).

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ABORTION RIGHTS IN INTERNATIONAL LAW reproductive autonomy. 54 In Murillo, the Court cited the Convention for the Elimination of All Forms of Discrimination against Women, identifying women’s right “to decide freely and responsibly on the number and spacing of their children and to have access to the . . . means that enable them to exercise these rights.” 55 The Court invoked the findings of the Committee on the Elimination of All Forms of Discrimination against Women, stating that this right is violated when the “means by which a woman can exercise the right to control her fertility are restricted.” 56 The right to privacy assures that social prejudices cannot become considerations in a matter of law. Concurrently, a woman’s bodily autonomy extends to the question of abortion and is defended similarly by the right to privacy. The Court has accepted the protection of a woman’s autonomy over choices on forming a family. Abortion is without a doubt such a mean. 57 ii. Principal of Non-Discrimination The discriminatory effects of bans concerning reproductive health were a prime consideration of the Court in Murillo. The Court stated that Costa Rica’s ban “implied that IVF would no longer be practiced in Costa Rica,” while ignoring the fact that individuals would still pursue IVF, merely by other means. 58 Accordingly, the Court found that blocking off an individual's access to IVF improperly interferes with their private decision making in regards to their family. 59 The IACtHR further stated that the “decision of the couples . . . to have biological children is within the most intimate sphere of their private and family life . . . [and that how] couples arrive at that decision is part of a person’s autonomy and identity.” 60 The U.S. Supreme Court affirmed as such in

54 Murillo, supra note 52, ¶¶ 144, 55 Convention on the Elimination

146. of All Forms of Discrimination Against Women, art. 16(1)(e), Dec. 18, 1979, 1249 U.N.T.S. 13. See also art. 12.

56 Murillo, supra note 52, ¶ 146 (citing U.N. Comm. on the Elimination of Discrim. Against Women, General Recommendation No. 24, ¶¶ 21, 31(b), U.N. Doc. A/54/38/Rev.1 (1999)).

57 U.N. Comm. on the Elimination of Discrim. Against Women, General Recommendation No. 35, ¶ 18, U.N. Doc. CEDAW/C/GC/35 (2017) [hereinafter General Recommendation No. 35].

58 Id. ¶ 161.

59 Ibid.

60 Id. ¶ 76.

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UCLA UNDERGRADUATE LAW JOURNAL Griswold v. Connecticut where it struck down state restrictions on contraceptive devices.61 Moreover, this conclusion is similar to that of the Roe Court, which stated that the right to privacy within U.S. constitutional law protects a series of rights “implicit in the concept of ordered liberty.” 62 The Supreme Court mirrored the IACtHR in stating that the right to privacy enjoyed more expansive application in the contexts of marriage, procreation, contraception, and family relationships. 63 The Inter-American Court in Murillo further asserted the indirect discriminatory effect of an IVF ban, employing analysis easily replicable regarding abortion. The IACtHR affirmed the peremptory nature of the normative prohibition against discrimination in international law, 64 as it has done previously in other cases. 65 Peremptory status establishes nondiscrimination as a norm from which no degradation is permitted and can only be superseded by another norm of this same character. In Murillo, the Court found indirect discrimination on the grounds of disability, in that the Costa Rican ban on IVF discriminated against infertile people. 66 The Court additionally found discrimination on the grounds of gender, finding that a Costa Rican court discriminatorily gave “absolute prevalence to the protection of the fertilized eggs without considering the situation of disability of some of the women.” 67 Furthermore, while both men and women experience infertility, the process of IVF is inextricably linked to women’s bodies, resulting in a ban’s disproportionately negative effect on women. 68 The Roe Court observed this as 61 See Griswold v. Connecticut, 381 U.S. 479 (1965).

62 Roe v. Wade, 410 U.S. 113, 152 (1973) (quoting Palko

v. Connecticut, 302 U.S. 319, 325 (1937)).

63 Id. at 152–53 (citing Loving v. Virginia, 388 U.S. 1, 12 (1967); Skinner v. Oklahoma, 316 U.S. 535, 541–42 (1942); id at 460, 463–65 (White, J., concurring); Eisenstadt v. Baird, 405 U.S. 438, 453–54 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).

64 Murillo, supra note 52, ¶ 286.

65 See Yean v. Dom. Rep., Preliminary Objections, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H.R. (ser. C) No. 41, ¶ 141 (Sept. 8, 2005); Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18, ¶¶ 88, 101 (Sept. 17, 2003) [hereinafter Juridical Condition of Undocumented Migrants]. Cf. U.N. Hum. Rts. Comm., Althammer v. Austria, Communication No. 998/2001, ¶ 10.2, U.N. Doc. CCPR/C/78/D/998/2001 (2003); U.N. Comm. on the Elimination of Racial Discrim., L.R. v.

Slovk., Communication No. 31/2003, ¶ 10.4.4, U.N. Doc. CERD/C/66/D/31/2003 (2005).

66 Murillo, supra note 52, ¶¶ 288–93.

67 Id. ¶ 297.

68 Id. ¶ 299.

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ABORTION RIGHTS IN INTERNATIONAL LAW well, identifying a variety of negative social consequence abortion restrictions expose women to. 69 All these adverse effects mentioned are relevant to Jackson as S.B. 8—the ban in question—provides such stringent and blanket restrictions for women that discriminatory consequences are virtually unavoidable.

V. Applying Inter-American Jurisprudence to Domestic Abortion Laws A. Case Before the Commission Considering the reproductive protections within the IAS, it must now be addressed how international law applies to present abortion bans in the United States, namely, S.B. 8. As an OAS Member State, the U.S. could be subject to a complaint made to the IACH by individuals who have been denied abortion access or organizations filing on their behalf. The following divisions of this subsection will address S.B. 8’s violation of the rights to autonomy, nondiscrimination, privacy, and the protection of family life. It will also layout the legal rationale for a potential case against the U.S. before the IACHR. i. Autonomy and Non-Discrimination Perhaps the most fundamental rights restrictive abortion laws violate are those protecting bodily autonomy and prohibiting discrimination. Article 1 of the American Declaration lays out the right to “life, liberty and the security of his person.” 70 Personal integrity within this right is fundamentally linked to reproductive freedom, with decisions surrounding pregnancy constituting some of the most intimate choices one can make about their own body. The IACtHR has therefore established a link “between personal autonomy, reproductive freedom, and physical . . . integrity.” 71 The Supreme Court concurred in Casey, finding women’s agency over their lives to be dependent on their “ability to control their reproductive lives.” 72Article 2 of the American Declaration

69 Roe v. Wade, 410 U.S. 113, 153 (1973).

70 American Declaration, supra note 9, art. 1.

71 Murillo, supra note 52, ¶ 147.

72 Planned Parenthood of Se. Pa. v. Casey, 505

U.S. 833, 856 (1992).

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UCLA UNDERGRADUATE LAW JOURNAL establishes equality before the law, a protection shared by domestic constitutional law. 73 Non-discrimination is furthermore a peremptory norm of international law—a category of legal postulates which no other law can supersede.74 The IACtHR and other bodies have held that a measure need not have de jure discriminatory provisions and may still be discriminatory towards a group if an otherwise neutral measure has particularly negative consequences for a particular group of people. 75 The U.S. Supreme Court also adopted this reasoning in Casey. 76 The effect of abortion bans further extends to discrimination on the basis of pre-existing medical conditions and economic status. A staggering 70% of maternal deaths are caused indirectly by pre-existing conditions which are exacerbated during pregnancy. 77 By forcing individuals with pre-existing conditions to carry an unwanted pregnancy to term, despite their highly elevated risk, a prohibition against abortion would discriminate against them on the basis of such conditions. UN treaty monitoring bodies have indicated the existence of a right to abortion for people at increased risk of maternal death or adverse health consequences due to pregnancy. In 2005, the UN Human Rights Committee, found in K.L. v. Peru that Peru’s refusal to grant a legal abortion to the complainant, whose fetus was suffering from a condition that severely jeopardized the mother’s health, violated the complainant human rights. 78 This reasoning was reiterated by the Human Rights Committee in 2018 79 and by other UN treaty monitoring bodies. 80 In Murilo, the IACtHR specifically cited the UN

73 American Declaration, supra note 9, art. 2; U.S. CONST. amend. XIV § 1.

74 Juridical Condition of Undocumented Migrants, supra note 65, ¶ 101.

75 Dorzema v. Dom. Rep., Merits, Reparations and Costs, Judgment, Inter-Am.

Ct. H.R. (ser. C) No. 251, ¶ 234 (Oct. 24, 2012).

76 See Casey, 505 U.S. at 896–97.

77 Véronique Filippi et al., Levels and Causes of Maternal Mortality and Morbidity, in 2 DISEASE CONTROL PRIORITIES 51, 54 (Robert E. Black et al. eds., 3d ed. 2016).

78 U.N. Hum. Rts. Comm., K.L. v. Peru, Communication No. 1153/2003, ¶¶ 6.1–7, U.N. Doc. CCPR/C/85/D/1153/2003 (2005). See International Covenant on Civil and Political Rights, arts. 2, 7, 17, 24, Dec. 16, 1966, 999 U.N.T.S. 171.

79 See U.N. Hum. Rts. Comm., General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, ¶ 8, U.N. Doc. CCPR/C/GC/36 (2018).

80 See, e.g., U.N. Comm. on the Elimination of Discrim. Against Women, L.C. v. Peru, Communication No. 22/2009, ¶ 8.15, U.N. Doc. CEDAW/C/50/D/22/2009 (2011); U.N. Comm. Against Torture, Concluding Observations on Bolivia, ¶ 23, U.N. Doc. CAT/C/BOL/CO/2 (2013).

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ABORTION RIGHTS IN INTERNATIONAL LAW Committee on the Elimination of Discrimination Against Women’s 2011 case L.C. v. Peru where it found that “precedence [must] be given to protecting the rights of pregnant women over the interest of protecting the life in formation.” 81 The UN Committee on the Elimination of Discrimination Against Women went further in 2017. It articulated the reasoning of L.C. v. Peru definitively in declaring that denying women abortion access, and thereby forcing them to continue a pregnancy against their will, violates their sexual and reproductive rights. 82 It should also be noted that prohibitions on abortion disproportionately affect women in poverty. The UN Human Rights Council’s working group on discrimination against women has found that in places “where induced termination of pregnancy is restricted by law and/or otherwise unavailable, safe termination of pregnancy is a privilege of the rich.” On the other hand, “women with limited resources have little choice but to resort to unsafe providers and practices.” 83 Moreover, the UN Special Rapporteur on Extreme Poverty and Human Rights stated that the “lack of access to abortion services traps many women in cycles of poverty.” 84 This ‘trap’ the Special Rapporteur speaks of can be visualized through the fact that abortion bans fail to reduce abortion rates.

This was expanded on by amicus curiae in Dobbs v. Jackson Women’s Health Organization, another recent abortion-related case at the U.S. Supreme Court: In country after country, abortion bans have not led to a decrease in the number of abortions, but rather an increase in the number of unsafe abortions— especially affecting people of limited means. These risks are neither theoretical nor conjectural. In countries across the world, including Romania, South Africa, El Salvador, and Ecuador, there is a statistical relationship between the imposition of restrictive abortion legislation and increases in maternal mortality and morbidity. 85 81 Murillo, supra note 52, ¶ 227 (citing L.C. v. Peru, supra note 80).

82 General Recommendation No. 35, supra note 57, ¶ 18.

83 U.N. Hum. Rts. Council, Rep. of the Working Group on the Issue of

Discrimination Against Women in Law and in Practice ¶ 53, U.N. Doc. A/HRC/38/46 (2018).

84 U.N. Hum. Rts. Council, Rep. of the Special Rapporteur on Extreme Poverty and Human Rights on His Mission to the United States of America, ¶ 56, U.N. Doc. A/HRC/38/33/Add.1 (2018).

85 Brief of Amici Curiae Hum. Rts. Watch et al. in Support of Respondents at 3, Dobbs v.

Jackson Women’s Health Org., No. 19-1392 (U.S. argued Dec. 1, 2021).

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UCLA UNDERGRADUATE LAW JOURNAL Comparative studies of abortion in countries that have placed heavy restrictions on the procedure and those where it is broadly legal provide “no evidence that abortion rates [are] lower in settings where abortion [is] restricted.” 86 This points to the fact that abortion’s legal status does not play a role in its occurrence. Instead, its legal status can substantially dictate the safety of the procedure, especially those who lack adequate access to healthcare and financial resources. Abortion restrictions thus result in disproportionately negative consequences for people in poverty and without access to safe medical technology and advanced healthcare systems.

Modern medical developments have made clinical abortions safe and effective procedures, 87 further accentuating the heightened health risks for individuals who have legally restricted access to such procedures. Lack of access to safe abortions leads to about 22,000 maternal deaths annually, as of 2017. 88 This is compared to 47,000 such deaths in 2008, 89 with this decline being attributable primarily to increased practical and legal access to safe abortion around the world. 90 A recent study has estimated that in the hypothetical event of a total ban on abortions, the U.S. could see a 21% increase in its maternal mortality rate. 91 Where abortion is substantially restricted, economic disadvantage negatively correlates to the safety of available abortion options. 92 This situation—in which wealthier individuals enjoy greater access to the rights of privacy and family life than poorer individuals do—constitutes a violation of Article 2 of the American Declaration.

86

Jonathan Bearak et al., Unintended Pregnancy and Abortion by Income, Region, and the Legal Status of Abortion: Estimates From a Comprehensive Model for 1990–2019, 8 LANCET GLOB. HEALTH 1152, 1159 (2020) (finding this rate to be about 40 per 1,000 (40%) in women aged 19– 44).

87 WORLD HEALTH ORG., SAFE ABORTION: TECHNICAL AND POLICY GUIDANCE FOR HEALTH SYSTEMS 17 (2d ed. 2012).

88 SUSHEELA SINGH ET AL., ABORTION WORLDWIDE 2017: UNEVEN PROGRESS AND UNEQUAL ACCESS 33 (2017).

89 WORLD HEALTH ORG., GLOBAL AND REGIONAL ESTIMATES OF THE INCIDENCE OF UNSAFE ABORTION AND ASSOCIATED MORTALITY IN 2008, at 27 (6th ed. 2011).

90 SINGH ET AL., supra note 88, at 32–33.

91 Amanda J. Stevenson, The Pregnancy-Related Mortality Impact of a Total Abortion Ban in the United States: A Research Note on Increased Deaths Due to Remaining Pregnant, 58 DEMOGRAPHY 2019, 2023 (2021).

92 Susheela Singh, Global Consequences of Unsafe Abortion, 6 WOMEN’S HEALTH 849 (2010); Christine Dehlendorf et al., Disparities in Abortion Rates: A Public Health Approach, 103 AM. J. PUB. HEALTH 1772 (2013).

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ABORTION RIGHTS IN INTERNATIONAL LAW ii. Privacy and Family Life The relevant rights within the IAS most closely resembling those employed by the Roe Court are those to privacy and family life. Articles 5 and 6 of the American Declaration, providing for the right to respect for private and family life and the right to start a family, respectively, are interwoven. 93 The U.S. Supreme Court has affirmed the protections of Article 6 within its own case law, finding that “the Constitution protects the sanctity of the family” from “invasions on the part of the government.” 94 Noting the previously mentioned point that abortion bans drive women towards unsafe abortion procedures, restrictive prohibitions on abortion deprive women of the right to access medical technology needed to maintain reproductive autonomy. The IACtHR found that the right to reproductive autonomy is closely linked to the right to private life, including “the right to have access to the medical technology necessary to exercise this right [to reproductive autonomy].” 95 In interfering in women’s choices on the exercise of this right to autonomy, abortion bans such as S.B. 8 restrict individuals’ privacy in choices regarding family life.

The right to privacy ensures families are free from the arbitrary influence of both the government and third parties. In Escher v. Brazil and Donoso v. Panama, the IACtHR constructed a test to determine the arbitrariness of a measure under the legal criteria of legality, legitimate aim, suitability, necessity, and proportionality. 96 If a measure fails to meet even one of these criteria, it may constitute arbitrary interference with individual privacy.

For the purpose of S.B. 8, it is only necessary to examine the question of legality. Texas S.B. 8 expressly prohibits enforcement of its provisions by Texas state officials such as the Governor and police, 97 instead imposing a unique

93 American Declaration, supra note 9, arts. 5, 6.

94 Moore v. City of East Cleveland, 431 U.S. 494,

503 (1977) (plurality opinion by Powell, J.); Boyd v. United States, 116 U.S. 616, 630 (1886). Cf. Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1928).

95 Murillo, supra note 52, ¶ 146.

96 Escher v. Braz., Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 199, ¶ 129 (July 6, 2009); Donoso v. Panama, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 193, ¶ 76 (Jan. 27, 2009).

97 TEX. HEALTH & SAFETY CODE § 171.207(a).

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UCLA UNDERGRADUATE LAW JOURNAL enforcement mechanism that functionally deputizes lay citizens. This feature empowers any citizen to sue anyone who performs, assists, or intends to assist an abortion after 6-weeks of pregnancy for at least $10,000 in damages.98 In Escher, the IACtHR held that in order to satisfy the requirement of legality, the “conditions and general circumstances under which a restriction of a given human right is authorized must be clearly established by law.” 99 S.B. 8 was passed in a manner consistent with the Texas Constitution; 100 however, its provisions fail to conform to the state and federal Constitutions. S.B. 8 confers standing on uninjured parties through granting “any person” the right to sue another for an illegal abortion. 101 This provision of standing to uninjured parties violates Article III of the U.S. Constitution and the open-courts provision of the Texas Constitution. 102 By virtue of the plaintiff’s uninjured nature, the award of up to $10,000 that S.B. 8 prescribes them 103 is punitive on the defendant, not compensatory for plaintiffs. This structure deprives defendants of due process under the Fourteenth Amendment.104 S.B. 8’s delegation of enforcement powers to private individuals ascribes to these individuals powers to take actions reserved for the executive under the Texas Constitution. 105 This mechanism means that the actions of these individuals fall outside the scope of the state judiciary’s powers of judicial review, violating the separation of powers clause of the Texas Constitution. 106 Moreover, the design of S.B. 8 is specifically constructed to nullify the ability of the federal judiciary to enforce its own rulings, namely that of Roe and Casey. 107

98 99

Id. § 171.208(a).

Escher, supra note 96, ¶ 130; The Word “Laws” in Art. 30 of the Am. Convention on Hum. Rts., Advisory Opinion OC-6/86, Inter-Am. Ct. H.R. (ser. A.) No. 6, ¶¶ 27, 32 (May 9, 1986) [hereinafter The Word “Laws”].

100 TEX. CONST. arts. III, § 29 et seq., IV, § 14.

101 See TEX. HEALTH & SAFETY CODE § 171.208.

102 Van Stean v. Texas Right to Life, No. D-1-GN-21-004179, slip op. at 30, 46 (98th Dist. Ct., Travis County, Tex., Aug. 2021); U.S. CONST. art. III, § 2, cl. 1; TEX. CONST. art. I, § 13.

103 TEX. HEALTH & SAFETY CODE § 171.208.

104 Van Stean, slip op. at 36, 46 (citing State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003)); U.S. CONST. art. XIV, § 1.

105 TEX. CONST art. IV, § 10 (providing that the Governor shall “cause the laws to be faithfully executed”).

106 Van Stean, slip op. at 43–44, 46; TEX. CONST arts. II, § 1.

107 Whole Women’s Health v. Jackson, 595 U.S., (2021) (Roberts, C.J., dissenting) (slip op. at 4).

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ABORTION RIGHTS IN INTERNATIONAL LAW This clearly violates the principle of judicial review, which prescribes that “it is emphatically the province and duty of the judicial department to say what the law is.” 108 The U.S. Supreme Court has held that “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.” 109 As such, S.B. 8 does not directly challenge the Roe precedent but instead aims to shield itself from its own unconstitutionality “by raising seemingly novel procedural issues” as means of “manipulation” to frustrate and impede judicial review. 110 Furthermore, S.B. 8’s enforcement mechanism fails the Inter-American Court’s legitimacy test. In 2009, the Court found in Escher that a State government allowing for the dissemination of secretly recorded tapes to the media met the threshold for arbitrariness, failing to satisfy the qualification of legality. 111 Likewise, Roe establishes that the right to privacy “encompass[es] a woman's decision whether or not to terminate her pregnancy.” 112 Similarly to Escher, S.B. 8 imposes a legal reality in which one person’s otherwise private affairs become the business of the public without due discretion. 113 For these reasons, S.B. 8 fails to satisfy the qualification of legality and can be considered an arbitrary interference with the right to privacy and family life.

B. Requesting an Advisory Opinion from the Court Alternatively, to action before the Inter-American Commission, there exists an avenue for the issue of abortion rights to instead be brought to the InterAmerican Court’s attention in the form of a request for an advisory opinion. The IACtHR possesses advisory jurisdiction with respect to the American Declaration and may be called either to specifically address U.S. compliance 108 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added).

109 United States v. Peters, 9 (5 Cranch) U.S. 115, 136 (1809).

110 United States v. Texas, 595 U. S., (2021) (Sotomayor, J., dissenting) (slip op.

at 7); In re Whole Woman’s Health, 595 U. S., (2022) (Sotomayor, J., dissenting) (slip op. at 1). See also Brief of Petitioner in Opposition to Motion for a Stay Pending Appeal 4–5, United States v.

Texas, No. 21-50949 (5th Cir. decided Oct. 14, 2021).

111 Escher, supra note 96, ¶¶ 163–64. See also Donso, supra note 96, ¶¶ 82–83.

112 Roe, 410 U.S. at 153.

113 Escher, supra note 96, ¶¶ 161–62. See also Donso, supra note 96, ¶ 80.

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UCLA UNDERGRADUATE LAW JOURNAL with the Declaration concerning reproductive rights or to interpret these rights and obligations in general. Only the U.S. could request an advisory opinion on its legal obligations however, a request instead pertaining to international law generally could be requested by any OAS Member State or the IACHR. 114 This second type of opinion would be preferable to one singularly addressing the U.S., as it would set a more extensive and valuable precedent.115 This is the primary advantage of advisory opinions—their application is broad across international law, and they can therefore be instrumental in advancing norms and customary international law.

But advisory opinions are not without their limits. Accordingly, the Court has made determinations on these limits, the most relevant being distinguishing its advisory jurisdiction from its contentious jurisdiction. The Court has found its advisory jurisdiction to be appropriate even in issues that are simultaneously being considered by the IACHR. 116 However, the Court may issue advisory opinions only so long as it would not interfere with proceedings before the Commission in a manner that prevents victims of alleged violations from meaningfully participating in proceedings. 117 Moreover, the Court has clearly stated that dismissing a request for an advisory opinion purely because a controversy exists around it would be rob its advisory jurisdiction of its intended utility. 118 Because the IACtHR issuing an advisory opinion on abortion rights would not unfairly affect the rights of those harmed by abortion bans in the U.S., an advisory opinion would be admissible in this case.

While advisory opinions are not necessarily binding, it is not to say they are without any legal force; at their core, they interpret States’ obligations under binding treaties. Judge John Moore of the Permanent Court of International Justice remarked:

114 Compare CT. RULES OF PROC., supra note 24, art. 72 with id. art. 71.

115 The IACtHR has found its advisory jurisdiction to be “as extensive

as may be required to safeguard human rights.” Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (ser. A) No. 4, ¶ 25 (Jan. 19, 1984).

116 See Restrictions to the Death Penalty, supra note 28.

117 Compatibility of Draft Legislation with Art. 8.2.h of the American Convention on Human Rights, Advisory Opinion OC-12/91, Inter-Am. Ct. H.R. (ser. A) No. 12, ¶ 28 (Dec. 6, 1991).

118 Id. ¶ 43.

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ABORTION RIGHTS IN INTERNATIONAL LAW

“It is evident that, to impose upon a court of justice the duty of giving advice, which those requesting it were wholly at liberty to reject, would reduce the court to a position inferior to that of a tribunal of conciliation, which . . . would presumptively be endowed with power to bind them to respect and to carry out a solution to which they had once formally agreed.” 119

This logic is sound, for a court that can offer mere suggestions is of little value to society. To this point, the IACtHR has found its two jurisdictions to be grounded in the same fundamental principles. To this point, it has held its advisory system to be a parallel to its contentious jurisdiction and merely an “alternate judicial method.” 120 An advisory opinion addressing abortion rights in the IAS would be equally as valuable as a determination by the IACtHR in a contentious case on the matter.

IV. Impact of the Inter-American System of Human Rights A. Enforceability International law is binding on the United States, 121 despite long being challenged on the basis of its enforceability. Classical legal positivist thinkers have advanced such challenges, defining laws solely as the commands of a sovereign backed by the threat of sanctions, 122 a notion dispelled by most recent thinkers. 123 The question of how a legal system can coerce the compliance of States when there is no entity with legal authority above that of the State is no less pressing of an issue in domestic constitutional law than it in international law. Yet very little of international legal scholarship’s fixation with enforceability has manifested in the field of constitutional law. 124 In both, the 119

Preparation of the Rules of the Court, 1924 P.C.I.J. (ser. D) No. 2, annex 58A, at 383 (memorandum by Moore, J.).

Restrictions to the Death Penalty, supra note 28, ¶ 43. Cf. Roberto Ago, “Binding” Advisory Opinions of the International Court of Justice, 85 AM. J. INT’L L. 439, 441 (1991).

121 U.S. CONST. art. VI, § 2; The Paquete Habana, 175 U.S. 677, 700 (1900).

122 See THOMAS HOBBES, LEVIATHAN 109, 115–117 (A.R. Waller ed., 1935) (1651); 1 JOHN AUSTIN, LECTURES ON JURISPRUDENCE 121 (Robert Campbell ed., 1875). This definition of law would inherently exclude international law.

123 1 LASSA OPPENHEIM, INTERNATIONAL LAW: A TREATISE 4–7 (2d ed. 1912); HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 313–316 (3d ed. 2003) (1959); H. L. A. HART, THE CONCEPT OF LAW 84, 199 (3d ed. 2012) (1961).

124 Jack A. Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 HARV. L. REV. 1791, 1823 (2009).

120

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UCLA UNDERGRADUATE LAW JOURNAL problem boils down to “[w]hy would people with money and guns ever submit to people armed only with gavels?” 125 But as renowned German jurist Lassa Oppenheim pointed out, international law is not law imposed on States, but law made between States. 126 This point has further been affirmed by the U.S. Supreme Court, international tribunals, other national courts, and the Vienna Convention on the Law of Treaties. 127 Accordingly, Oppenheim argued that all law is rooted in an unwritten collective consent.128 In international law, this can be practically observed through the theory that States “may be willing to sacrifice their short-term interests in exchange for the broader or longer-term benefits of cooperating through [rules].” 129 International law can therefore be understood as “codified expectations that countries observe for their mutual benefit.” 130 Such an understanding necessitates not only an active U.S. participation in international law but an acceptance of international rulings, such as those of the IAS. This can be credited for the fact that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” 131 B. Legal Influence The most potent benefits of international legal regimes lie in their ability to influence the development of law generally. In no legal system is that as true as the IAS, which has consistently been on the forefront of international norm creation; its case law often steering broader discourse around human rights. IAS

125 Matthew C. Stephenson, “When the Devil Turns…”: The Political Foundations of Independent Judicial Review, 32 J. LEGAL STUD. 59, 60 (2003). Cf. HART, supra note 123, at 214; LOUIS HENKIN, HOW NATIONS BEHAVE 24 (2d ed. 1979).

126 OPPENHEIM, supra note 123, at 5. Cf. Quincy Wright, Enforcement of International Law, 38 ASIL PROC. 77 (1944).

127 See The Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 116 (1812); S.S. Wimbledon (U.K. v. Ger.), Judgment, 1923 P.C.I.J. (ser. A.) No. 1, ¶¶ 34–35 (Aug. 17); S.S. Lotus, supra note 50, at 18; W. Rand Cent. Gold Mining Co. v. The King, [1905] 2 K.B. 391 (K.B.) 401 (Lord Alverstone, C.J.) (UK); VCLT, supra note 30, art. 26.

128 OPPENHEIM, supra note 123, at 7–8.

129 Goldsmith & Levinson, supra note 124, at 1835.

130 David S. Law & Mila Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 CALIF. L. REV. 1163, 1177 (2011) (citing JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 13, 32–43 (2005)).

131 HENKIN, supra note 125, at 47.

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ABORTION RIGHTS IN INTERNATIONAL LAW jurisprudence has dealt extensively with women’s rights, 132 with the InterAmerican Commission being the first international adjudicative body to classify rape as torture under international law. 133 The Inter-American Court has been a trailblazer of international prohibitions of domestic immunity laws for human rights violators. 134 In addition, it has played a crucial role in the clarification of law surrounding responsibility for human rights abuses, including norms on how State organs 135 and private parties 136 bear responsibility for such abuses. The Court also addressed the right of victims to reparations for human rights abuses before any other international juridical body. 137 More relevant is the influence IAS decisions have had in domestic courts. 138 Judge Sergio Ramírez of the Inter-American Court has remarked that one the most valuable features of IAS decisions is that they are usually rooted in international human rights that correspond to civil rights afforded in national constitutions. 139 This makes for a streamlined implementation of IAS case law into domestic law. In 2003, the IACtHR issued an advisory opinion finding that denying backpay from undocumented workers who are wrongfully terminated, a practice endorsed by the U.S. Supreme Court a year prior in Hoffman Plastic

132

See, e.g., Miguel Castro-Castro Prison v. Peru, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 160 (2006); Cantú v. Mex., Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 216 (Aug. 31, 2010); Yarce v. Col., Inter-Am. Ct. H.R. (ser. C) No. 325 (Nov. 22, 2016).

133 See De Mejía v. Peru, Case 10.970, Inter-Am. Comm’n H.R, Report No. 5/96, OEA/Ser.L/V/II.91 doc. 7 (1996). Cf. Prosecutor v. Delic, Case No. IT-04-83-T, Judgment, ¶¶ 495–96 (Int’l Crim. Trib. former Yugoslavia Nov. 16, 1998).

134 See Aguirre v. Peru, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 75 (Mar. 14, 2001).

Cf. Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction (May 31, 2004).

135 See Rodríguez v. Hond., Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶¶ 163–64 (July 29, 1988). Cf. G.A. Res. 56/83, annex, ch. 2, U.N. GAOR, 56th Sess., 85th plen. mtg. at 9, U.N. Doc. A/56/PV.85 (Dec. 12, 2001).

136 See Rodríguez, supra note 135, ¶ 166. Cf. S.C. Res. 1674, U.N. Doc. S/RES/1674 (Apr. 28, 2006).

137 See Rodríguez, Compensatory Damages, Inter-Am. Ct. H.R. (ser. C) No. 7, ¶ 25 (July 21, 1989); Aloeboetoe v. Suriname, Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 15, ¶ 5– 6 (Sept. 10, 1993). Cf. Prosecutor v. Katanga, Case No. ICC-01/04-01/07-3728, Order for Reparations (Mar. 24, 2017); Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06-2659, Order for Reparations (March 8, 2021).

138 See., e.g., Corte Suprema de Justicia [C.S.J.] [Supreme Court of Justice], Simón s/ Privación Ilegítima de la Libertad, junio 14, 2005, Causa No. 17.768, ¶ 24, reprinted in I.L.D.C. 579 (AR 2005) (Arg.).

139 Sergio G, Ramírez, The Relationship between Inter-American Jurisdiction and States (National Systems): Some Pertinent Questions, 5 NORTE DAME J. INT’L & COMPAR. L. 115, 127–130 (2015).

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UCLA UNDERGRADUATE LAW JOURNAL Compounds, Inc. v. NLRB, 140 violates international law. 141 A second case of note in the U.S. is Roper v. Simmons, where, in 2005, the U.S. Supreme Court found extending the death penalty to minors to be unconstitutional. 142 Several amici curiae in Roper invoked IAS case law 143 which already established the illegality of executing juveniles in international law. 144 The Roper Court cited these amici curiae in its opinion, 145 marking a clear influence of the IAS in the U.S. legal system. With this past precedent, it is clear that any determination by IAS organs on reproductive rights would have tangible legal effects within domestic law.

Conclusion International law reflects the same idea at the center of American law— democracy. The development of international law is a process that represents the development of global democracy and its ideals as core values of society. 146 A true expression of the United States’ sovereignty is not the abandonment of its role in the international community, but rather active participation in it. 147 Roe represents an era where American constitutional precedent spearheaded the development of human rights norms internationally. 148 However, the United States is losing the constitutional hegemony it once enjoyed, with countries 140

See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), rev’g, 237 F. 3d 639 (D.C. Cir. 2001).

See Juridical Condition of Undocumented Migrants, supra note 65. See also Zumaya v. United States, Case 12.834, Inter-Am. Comm’n H.R., Report No. 50/16, OEA/Ser.L/V/II.159, doc. 59 (2016).

142 Roper v. Simmons, 543 U.S. 551 (2005). See U.S. CONST. amend. VIII. 143 See Domingues v. United States, Case 12.285, Inter-Am. Comm’n H.R., Report No. 62/62, OEA/Ser.L/V/II.117 doc. 7 rev.1 (2002).

144 See Brief for the Hum. Rts. Comm. of the Bar of Eng. & Wales et al. as Amici Curiae in Support of Respondent at 12–13, 17, Roper v. Simmons, 543 U.S. 551 (No. 03-633), 2004 WL 1628523; Brief of Amici Curiae Eur. Union et al. as Amici Curiae in Support of Respondent at 19–20, Roper v. Simmons, 543 U.S. 551 (No. 03-633), 2004 WL 1619203; Brief for President James E. Carter, Jr., et al. as Amici Curiae in Support of Respondent at 4, 19, Roper v. Simmons, 543 U.S. 551 (No. 03-633), 2004 WL 1636446 (brief of Nobel laureates).

145 See Roper, 543 U.S. at 573–75.

146 Stephen G. Breyer, Keynote Address, 97 ASIL PROC. 265, 268 (2003).

147 ABRAM CHAYES & ANTONIA H. CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 27 (1995).

148 Louis Henkin, Rights: American and Human, 79 COLUM. L. REV 405, 407 (1979); Richard B. Lillich, The United States Constitution and International Human Rights Law, 3 HARV. HUM. RTS. J. 53, 55–56 (1990).

141

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ABORTION RIGHTS IN INTERNATIONAL LAW increasingly looking at our Constitution not as a model of constitutionalism but as a warning of its flaws. 149 This decline in influence can be attributed to the U.S. falling behind the global development of human rights, 150 seeing itself not as a citizen of the global order, but as an exceptional bastion of values it often fails to live up to. The U.S. often believes it is exempt from the evolving moral character of the world, its laws increasingly failing to afford “decent respect to the opinions of mankind.” 151 Reproductive rights represent an issue where the U.S. fails to bring itself in sync with international legal developments. The jurisprudences of the IACHR and IACtHR show clear protection of abortion rights within the IAS and its instruments. With the prospective unwillingness of the Supreme Court to enforce its Roe precedent in Jackson, the case of reproductive rights in America must be brought before the organs of the IAS. Beyond the United States, establishing women’s right to reproductive autonomy within international jurisprudence would be a landmark achievement in the development of human rights and the fight for gender equality around the world. In Casey, Justice Blackburn described women’s reproductive freedom as a “single flickering flame” and issued the warning that, at the time, only the vote of a single justice was required to “extinguish the light.” 152 In a country where a post-Roe and post-Casey reality seems to be inching closer and closer, the IAS increasingly appears to be the nation’s last hope in keeping that light alive.

149

David S. Law & Mila Versteeg, The Declining Influence of the United States Constitution, 87 N.Y.U. L. REV. 762, 766–67 (2012); Sujit Choudhry, The Lochner Era and Comparative Constitutionalism, 2 INT’L J. CONST. L. 1, 15–24 (2004); Heinz Klug, Model and Anti-Model: The United States Constitution and the “Rise of World Constitutionalism”, 2000 WIS. L. REV. 597, 605– 6 (2000).

150 Law & Versteeg, supra note 149, at 766–67.

151 Knight v. Florida, 528 U.S. 990, 997 (1999) (Breyer, J. dissenting).

152 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 922–23 (1992) (Blackmun, J., concurring).

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UCLA UNDERGRADUATE LAW JOURNAL Tony Maquiling*

Conventions Without Constitution: How Humanitarian Law and the Laws of Armed Conflict Falter in Non-International Armed Conflict ABSTRACT. Non-international armed conflicts (NIACs) are a new form of conflict between state and non-state groups, earning them special designations in both character and international law. These conflicts have become more common and harmful to non-combatants since the second half of the 20th century. International humanitarian law (IHL) and the laws of armed conflict (LOAC), however, have not changed to adequately regulate NIACs. As a result, states engage in conflict without adhering to humanitarian standards and the rules of war with regards to NIACs. Even when IHL or LOAC are in force, the law is insufficient in differentiating combatants from non-combatants during wartime. This article will demonstrate how these legal lacunae result from the inadequate text of conventional regulations, like the Geneva Conventions, and from international court decisions, like the International Court of Justice (ICJ). Failure to adapt international law to better suit the nature of NIACs will continue facilitating unnecessary deprivations of life and promote human rights disasters.

*Tony Maquiling is a fourth-year majoring in Communication with a minor in Global Studies.

He has a passion for international affairs, human rights, and conflict resolution. Tony is planning on taking a year off before attending law school where he hopes to pursue a career in international and human rights law.

Editor: Sahej Ahuja s a third-year pure mathematics major. She loves both math and music and is always up for a challenge. She is an aspiring law student and is very grateful to have worked with such intelligent and inspiring people in the Undergraduate Law Journal.

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CONVENTIONS WITHOUT CONSTITUTION Introduction The United States Congress last declared war in June 1942 against the Axis powers. 1 Yet since then, several notable conflicts involving the U.S. have occurred in Vietnam and Korea, Afghanistan and Iraq, or Cambodia and Somalia. American conflicts such as these are complex in their composition of actors, goals, and interests, but wars around the globe are similarly disorganized and destructive. Was there, or is there still, an international war in Syria? Is the War on Terror a war or an expression of policy? Such questions are not simply an exploration of the rhetoric of conflict. In international law, different regulations are applied depending on the existence, scope, and combatants of war. Whether or not a conflict is civil or bleeds outside borders, whether it is international or non-international, whether it is a war or simply prolonged aggression are all factors that influence how international conventions on lawful combat and humanitarian protections apply. At the same time, laws on armed conflict seem Sisyphean; laws enforce social morals while war ravages destruction. The role of the law is not to solve this philosophical conundrum but to protect humanity's most fundamental rights in times when they are most threatened.

This article will focus on the process and problems of creating such protections during NIACS, an increasingly common style of warfare particularly ripe for human rights abuses for two reasons. First, the actual characteristics of conflict differ greatly between NIACs and international armed conflicts, like the World Wars. Organizations party to NIACs are much more nebulous than clearly defined state militaries and may span multiple countries. Second, the system of laws which regulate conflict were devised with international conflicts in mind. As a result, NIACs remain heavily under regulated and devoid of many critical humanitarian protections in IHL and LOAC. IHL and LOAC in their current form thus perpetuate human rights violations in NIACs through overly vague definitions of armed conflict and distinction of valid targets. Clarifying the scope and application of international law in NIACs will ameliorate some

1

H.J. RES. 321, 77th Cong. (1942).

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UCLA UNDERGRADUATE LAW JOURNAL dangers, but a clearer expansionary approach to IHL will create more universal and tangible standards of human rights.

This article will begin with an outline of the history of contemporary IHL and LOAC after World War II. As complementary systems of law, these systems uphold fundamental principles of humanity and grant certain permissions in times of war. Section II will examine the relevant components of IHL and LOAC to non-international conflicts, focusing on how conflict is defined through the International Court of Justice’s (ICJ) Tadić decisions and the applicable international statutes to NIACs. Following these descriptions are two critiques of the law as it exists. First, in the ante bellum or pre-war period, regulations on conflict offer too little guidance on their scope of application, demonstrated through varying definitions of armed conflict in international and domestic courts. Second, international law regulating NIACs is overly permissive in distinction between valid military targets and protected civilians, contributing to unnecessary loss of life. In response to these critiques, Section IV will identify complications in the expansion of IHL through the lex specialis doctrine, creating confusion for military leaders and domestic law. Finally, this article concludes by briefly analyzing the potential methods of expanding IHL and LOAC to make up for their deficiencies and strengthen their extensive application.

I. Characteristics and Regulations of New Armed Conflict This article uses the terms conflict and armed conflict to refer to armed confrontation between groups of people. The opinion of the International Committee of the Red Cross (ICRC) offers a similar definition of armed conflict as "protracted armed confrontations" in a non-international context and a "resort to armed force" between states in the international context. 2 Following a rise in terrorist attacks in the early 2000s, the International Law Association also reanalyzed the scope of armed conflict, conditioned on the presence of an armed group and intense armed fighting. 3 Such a broad definition of conflict

2

See INTERNATIONAL COMMITTEE OF THE RED CROSS, HOW IS THE TERM "ARMED CONFLICT" DEFINED IN INTERNATIONAL HUMANITARIAN LAW? (2008).

3 See Mary Ellen O'Connor, Defining Armed Conflict, 13 Con & Sec L. J. 393, 400 (2009).

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CONVENTIONS WITHOUT CONSTITUTION spans human history, but an analysis of more recent responses to conflict is relevant as it encompasses modern warfare.

The first Geneva Conference begins the era of conflict this article analyzes.

In this diplomatic conference, sixteen European states met in 1863 following a brutal Franco-Austrian war with the goal to establish and protect relief societies during conflict. 4 After two World Wars and the convening of a broader conference, the Geneva Conventions of 1949 arose to more fully address the horrors of war than the simple resolutions of the first conference. Yet even in 1949, the International Committee of the Red Cross (ICRC) who hosted the conference recognized that the inherent tension between state interests and protecting human rights would limit the effectiveness and scope of the new laws. 5 To better understand this tension, it is important to understand how wars themselves evolved during this period. The new face of conflict differs primarily in organizational structure, shifting away from hierarchical and nation-centric armed groups towards dispersed actors.

A. The New Nature of Conflict Changes in the structure of armed conflict in the 20th and 21st centuries highlight how regulation through outdated laws is ineffective. The organization of armed conflicts and the groups involved has moved towards protracted wars between many non-state actors and across geographic boundaries.6 The global war on terror exemplifies this shift with a renewed focus on fighting ideological, non-state groups without formal declaration from states. The United States, for instance, engaged in hostilities with both Al-Qaeda and the Taliban in Afghanistan, Iraq, and Pakistan through the use of a Congressional authorization of force targeted at terrorist groups, not a formal declaration. 7 This ‘war’ had no defined temporal or geographical scope, allowing conflict to continue 4 INTERNATIONAL COMMITTEE OF THE RED

Cross, RESOLUTIONS OF THE GENEVA INTERNATIONAL CONFERENCE (1863).

5 See JEAN S. PICTET, THE GENEVA CONVENTIONS OF 12 AUGUST 1949. I: GENEVA CONVENTION I FOR THE AMELIORATION OF THE CONDITION OF THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD: COMMENTARY (International Committee of the Red Cross, 1952).

6 See, KENDRA DUPUY & SIRI AAS RUSTAD, Trends in Armed Conflict, 1946-2017 (2018).

7 See, Authorization for Use of Military Force, S.J.Res.23, 107th Cong. (2001).

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UCLA UNDERGRADUATE LAW JOURNAL unabated and become an oft-criticized ‘forever war.’ 8 Similar conflicts span the globe, from Nigeria’s continued conflict with Boko Haram to the Islamic State of Iraq and the Levant (ISIL) spreading terror in Syria. 9 From 1946 to 2017, interstate conflicts, which took up nearly half of all conflicts in the mid-20th century, declined to as low as one per year (in 2017), while intrastate conflicts have nearly doubled.10 At the same time, a growing number of these interstate conflicts are becoming internationalized through the involvement of external states, such as the United States in Afghanistan. 11 These interstate types of conflict could fall under the umbrella of non-international armed conflicts, typifying the trend away from more formal wars between state militaries.

The effects of these organizational changes pose a great threat to the safety of non-combatants. While data are often hard to measure given the nebulous nature of new armed conflicts, the Center for Systemic Peace estimates noncombatants make up 84% of combat-related deaths in the post-Cold-War era, while formal combatant deaths have dropped to nearly zero. 12 Intentional attacks on civilians, such as terror campaigns, has contributed to this radical shift. In disorganized conflicts as described, with a variety of actors and few boundaries, non-combatants may live in the middle of conflict and suffer consequences to no fault of their own.

Fighting in Yemen exemplifies this shift and the detrimental effects on noncombatants. Houthi rebels in Yemen entered into armed conflict with the government around 2015. Three years later, the UN High Commissioner for Human Rights decried indiscriminate shelling and sniper attacks throughout the country.13 In many instances of rebellion an incumbent government holds an

8

See, Jessica Donati, The Forgotten People Fighting the Forever War, THE ATLANTIC (Jan. 23, 2021).

9 See, Lindsay Maizland, Who’s Who in Northern Syria?, COUNCIL ON FOREIGN RELATIONS, (Nov. 5, 2019).

10 See, Dupuy & Rustad, supra note 2 at 1.

11 See, Id. at fig. 1.

12 MONTY G. MARSHALL & BENJAMIN R. COLE, Global Report 2014: Conflict, Governance, and State Fragility 60 8b (2014).

13 See, U.N. High Commissioner for Human Rights, Yemen: Civilians at mercy of sniping, shelling and airstrikes, United Nations Human Rights Council, Feb. 12, 2018.

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CONVENTIONS WITHOUT CONSTITUTION advantage in material and social resources 14, but the Yemeni war highlights the organizational chaos featured in contemporary NIACs. Saudi Arabia and a host of Arab states lend support to the government, also backed by France and the U.S., while Iran backs the Houthi. 15 The conflict was thus internationalized, with outside states contributing soldiers, airstrikes, or material support and fueling the flames of war.16 The effects of this poorly regulated non-international conflict are immense: 4 million civilians have been displaced and over 10,000 children killed as conflict erupts amidst civilian populations and military operations cut off food supply to civilians. 17 Yemen continues to represent the crux of the issue surrounding NIACs – non-international armed conflicts pose great risks to civilian populations and are thus in the most need of strong protections, but are in fact the least protected under international law.

B. Regulating Conflict New conflicts are radically different in organization and effects from their predecessors. This section will now turn to what parts of international law govern these brutal conflicts and the many overlapping systems of law. Not all international bodies agree on the definitions or scope of regulations, but this article relies primarily on binding conventional text or customary law, as reflected in the ICRC database on customary international humanitarian rules. 18 First among these are IHL and LOAC, which are often used interchangeably and similar in both content and source. IHL sets certain humanitarian standards and the norms of humane treatment for all those involved or affected by conflict.

The LOAC is typically more focused on the conduct of hostilities, such as regulating what is a valid military target. The aforementioned Geneva

14

See, Marco Sassoli, The Role of Human Rights and International Humanitarian Law in New Types of Armed Conflict, INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW, Jan. 2011, at 36.

15 See, Chatham House: The Royal Institute for International Affairs, Yemen: Key Players and Prospects for Peace, 3-4, (2015).

16 See, Kali Robinson, Yemen’s Tragedy: War, Stalemate, and Suffering, COUNCIL ON FOREIGN RELATIONS, (Jan. 25, 2022).

17 See, Yemen, GLOBAL HUMANITARIAN OVERVIEW, https://gho.unocha.org/yemen (last visited March 27, 2022).

18 See, International Committee of the Red Cross, IHL Database Customary IHL, ICRC.

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UCLA UNDERGRADUATE LAW JOURNAL Conventions are a prominent source of both IHL and LOAC. Because both systems hold a common purpose of minimizing the effect of war, they will often encompass the same regulations. The Geneva Conventions, for instance, require combatants to avoid “incidental loss of civilian life, injury to civilians and damage to civilian objects," which establishes both protections and limitations on actual conduct. 19 As a complement to written IHL or LOAC, customary international law (CIL) consists of customs generally followed by states and allows humanitarian norms to become law without requiring multilateral treaties or conventions. For practice to become legal custom they must be “a general practice accepted as law” and “recognized by civilized nations,” as per ICJ Statute 38(a)(b) and (c). 20 In meeting these requirements, these practices require opinio juris through court or international tribunal, at which point individuals may be held criminally liable for their violation. 21 Customary law can become convention, as the custom of protecting civilians did in the above Geneva Conventions excerpt 22, but are enforced as law regardless. CIL is thus an important addition to conventional IHL and LOAC, as it enforces the most generally accepted principles to be upheld in war and is based on the prevailing practices of states.

Human rights law, as a final legal system, is a body of subjective norms regarding the treatment of all individuals. International human rights law (IHRL) is a specific set of fundamental guarantees inherent to all humans at all times. 23 The Council of Europe, a collection of European nations, in 1950 drafted the European Convention on Human Rights as a significant enumeration of IHRL and an establishment of the European Court of Human Rights. 24 The Convention included the central right to life and the prohibition

19

See, PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF INTERNATIONAL ARMED CONFLICTS (PROTOCOL

1), Article 57, (1977).

20 STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, art. 38, ¶ 1.

21 See, Robert Cryer, Individual Liability in International Law, in ROUTLEDGE HANDBOOK OF THE LAW OF ARMED CONFLICT (2016).

22 See, Protocol I, supra note 10.

23 See, International Committee of the Red Cross, International Humanitarian Law and International Human Rights Law: Similarities and Differences, (Jan. 2003).

24 See, European Convention on Human Rights, art. 19, adopted Nov. 4, 1950.

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CONVENTIONS WITHOUT CONSTITUTION of depriving life except when “absolutely necessary.” 25 IHRL is thus closely tied to the protective nature of IHL and the prohibitive norms of LOAC. The development of these many systems should provide a strong foundation for regulating conflicts, but if the trends in non-combatant deaths and the disorganization of war are any indication, they are under great pressure.

II. Non-International Conflicts in International Law NIACS are more than a new type of conflict that create humanitarian disasters; they are a unique category of armed conflicts under the regulations of war. They presented new difficulties in regulating conflict without overriding state sovereignty and brought with them great controversy. The French delegation to the first Diplomatic Conference of Geneva of 1949 highlights NIACs' unique spot in international law, as they denounced any text which would allow “forms of disorder, anarchy or brigandage to claim protection under the Convention.” 26 The French comment reflects the need to legally distinguish NIACs from other forms of conflict. Defining NIACs within IHL and LOAC is still, however, a contentious task with several tests which form the basis for controversies over the status of conflicts. After exploring these definitions, this section will discuss the laws that apply to such a conflict. The extremely limited scope and content of these laws will similarly create foundations for confusion and difficulty in expanding the law.

A. Defining Non-International Armed Conflicts This section outlines how international law defines both international armed conflicts (IAC) and non-international ones. The term ‘non-international armed conflict’ may seem inaccurate when describing a conflict with the involvement of multiple countries. However, the practice of defining an NIAC is heavily fact specific and intended to distinguish from rebellion or internal

25 26

Id. at art. 2.

ANTHONY CULLEN, THE CONCEPT OF NON-INTERNATIONAL ARMED CONFLICT IN INTERNATIONAL HUMANITARIAN LAW 29 (2010).

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UCLA UNDERGRADUATE LAW JOURNAL insurrection, so as to avoid overstepping state sovereignty. 27 An IAC is simpler to define: a conflict between High Contracting Parties, or state signatories, to the Geneva Conventions brings the full force of said Conventions. 28 The definition of state and the threshold of war between states is a widely contested matter and out of the scope here. Yet, conflicts consisting of at least one nonstate actor can reach a threshold at which the full scope of IHL and LOAC apply, turning them effectively into an international conflict. 29 A non-state actor may be recognized by the state involved or the international community as belligerent, reserved for groups that act as a de facto state with political organization, general self-sufficiency, and a ‘responsible authority’ capable of engaging in conflict with respect to the ‘laws and customs of war.’ 30 The issue of defining NIACs and the subsequent effect on regulations is one clearly and importantly tracked through the evolution of jurisprudence. One article of the Geneva Conventions intended to apply to all armed conflicts has no enumerated conditions for application and is thus, as the ICRC commentaries of 1952 proclaim, applied “automatically” and not conditioned on one party reciprocating attacks. 31 The International Criminal Tribunal for the former Yugoslavia would explicate the definition of a conflict not of an international character in The Prosecutor v. Tadić to consider the intensity and organization of conflict to distinguish it from “banditry… insurrections, or terrorist activities.” 32 The tribunal established a test for non-international armed conflicts: the parties to the conflict must have organizational capabilities to internally enforce international humanitarian law, and the conflict itself must reach a threshold of protracted armed violence. 33 The Tadić test thus forms the 27

See, International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. Commentary of 1987, para. 4343, ICRC. 28 See, GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION OF THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD, 2 (1949).

29 See, SANDESH SIVAKUMARAN, THE LAW OF NON-INTERNATIONAL ARMED CONFLICT 11 (1st ed 2012).

30 Id. 31 Treaties, States Parties, and Commentaries - Geneva Convention (I) on Wounded and Sick in Armed Forces in the Field1 949, Commentary of 1952, INTERNATIONAL COMMITTEE OF THE RED CROSS 1(A) (1952).

32 The Prosecutor v. Tadić, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, 562 (1995).

33 CULLEN, supra note 8 at 123–127.

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CONVENTIONS WITHOUT CONSTITUTION current basis for defining the scope of and NIAC, after which the relevant elements of IHL and LOAC apply.

B. Sources of IHL and LOAC in NIACs Of the extensive body of IHL and LOAC, only a handful of black letter laws apply to NIACs. Two of the most important such sources are Article 3 Common and Protocol II Additional of the Geneva Conventions. Article 3 Common is the only portion of the originally drafted Conventions which applied to, what was called at the time, "conflicts not of an international character." 34 The drafting states recognized the importance of regulating civil wars without infringing on national sovereignty or granting legal status to insurgent groups, a tension resulting in a neutered article originally intended simply as a preamble to the Civilians Convention. 35 Article 3 Common, in part, reads: (1) [Persons taking no part in the active hostilities, including members of the armed forces who have laid down their arms and those placed ‘hors de combat’ … shall in all circumstances be treated humanely and without any adverse distinction …

(2) The wounded and sick shall be collected and cared for.

The Parties to the conflict should further endeavour [sic] to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. 36

Such a sparse convention, with only two clauses, provides incredibly little guidance on the conduct of armed groups. It sets only minimal standards for the treatment of civilians or persons hors de combat, or combatants who have lost the ability to engage in hostilities. As evident in the final lines, this provision merely encourages combatants in an NIAC to adopt the full breadth of the Conventions.

Recognizing Article 3’s insufficiency, the ICRC convened another diplomatic conference in 1977 to discuss the addition of new protocols to the Geneva Conventions. Protocol I Additional created regulations for IACs while Protocol II Additional dealt solely with NIACs. Protocol II provides a prohibitive set of guarantees for humane treatment, the protection and 34 See, GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION OF THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD, supra note 29.

35 SIVAKUMARAN, supra note 11 at 40–41.

36 GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION OF THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD, supra note 29.

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UCLA UNDERGRADUATE LAW JOURNAL distinction of wounded or shipwrecked, and a final list of guarantees afforded to civilians and civilian objects. 37 Yet it too suffers from brevity in comparison to IAC regulations. Protocol II contains only eighteen substantive articles on humanitarian treatment, while Protocol II adds ninety-one to the existing body of the Geneva Conventions. 38 The key purpose of these conventions in conjunction with customary law and the practices of LOAC is to create a framework that balances military necessity and the right to life. It was fundamental to uphold state sovereignty in applying domestic law in cases not meeting the standard of armed conflict regulated by the Geneva Conventions. This balance, however, will prove difficult to uphold in the growing prevalence and threat of non-international armed conflict.

III. Legal Lacunae in Non-International Armed Conflict The IHL and LOAC as discussed fail to protect human rights in two regards throughout NIACs. First, conventional definitions on the start and scope of application of non-international armed conflict are overly broad and prevent adherence to the rule of law. Second, the regulations that do apply to NIACs lack clarity in delineating the distinction between civilians and combatants.

Ambiguity from the resulting legal lacuna, or gap, prevents effective expansion of the law through both lex specialis and criminal law.

A. Ante Bellum – Defining a Non-International Armed Conflict The Tadić test for defining an NIAC provides a better understanding of such conflicts, but a closer analysis of this test in conjunction with IHL reveals great complications in definitively establishing the existence of conflict. The Geneva Conventions applicable to NIACs explicitly define a scope of application but do so without offering a clear and agreeable method of reaching

37

Treaties, States Parties, and Commentaries - Additional Protocol (II) to the Geneva Conventions, (1977).

38 Id. at 1-7.

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CONVENTIONS WITHOUT CONSTITUTION this definition. Protocol II Additional defines a material field of application, or period in which the Protocol is in force, as: … all armed conflicts … which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 39

Several components of the test established here pose a significant and visible problem to defining a non-international conflict. The first test of conflict occurring between a High Contracting Party’s forces and a non-state group is of particular concern for application to internationalized conflicts. Reading the test strictly, for example, the U.S. government long argued its war on terror based in several foreign states fought against non-state groups did not meet Protocol II’s standards as it did not fight against the state militaries of its deployment areas. 40 This strict interpretation does match the broad intent of Protocol II, as the U.S. mission in Afghanistan alone reached intense armed confrontations with a peak deployment of over 100,000 soldiers 41 and the current civilian casualty estimate topping the same value. 42 The imprecise scope of application of NIAC regulations was, to some extent, intentionally designed to maximize the number of potential conflicts receiving basic protection in international law. ICRC commentary on Article 3 Common, for example, argues the lack of a test for application supports the widest protections, most of which were already customary for the signatories. 43 This justification for the lack of specificity is understandable, as it sets a low threshold for the appropriate law to take force and avoids creating a specific test that may obsolesce as conflict changes. However, in practice, the imprecise definition of a non-international conflict allows states and/or armed groups to alternatively define an ongoing conflict in order to evade NIAC regulations. The

39 Id. at 314.

40 See, SIVAKUMARAN, supra note 11 at 228–234.

41 See, AMY BELASCO, Troop Levels in the Afghan and

Iraq Wars, FY2001-FY2012: Cost and Other Potential Issues, 23, (2009).

42 See, United Nations Assistance Mission in Afghanistan, Surge in Civilian Casualties Following the Afghanistan Peace Negotiations Start - UN Report, (Feb. 23, 2021).

43 See, Commentary of 1952, supra note 12.

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UCLA UNDERGRADUATE LAW JOURNAL United States government, for example, long argued its conflict with Al-Qaeda and the Taliban was not a non-international armed conflict but instead a transnational conflict outside the jurisdiction of NIAC regulations. 44 Not until 2006, several years after fighting began, did the Supreme Court in Hamdan v.

Rumsfeld reject the government’s claim that NIAC referred only to internal, or civil, wars, creating a definition of NIAC as a “contradistinction to a conflict between nations.” 45 During the interim period in which Salim Hamdan was detained in Guantanamo Bay, beginning June 2002, he had no prisoner of war protections that would be afforded to NIAC combatants. 46 While Hamdan met the ‘proper’ conclusion, the Court’s reasoning is indicative of the conventional definition’s imprecision. Non-international conflict should not simply be defined as the negative of international armed conflict but should instead meet clear thresholds of application lest governments can refuse to apply the fundamental protections of war. i.

Personal Application of IHL

Issues in defining the beginning or existence of NIAC contribute to the difficulty in defining who is regulated by the relevant LOAC. The problem of this application to persons, as opposed to states, similarly prevents adherence to the law's intentions on an individual scale. Conventional law in NIACs does not positively define a combatant, as Protocol I Additional does in categorizing the armed forces of a state in IACs. 47 Protocol II Additional Article 13 instead affords civilian protections against attack “unless and for such time as they take a direct part in hostilities.” 48 This definition, however, is materially different from distinctions made in IACs between a combatant and a person hors de combat.

Per Protocol II’s definition, a civilian might choose to support the goals of a non-

44 See, Sivakumaran, supra note 24, at 228.

45 Hamdan v. Rumsfeld, 548 U.S. 557, (2006).

46 See id. at 4-6.

47 See, PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 AND

RELATING TO THE PROTECTION OF VICTIMS OF INTERNATIONAL ARMED CONFLICTS (PROTOCOL 1), (1977).

48 Treaties, States Parties, and Commentaries - Additional Protocol (II) to the Geneva Conventions, supra note 24 at Article 13(3).

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CONVENTIONS WITHOUT CONSTITUTION state armed group and take a direct part in hostilities by, for example, attacking an enemy transport moving through their land. For this time, and only for this time, do they meet a definition analogous to a state military’s combatant and become a valid military target. This is an insufficient designation as it provides an overly strict temporal scope on a civilian-become-combatant. ICRC commentary on Art. 13 provides little clarity: “[t]hose who belong to armed forces or armed groups may be attacked at any time.” 49 On the other hand, offering no explicit definition of combatant status in an NIAC permits more flexibility in applying the rules and standards to groups of varying political or military organizations. However, this position creates its own problems in regard to applying humanitarian protections selectively, in opposition to the law’s intent. United States law, for example, excludes unprivileged belligerents who “engaged in hostilities against the [U.S.]” or who “purposefully and materially supported hostilities.” 10 U.S.C. § 948a(7). 50 The unprivileged belligerent is explicitly distinguished from a privileged one who matches the status and therefore protections of the Third Geneva Convention, Article 4. 51 This conclusion directly opposes customary IHL protecting civilians until their duration of direct participation in conflict.

The combinations of these interactions of these ambivalent definitions thus establish a contradictory categorization. Combatants are positively defined in IACs but not NIACs, a category which enjoys protections when disengaged from conflict but are otherwise valid targets. Civilians are always protected from indiscriminate attacks, although from the text of Protocol II Additional, civilians lose these protections for the time they engage in hostilities during an NIAC. The United States, as one example of filling this unclear distinction, classifies others as “unprivileged belligerents” who enjoy neither combatant nor civilian protections, contradicting Protocol II.

49 Id. at 24.

50 10 U.S.C. § 948(a)(7).

51 See id. § 948(a)(6).

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UCLA UNDERGRADUATE LAW JOURNAL A. In Bello – Unregulated Conflicts in Convention and Custom Supposing tensions reach the level of a conflict, and such conflict is defined by its participants and international organizations as an NIAC, all relevant conventions and customs immediately apply. These conventions, however, are sparsely regulated and contain vague language on key humanitarian concepts.

Article 3 Common, to highlight the barren nature of NIAC regulations, earned the moniker a ‘convention in miniature’ at the 1949 Geneva Conference. 52 Attempting to catalog every missing aspect from the law of NIAC would be a fruitless task. Instead, two major issues arise in analyzing the laws relevant to NIACs. First, the fundamental concept of distinction is vaguely defined and enforced counter to the intentions of the law. Second, attempts to ‘fill the gaps’ of non-international law of war are controversial and often create more confusion for military commanders. i.

Distinction and Membership in a Non-State Armed Group

This section will analyze how IHL defines combatant and membership in armed groups, which serves as the foundation for distinction between valid targets. The principle of distinction is fundamental to all humanitarian laws and laws of armed conflict, as it is a natural extension of the protection of unnecessary deprivation of life. 53 In non-international conflicts, the distinction between a combatant and civilian is unclear, preventing the enforcement of laws which protect civilians from indiscriminate attacks. The lex lata for NIACs contrasts with IAC law which explicitly defines combatants and their status as valid targets. 54 The most important concept for NIACs, which lack such explicit terminology, is direct participation, requiring a three-part test: a threshold of harm, a direct causation, and the belligerent nexus. 55 52 See, 53 See,

Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, 35 (1949).

See International Committee of the Red Cross, Rule 1. The Principle of Distinction Between Civilians and Combatants, ICRC IHL Database, International Committee of the Red Cross, Rule 89. Violence to Life, ICRC IHL. 54 See, Protocol I, supra note 45, at Article 43(2).

55 See, Nils Melzer & International Committee of the Red Cross, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW, (2009).

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CONVENTIONS WITHOUT CONSTITUTION Like the concept of an unprivileged belligerent,, the U.S. Department of Defense War Manual also denotes certain individuals as ‘combatants’ insofar as their liability to be targeted. 56 One such group who meet the combatant definition are those “belonging to non-state armed groups.” 57 This distinction is further subcategorized by formal membership and functional membership, the latter of which includes those “following directions issued by the group or its leaders; [or] taking a direct part in hostilities on behalf of the group on a sufficiently frequent or intensive basis…” 58 The definition thus forms a new category of ‘quasi-combatant’ as distinct from those enjoying protection in the direct participation test.

The intention of creating new categories from the few offered in Protocol II Additional and Article 3 Common is to prevent a ‘revolving door’ phenomenon of civilian participation. ICRC interpretive guidance on the concept of combatant status recommends that membership in a non-state armed group party to the conflict be based on a ‘continuous combat function’ standard; a civilian whose continuous function is to directly participate in conflict is a de facto member of the armed group. 59 Their guidance certainly avoids the need for a quasi-combatant status as their definition fits the existing parameters of Protocol II Additional Art. 13, but it glosses over de jure membership in armed groups and the question of what participation means in the context of a nonstate organization. The National Democratic Front of the Philippines, an armed group party to a decades-long series of conflicts with the Filipino government, in 1996 declared the following groups as legitimate targets: “The Armed Forces of the Philippines; The Philippine National Police; … and [t]he intelligence personnel of the foregoing”. 60 Intelligence personnel, per the lex lata and ICRC interpretation, do not clearly meet the continuous combat function as they are not obviously “designed to directly cause the required threshold of harm”, as the direct participation test necessitates. 61 Without clearer delineation in 56 See, Stephen W. Preston, Department of Defense - Law of War Manual, (June 2015), at 218.

57 Id. 58 Id. at 220.

59 MELZER AND INTERNATIONAL COMMITTEE OF THE RED CROSS, supra note 21 at II. 60 NDFP Declaration of Undertaking to Apply the Geneva Conventions of 1949 and Protocol

of 1977 (1996).

61 MELZER AND INTERNATIONAL COMMITTEE OF THE RED CROSS, supra note 21 at V.

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UCLA UNDERGRADUATE LAW JOURNAL conventional law, overly judicious targeting as exemplified here will continue to impede the principle of distinction. ii.

Lex Specialis as Legal Lacunae

In light of gaps in the law like combatant status, the laws of armed combat are constantly expanding and evolving. One primary approach to this expansion, through lex specialis with IHRL, often introduces greater subjectivity during wartime and lacks the prohibitive framework of conventional law. The legal maxim lex specialis derogate lex generali refers to the application of a more specific law over the more general when both would apply. 62 In a normative sense, the rule with a larger “common contact surface area” to a set of facts must prevail over other applicable rules. 63While this principle allows organizations like the U.N. Commission on Human Rights or the European Court of Human Rights to take an expansionary approach from non-international LOAC, they provide no specific guidance on the behavior of armed groups and diverge on the justification for deprivation of life. 64 In a similar vein, lex specialis can also preferably apply specific state status.

Lex specialis and its implication in NIACs pose a problem due to the unclear legality and burden a ‘mixed’ framework between IHL and IHRL. imposes. In 1996, the International Court of Justice released a controversial advisory opinion on the Legality of the Threat or Use of Nuclear Weapons. The ICJ recognized that certain humanitarian rights might be derogated in times of war per certain permissive provisions in LOAC or IHL, but “[r]espect for the right to life is not… such a provision.” 65 This opinion, however, yielded no substantive change in law, only the norms which guide decisions and customs. From one perspective, the fusion of the fundamental guarantee to life in IHRL with

62 See Lex Specialis, TRANSLEX, Trans-Lex, https://www.trans-lex.org/910000 (last visited Feb. 8).

63 Marco Sassoli, supra note 71.

64 See id. at 78.

65 LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS, ADVISORY OPINION, 1996 I.C.J. 240 (July 8).

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CONVENTIONS WITHOUT CONSTITUTION concepts in IHL readily tampers unnecessary killings by reinforcing the need for armed groups to over-emphasize human rights. 66 This fusion perspective is not adequate to bridge the gap between the objectives of IHL and IHRL. IHL implicitly accepts the military necessity of depriving life from combatants or those belonging to armed groups, as previously discussed. First, the conventional laws governing international armed conflicts and their non-international counterparts are distinct in statute but, given their vague and basic nature, leave significant room for humanitarian abuse otherwise restricted. All conflicts not covered by the Geneva Conventions in full force, namely those of declared war between High Contracting Parties or incidents of territorial occupation 67 would seem to encompass a great deal of non-international conflicts. Yet any scenario that falls between the delineated ends of the international to non-international conflict spectrum creates a legal lacuna. A state, knowing it would have to comply with far fewer and less restrictive laws in an NIAC, is motivated to argue that its conflict is noninternational in character. The U.S. Department of Defense (DoD) positions itself within this gap as a matter of policy. The DoD manual and several executive branch decisions claim to uphold either the Geneva Conventions applicable to international armed conflicts or CIL even when not required,, but fail to specify which laws they continuously apply or when they go beyond their obligations. 68 They succeed in gaining a political benefit, since on the surface they appear to uphold the highest laws of armed conflict, but in reality leave few and inconsistent protections for enemy combatants. iii.

Converging Criminal Law and IHL

Another potential expansionist approach to the gaps in non-international armed conflict law is to converge criminal law and IHL. This approach is limited in its ability to regulate conduct in war and conflicts with IHRL norms. The 66

Dale Stephens, Human Rights and Armed Conflict - The Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case, YALE H.R. & DEV. L.J., (Sept. 2001), at 7.

67 See, GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION OF THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD, supra note 10.

68 See, Chris Jenks, A Matter of Policy: United States Application of the Law of Armed Conflict, 46 SOUTHWESTERN LAW REVIEW 337–353, 346–348 (2017).

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UCLA UNDERGRADUATE LAW JOURNAL flaws in this approach are most apparent in the International Criminal Court’s (ICC) decision in The Prosecutor v. Bosco Ntaganda decision. In Bosco, Congolese rebel general Mr. Ntaganda faced accusations of leading armed forces which captured civilians around an airfield and hospital, followed by an order to attack all civilians in the region despite their fleeing from the conflict. 69 The Court’s opinion centered around whether these acts met the definition of an ‘attack’ as a criminal offense per Rome State Art. 8(2)(e)(i). 70 The Court interpreted and expanded this crime to incorporate the text of Article 13(2) of Protocol II Additional, defining attacks as “acts of violence against the adversary.” 71 Yet the ICC also found that such connection between LOAC and criminal law, in the context of Rome Statute 8(2)(e)(i), “does not exist when the acts of violence … are committed against civilians that have fallen into the hands of the attacking party or are committed far from the combat area,” which would not “be considered as methods of warfare.” 72 This conclusion breaks from the expected norm that civilians should always be protected from unnecessary deprivation of life, regardless of their geographic location during such time. While the Court notes other international or domestic law might forbid the attacks, their convergence of the overly broad definition of attack in Protocol II Additional and the specific definition in the Rome Statute makes it difficult to create and apply a standard procedure.

IV. Approaches to Revising International Law Conventional changes to IHL and LOAC are difficult to achieve due to both political differences and the inherent motivation to maximize one’s own military capabilities by avoiding over-regulation. Yet, applying outdated and vague laws to rapidly changing non-international conflicts is insufficient to protect human rights and avoid unnecessary suffering. This section discusses how a revision of

69

See, Judge Ekaterina Trendafilova, Judge Hans-Peter Kaul & Judge Cuno Tarfusser, The Prosecutor v. Bosco Ntaganda 98, 15–16 (2014).

70 Rome Statute of the International Criminal Court, art. 8, Jul. 17, 1998, C.N.651.2010. -8, 2187 U.N. 38544.

71 Id. at 17.

72 Id. at 18.

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CONVENTIONS WITHOUT CONSTITUTION international law could approach redefining the temporal scope of a conflict and the civilian-combatant distinction.

Conventional and customary law offers little insight on the temporal scope of a non-international armed conflict, a particularly important scope in the context of determining who a combatant or non-state armed group member is.

Protocol II Additional does refer to the ‘end of hostilities’ but offers no specification as to what this means.73 The ICRC has promoted a lasting pacification test, marking the end of conflict by a complete cessation of hostilities without real risk of resumption. 74 Another proposed approach is a socalled functional one, which changes the application of IHL as the level of conflict diminishes. It first removes the prohibitive functions of IHL on the conduct of combatants at the cessation of conflict while retaining the protective features of the law. 75 This approach relies on an inverse of the Tadić test; namely, the intensity of conflict. 76 It is more in line with the ICJ Nuclear Weapon Advisory Opinion in promoting some basic guarantees applicable regardless of the state of conflict. At the same time, relying on the existing concepts of ‘cessation of hostilities’ and ‘intensity of conflict’ does not forego the difficult fact-specific analysis required in each.

The importance of clarifying the end of conflict, despite these difficulties, should not be overlooked. As discussed, belonging to a non-state armed group is enough to reach a quasi-combatant status in NIAC and thus become a valid target. However, these same armed groups may be ideological and exist far beyond the scope of armed conflict in both organization and time. Protracting wars over years or decades can span varying intensities in conflict and changing

73 PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF NON-INTERNATIONAL ARMED CONFLICTS (PROTOCOL II),

(1977).

74 ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts in 2015 | How does law protect in war? (2015).

75 Nathan Derejko, A Forever War? Rethinking the Temporal Scope of Non-International Armed Conflict, 26 JOURNAL OF CONFLICT AND SECURITY LAW 347–376, 357–360 (2021).

76 International Criminal Tribunal for the Former Yugoslavia, supra note 32.

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UCLA UNDERGRADUATE LAW JOURNAL organization, further blurring the lines between valid targets and civilians for groups party to a conflict. 77 Conclusion Conflict is part of both human history and human nature. An increasingly globalized and technologically adept world cannot shed the tendencies of war.

Despite this, humanity should not forego its efforts to regulate excessive violence. Legal and military scholars recognized this idea following the second World War, establishing the first modern international humanitarian laws in the Geneva Conventions. While non-international armed conflicts fell to the wayside in the law, the changing nature of warfare would bring them to the center of attention in the 20th and 21st centuries. The legal lacuna present in international law and conventions on warfare fail to adequately protect the rights of civilians from the perils of war.

IHL and LOAC thus face incredible hurdles in balancing the elimination of unnecessary suffering and the allowance of military necessity. Refusal of the laws’ application is often the first barrier: a problem exacerbated by the poor definitions of a non-international armed conflict. Even when the rules do apply, they are insufficient and remain ambiguous regarding the fundamental concept of distinction. Attempts to expand IHL and LOAC, while certainly reflecting lex ferenda with more progressive ideas of humanity, still fail to tailor guidance on both the conduct of hostilities and the protection of certain norms.

The guarantees afforded to combatants and civilians in international armed conflicts came out of a time when such conflicts were ravaging the world. The little attention given to their non-international counterparts has proven disastrous as the nature of conflict is shifting towards protracted, disorganized conflict. We must continue adapting humanitarian law and the law of armed conflict to keep pace with the ever-evolving nature of conflict. Creating clearer definitions of the start of a non-international conflict and the combatants 77

See, Yuval Shany, Human Rights and Humanitarian Law as Competing Legal Paradigms for Fighting Terror, 19INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW: PAS DE DEUX, 24, 13–33 (2011).

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CONVENTIONS WITHOUT CONSTITUTION involved will be a first step [in…]. Resolving contradictions when expanding IHL with human rights law will create a more complete and comprehensive framework, though requiring a much larger political undertaking. Failure to begin updating the international law, however, ignores the millions who suffer displacement or death in the inhumane wartime environment, leaving them to endure the depravities of armed conflict and human nature.

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UCLA UNDERGRADUATE LAW JOURNAL Ira Phatak*

Uti Possidetis Juris: A Solution for the SinoIndian Border Conflict ABSTRACT. Relics of colonialism have long pervaded modern political life, on both the domestic and international scale. Uti possidetis juris is one such archaism, a principle rooted in the legacies of colonialism that have yet to disappear from the world stage. It is a principle of customary international law that freeze-frames colonial borders to secure territorial integrity for newly independent countries and resolve border conflicts.

Unfortunately, this principle’s foundation in antiquated colonial ideals raises questions about its utility for postcolonial states. This article focuses on one particular conflict, the Sino-Indian border dispute, as a lens through which to analyze the (non)functional applications of uti possidetis juris. This article argues that uti possidetis juris is an archaic principle with no place resolving the border disputes of the postcolonial world. Instead, this article will posit that border disputes must be arbitrated with an alternative in mind: the Third World Approach to International Law (TWAIL). By privileging the concept of self-determination over that of territorial integrity, the TWAIL methodology enables arbiters to consider a plethora of factors that uti possidetis juris may ignore. This article proposes that uti possidetis juris should be rejected in the context of the resolution of the Sino-Indian border dispute in favor of a TWAIL-informed international arbitration.

*Ira Phatak is a fourth-year, double majoring in Political Science and International Development Studies and minoring in French. In addition to her involvement with the UCLA Undergraduate Law Journal, she is the President of the pre-law fraternity Kappa Alpha Pi and a tutor at the Undergraduate Writing Center. After graduation, Ira plans to attend law school and pursue a career in international law.

Editor: Mustafa Ahmedani Mustafa is a fourth-year Political Science and History student at UCLA. He is interested in international law, dispute resolution, and supranational organizations.

As he progresses past UCLA, Mustafa would like to pursue a career in international law to engage with the cosmopolitan communities he was molded from.

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT Introduction In the present day, there are over 150 territorial conflicts in progress. One of these conflicts is located at the Sino-Indian border: a boundary that has been disputed for over 100 years. Rooted in the colonial era, when the British Empire reigned over India, this conflict has caused endless strife for both countries.

Infrastructure races, violent and nonviolent military skirmishes, and the involvement of buffer states have been recurring symptoms. Unfortunately, there has been little to no remediation of this dispute, despite diplomatic attempts from both sides. In accordance with traditional resolutions of border disputes, Customary International Law (“CIL”) applied by third party international arbitrators will likely be used to determine the territorial award.

Unfortunately, when applied to postcolonial border disputes, CIL is marred by a reliance on the principle of uti possidetis juris (“UPJ”). Uti possidetis juris (“as you possess”) is a tenet of international border law that freeze-frames and legitimizes colonial boundaries as the true international boundaries for an emerging state. 1 The legitimization of pre-independence borders implicitly sanctions the decisions of the colonial authority, which is especially concerning in countries where the ruling power cared little about the interests of the colony.

Additionally, the stability the principle purports to achieve is often fragile.

Particularly for two countries with a wealth of nuclear and military capabilities, fragile stability is not a panacea, and is not the appropriate goal. Therefore, a standard application of CIL is not the appropriate method.

This paper seeks to critically assess the ability and necessity of CIL to resolve the Sino-Indian border dispute, concluding that a reform of CIL regarding postcolonial border disputes is imperative. This paper will first provide a brief history of the dispute in Section I, highlighting the origins of the border in question and exposing its linkages to the legacy of colonialism. This will lead to a discussion of the conflict’s present status, where this article will argue for the necessity of resolution and the relevance of CIL and uti possidetis juris to this case. Section II will outline the colonial underpinnings of uti 1

Uti possidetis juris, WEX, https://www.law.cornell.edu/wex/uti_possidetis_juris (last visited Feb. 8, 2022).

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UCLA UNDERGRADUATE LAW JOURNAL possidetis juris with a close analysis of the case that codified it into international law, Burkina Faso v. Republic of Mali, and a relevant application of the principle in the dissolution of Yugoslavia. From this analysis, it will become abundantly clear that uti possidetis juris is a dysfunctional colonial relic with limited utility in a postcolonial world. It is a principle designed to protect the economic, political, and commercial interests of existing powers, with consequences that adversely affect native populations, the stability of a region, and the right to selfdetermination. This conclusion will be built on to further emphasize the detriments of uti possidetis juris in the Sino-Indian case.

This paper will argue that in cases of postcolonial countries facing border conflict generally and the Sino-Indian dispute specifically, a different method of adjudication informed by the Third World Approach to International Law (“TWAIL”) critique must be prioritized. First, the strength of TWAIL as an alternative to CIL that privileges the legal right to self-determination in the Third World and in the international order 2 will be evaluated. This evaluation will be furthered by the analysis of a successful application of TWAIL in conflict adjudication. This paper will then highlight the value of this method, which prioritizes nuanced interpretations of territorial integrity and sovereignty, and make the case that it ensures that self-determination will no longer be subordinated in favor of fragile stability. This approach will also be shown to accord appropriate weight to arguments by all parties in a dispute, allowing an equitable and fair territorial award to be made. This article aims to fill the gap in the body of literature regarding the applications of uti possidetis juris in the SinoIndian case, and to conclusively show that uti possidetis juris can no longer remain the standard principle of CIL adjudication in postcolonial border disputes. In order to continue to promote the peace and tolerance that it posits as its key motivations, CIL must transform with some degree of accordance with the TWAIL critique.

2

David P. Fidler, Revolt Against or From Within the West? TWAIL, the Developing World, and the Future Direction of International Law, 2 Chinese J. Int’l l. 29 (2003).

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT I. Background A. Sino-Indian Border Dispute The Sino-Indian border dispute occurs over the McMahon Line, a colonial boundary between the two countries that was formed by British India and Tibet during the Simla Convention of 1914. China rejected the legitimacy of the boundary, while India embraced it, leading to violent and nonviolent clashes between the two countries as they fought to solidify their areas of control.

1. The Simla Convention Britain catalyzed the Sino-Indian border dispute as it attempted to contain Chinese expansion and solidify its control of colonial India, the crown jewel of the British Empire. In 1914, the British Raj was becoming increasingly concerned about how Chinese expansionism would affect India’s commercial and territorial strength. 3 Tibet, a state to the northeast of India, had recently gained independence from China, which represented a strategic opportunity for the British. If they were able to solidify, formalize, and expand Tibetan independence, Tibet could act as a bulwark against Chinese expansion. The Simla Convention of 1914 met with this goal in mind. General Henry McMahon, the British representative at Simla, colluded with Tibetan representatives to draft a zonal partition of Tibet. 4 This was immediately rejected by Chinese representatives for several reasons. First, it would legitimize Tibetan independence: unconscionable for China. Second, it would compromise China’s strategic position in the region that would be “Inner Tibet,” which directly bordered India. Though China refused to sign this draft, McMahon and the Tibetan representatives did, and thus the McMahon line separating India and Tibet was born.5 When China eventually conquered Tibet again in 1951, the McMahon Line would become known as the Sino-Indian border and would

3

Stephen P. Westcott, Seizing a Window of Opportunity? The Causes and Consequences of the 2020 Sino-Indian Border Stand-Off, 8 j. Asian Security & Int’l Aff. 7 (2021).

4 Id. at 523.

5 Id.

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UCLA UNDERGRADUATE LAW JOURNAL become the functional colonial border between India and China. As China did not accept the legitimacy of the boundary, the McMahon Line would become the source of ongoing disputes between the two countries, a conflict that continues to this day.

2. The McMahon Line and the Colonial Context It is important to note once again that because the McMahon Line was never formally approved by China, it continues to be a symbol of colonialism today.

China’s interest in this dispute stemmed from this very fact, as they could not condone the lack of respect for Chinese sovereignty and autonomy over their own borders. Had the Simla Convention representatives taken Chinese needs into consideration, the likelihood of the protracted conflict we see today would have been decreased. British and Tibetan representatives secretly exchanged drafts of the map with the McMahon Line drawn on, and in these exchanges, came to an agreement to approve the boundary without consulting the Chinese. 6 Additionally, the hegemonic influence of Britain as a military, economic, and colonial power ensured that this method of border delineation could not be easily fought by China, even if they did not accept its legitimacy. More importantly, the fact that General McMahon, a simple representative of the Empire, found that British colonial and territorial interests superseded Chinese sovereignty reveals the pervasive superiority complex of the colonial power. 7 Indeed, in 1960 British representatives would continue to voice their support, and even today, India maintains the legality of the McMahon Line as their official boundary with China. To China, the boundary is still relatively fluid because there was never a formal, official treaty agreed to by both countries, and so the origins of the present-day conflict become clear, especially with the context of the secret discussions. 8 The very existence of the McMahon Line is predicated on the primacy of colonial interests over equitable decision-making, and its legacy is mired in recursive violence, which will be briefly outlined.

6 Id. 7 Id. at 522.

8 Russell Goldman,

India-China Border Dispute: A Conflict Explained, N.Y. TIMES (Sept. 8, 2020), https://www.nytimes.com/2020/06/17/world/asia/india-china-border-clashes.html.

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT 3. Conflict at the Border The fluctuating frequency of violence of the ensuing conflicts have important implications for the future of the dispute. In totality, the dispute falls along an eastern, western, and central sector, which encompass roughly 135,000 square kilometers of area. 9 The eastern sector is under Indian control, corresponding to the Indian state of Arunachal Pradesh, but is claimed by China.

The western sector is under Chinese control, corresponding to the province of Aksai Chin or Ladakh, depending on which state is asked. The central sector is just west of Nepal, and control of the region is divided. 10 A disagreement regarding the incorporation of Aksai Chin - a region of strategic importance to China – into the Indian state of Ladakh led to the 1962 Sino-Indian border war, which China squarely won. 11 China crossed the McMahon Line and set up a ceasefire line farther into ostensibly Indian territory. This was the unofficial Line of Actual Control (“LAC”): a boundary enforced by Chinese military strength. This first major conflict made it clear that China would resort to violence to secure their territorial integrity. A lack of consensus around this new boundary led to another skirmish in 1967, where India successfully pushed China farther East and established a new LAC that China would not recognize. 12 There were now two disputed LACs, and it was clear that neither side would accept the other's boundary. These cat-and-mouse interactions would reoccur several times across the decades, revealing the continuing potential for violence and the trigger-happy nature of the nations, now strong nuclear powers. 13 Despite new treaties and ceasefires, escalation continued. This would frequently manifest itself as petty rock-throwing under demilitarization and aggressive military mobilization. 14 It is no wonder, then, that violent

9

M. Taylor Fravel, Why are China and India Skirmishing at their Border? Here’s 4 Things to Know, WASH. POST, (June 2, 2020), https://www.washingtonpost.com/politics/2020/06/02/why-are-china-india-skirmishingtheir-border-heres-4-things-know/.

10 Id. 11 Westcott, supra note 3.

12 Goldman, supra note 8.

13 Id. 14 Gardiner Harris & Edward Wong, Where China Meets India in a High-Altitude Desert, Push Comes to Shove, N.Y. TIMES (May 2, 2013),

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UCLA UNDERGRADUATE LAW JOURNAL engagement has once more become the standard, indicating the tonal shift in diplomacy and border interaction.

In 2020, intense skirmishes broke out once more, perpetuating the legacy of violence rooted in the colonial past. Indian and Chinese troops engaged in a small altercation on May 5 in a border region that both sides lay claim to. 15 Such flashpoint regions are heavily patrolled by both countries, ensuring the high frequency of such standoffs in the 2010s. May 5th, however, proved to be the catalyst for a renewed low-grade border war. June 15, 2020, marked the first LAC-related combat death in almost 55 years. 16 Since then, tensions have run high, and both countries have mobilized their troops to contested areas along the boundary, indicating a lowered bar for violent engagement. 17 Most recently, on October 23, 2021, China passed a new border law which equipped military border patrols with weaponry, granted the Chinese military discretion in how and when to “resolutely defend” territorial sovereignty, and pledged to continue socioeconomic and infrastructural development on the border. 18 The legislation serves as a warning to India, and a promise to the international community: if India oversteps, they will be dealt with forcefully. It is a powerful and dangerous statement, bolstered by the military prowess of China and their history of using violence as a means to an end. China’s aggressive strategy only confirms the need for the resolution of the border conflict, as both countries edge towards militarism in place of diplomacy.

B. Necessity of Conflict Resolution and Impact on Neighboring States Should this dispute escalate, it would be catastrophic as it concerns itself with a mountainous border in the Himalayas that separates Ladakh into sectors

https://www.nytimes.com/2013/05/03/world/asia/where-china-meets-india-push-comes-toshove.html.

15 James Griffiths, Why are China and India Fighting Over an Inhospitable Strip of the Himalayas?, CNN (June 18, 2020), https://www.cnn.com/2020/06/17/asia/india-china-aksai-chinhimalayas-intl-hnk/index.html.

16 Goldman, supra note 8.

17 Westcott, supra note 3.

18 Shuxian Luo, China’s Land Border Law: A Preliminary Assessment, BROOKINGS INST. (Nov. 4, 2021), https://www.brookings.edu/blog/order-from-chaos/2021/11/04/chinas-land-borderlaw-a-preliminary-assessment/.

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT of Indian and Chinese control. 19 While it is a fairly narrow strip of land, the conflict disrupts communities living on the border, tribal communities, and states that neighbor the border. The Mishmi tribe is one such nomadic, tribal community which was split between the two countries, China and India, by the Sino-Indian War of 1962. 20 The war also restricted their movements across the border, more permanently dividing a tribe that had once freely moved across the boundaries.21 A more violent or decisive conflict could further erode their identity as a tribe and their place on the border. Additionally, Indians of Chinese descent have faced discrimination in the past as a result of the conflict.

Following the same 1962 war, thousands of such individuals were seen as suspicious, detained, and sent to prison camps for several months or years. 22 These raids were a direct result of the war, which convinced Indians that Indians of Chinese descent could not be trusted as anti-China sentiment burgeoned. The recent clashes at the border could reinvigorate this dangerous sentiment, putting these communities at risk once more. Both of these communities desire resolution, the former to ensure their unity is no longer threatened, and the latter to maintain their sense of nationhood and identity.

Moreover, beyond making Sino-Indian diplomacy unsalvageable, a conflict escalation would place Tibet and Bhutan, two buffer states, in a tenuous situation. In 2017, India and China faced off for 73 days in the Doklam Plateau, an area claimed by both Bhutan and China.23 Though both nations demilitarized and retreated, China has since resumed its infrastructural developments, looking to gain a military advantage in the region. 24 Undoubtedly, Bhutanese regions would become embroiled in combat should there be another conflict.

19

Jin Wu & Steven Lee Meyers, Battle in the Himalayas, N.Y. TIMES (July 18, 2020), https://www.nytimes.com/interactive/2020/07/18/world/asia/china-india-borderconflict.html.

20 Ambika Aiyadurai & Claire Seungeun Lee, Living on the Sino-Indian Border: The Story of the Mishmis in Arunachal Pradesh, Northeast India, 76 Asian Ethnology 367 (2017).

21 Id. 22 Lauren Frayer, Tensions with China Revive Old Fears for Indians of Chinese Descent, NPR (Dec. 12, 2021), https://www.npr.org/2021/12/12/1059976638/india-china-conflict-chinatownchinese-indians.

23 Joel Wuthnow, Satu Limaye & Nilanthi Samaranayake, Doklam, One Year Later: China’s Long Game in the Himalayas, War on the Rocks (June 7, 2018), https://warontherocks.com/2018/06/doklam-one-year-later-chinas-long-game-in-thehimalayas/.

24 Id.

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UCLA UNDERGRADUATE LAW JOURNAL Additionally, the potential conflict could make Ladakh itself, a small state peppered with villages devoted to sustainable agriculture and composed of ethnic minorities, a warzone. The 1962 border war occurred in Ladakh itself, and much of the contested border line is in the Himalayan region just outside of the inhabited portions of the state. The border dispute would reach beyond solely India and China, pulling in players from across the Southeast and South Asian theaters. Fortunately, there is precedent for varying methods of border dispute arbitration, both in the sphere of broader international law and directly between quarreling countries, which will be discussed in the following sections.

II. Uti Possidetis Juris and Customary International Law: A Dysfunctional Legal Framework Practitioners of international law have relied on two general solutions for border issues: either the application of CIL in third party adjudication of conflict using uti possidetis juris or the creation of treaties and agreements between the actors.25 In the case of the Sino-Indian border dispute, the treaties that have been created in the interim have been sidelined or purposefully ignored. This ensures that should either party seek to resolve this conflict through a third party, CIL would be utilized. 26 The next sections seek to better define uti possidetis juris, clarifying its common usage in CIL, dismantling its accepted benefits, and highlighting its archaic and dysfunctional nature as a product and process of colonialism. Ultimately, this section will conclude that uti possidetis juris is a principle that will further polarize the two countries, worsen the conflict rather than ease it, and perpetuate the colonial legacies that fomented the conflict in the first place.

25

P. Ishwara Bhatt, Peaceful Resolution of International Boundary Disputes: Drawing Lessons from the Indian Experiences, 59 Indian J. Int’l L. 1 (2021).

26 Westcott, supra note 3.

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT A. Origins and Consequences of Uti Possidetis Juris 1. Historical Antecedents and Political Necessity Uti possidetis juris has had numerous historical applications but has eventually evolved into one of the primary principles considered in border arbitration cases. It was first utilized in early Rome in private municipal law for property protection but would be transformed to inform the nature of peace treaties, and eventually, legitimize state boundaries. 27 Uti possidetis juris necessarily forms the basis of peace treaties, a precursor to its application in border dispute cases.28 This is because such treaties require that everything must remain as it was found when the treaty was being created: status quo ante bellum. 29 As a result, if territorial control was different at the creation of the treaty than at the start of the war, state boundaries would change as well unless further stipulations were made. As an example, imagine that the U.S. and Canada were to engage in war and the U.S. were to take control of Quebec. If they were still in control of Quebec when a peace treaty was being drafted, that territory would now become U.S. land unless they chose to return it to Canada: de facto borderlines created by war. Everything would remain the way it was found unless otherwise specified.

This understanding of the principle as one that confirms de facto borders transformed it into one that resolves most frontier disputes in more recent years.

It has been used to resolve border disputes during the colonial era in Latin America, arbitrate postcolonial border conflicts in Africa, and even assist in the dissolution of the USSR, Yugoslavia, and Czechoslovakia.30 Should there be conflict at a border post-independence, uti possidetis juris ensures that borders must remain the way they were found at the point of independence. Uti possidetis

27

Fozia Lone, Uti Possidetis Iuris, Oxford Bibliographies (Feb. 23, 2022, 6:17 PM), https://doi.org/10.1093/OBO/9780199796953-0065.

28 Henry Wheaton & Coleman Phillipson, Wheaton’s Elements of International Law (5th ed.

1916).

29 Id. 30 Alain Pellet, The Opinions of the Badinter Arbitration Committee: A Second Breath for the SelfDetermination of Peoples, 3 J. Eur. J. Int’l L.178 (1992).

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UCLA UNDERGRADUATE LAW JOURNAL juris thus represents the essential starting point for any discussion regarding border disputes. 31 2. Uti Possidetis Juris in a Postcolonial World Despite its pervasiveness in international law, the colonial lineage of uti possidetis juris raises questions about the utility of the principle in a postcolonial world. The principle itself emerged in its modern application in Latin America to prevent territorial conflict between colonial powers. 32 This colonial-era application of uti possidetis juris froze borders as they were delineated at the time of possession, limiting the potential for wars over colonial holdings. 33 This protects the commercial interests of colonizing countries and refocuses their economic efforts to their extractive relations with their colonial territories rather than protracted conflicts with other countries.

In the postcolonial space, this principle similarly states that newly independent states will retain the administrative and functional boundaries that were put into place by the colonial power, provided they still existed at the moment of independence. 34 In short, by freezing the boundaries as they were during occupation, the hope was that newly independent nations could refocus their efforts on establishing sovereignty, strengthening their new borders, and pursuing other methods of becoming a strong, self-sufficient state. 35 Unfortunately, most of these pre-independence borders disregarded local realities, including but not limited to the geographical placement of ethnic groups and natural boundaries of the area, as will be seen in case studies discussed later in this section. 36 By turning their colonial boundaries into the international frontiers by which postcolonial states would have to define

31

Abraham Bell & Eugene Kontorovich, Palestine, Uti Possidetis Juris, and the Borders of Israel, 58 Ariz. L. Rev. 633 (2016); Bhatt, supra note 25.

Vasuki Nesiah, Placing International Law: White Spaces on a Map, 16 leiden j. int’l l.1, 23 (2003).

33 Id. at 23.

34 Brian Taylor Sumner, Territorial Disputes at the International Court of Justice, 53 Duke L. J.1779, 1790 (2004).

35 Frontier Dispute (Burk. Faso/Mali), Judgment, 1986 I.C.J. Rep. 554, ¶ 25 (Dec. 22).

36 Id. at 1791.

32

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT themselves, the states themselves as well as the communities within them were forced to reimagine their identities. 37 3. Modern Debates Proponents of uti possidetis juris claim that it is a conflict-avoiding principle that seeks to protect the stability of postcolonial nations that are often at risk of civil or interstate conflict. 38 However, its critics make the point that the principle subordinates ethnic and national self-determination and functions as a political tool rather than an objective tenet of international law. 39 Uti possidetis juris is a rigid principle: it does not consider historical context, local needs, or pre-colonial realities. It cannot be nuanced enough to prevent conflict, and in many cases, it has been the catalyst for further border disputes, which will be seen in the case of Yugoslavia.

This is particularly relevant given the Sino-Indian border problem. If uti possidetis juris’ rigidity can lead to further disputes and cannot consider other factors, its application to this conflict will almost certainly do the same. The next sections shall demonstrate how and why, despite its rigidity, the principle has been codified in international law, how it has promoted fragile stability that often leads to interstate violence, and how it further obfuscates the ability of new states to form an independent identity.

B. Burkina Faso v. Republic of Mali In 1986, the International Court of Justice (“ICJ”) arbitrated a border dispute between Burkina Faso and Mali that codified the use of uti possidetis juris in CIL, providing a standard justification for its use in cases of postcolonial frontier conflicts. The dispute parallels the Sino-Indian affair, as neither country could come to an agreement on one specific strip of land, prompting several 37

Tayyab Mahmud, Colonial Cartographies, Postcolonial Borders, and Enduring Failures of International Law: The Unending Wars Along the Afghanistan-Pakistan Frontier, 36 Brookes J. Int’l L. 60 (2010).

38 Aman Kumar, A Relook at the Principle of Uti Possidetis in the Context of the Indo-Nepal Border Dispute, 12 Jindal Global L. Rev. 95 (2021).

39 Id.

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UCLA UNDERGRADUATE LAW JOURNAL violent clashes and appeals from heads of state throughout Africa to reconcile the conflict. 40 In 1983, the two countries would submit their case to the ICJ, and the court’s eventual decision would create the foundation for the common postcolonial applications of uti possidetis juris.

The ICJ was called on to determine the legal border for the two states in accordance with the “principle of the intangibility of frontiers inherited from colonization.” 41 The ICJ argued that this principle could only be respected by the application of uti possidetis juris itself. 42 Additionally, the focal point of the argument was whether these intangible pre-existing international boundaries must be respected in the case of state succession, decidedly similar to the legal issue at the center of the Sino-Indian dispute. 43 The ICJ decided that these boundaries must be respected and then drew the border line starting from the colonial administrative boundary, which was broadly accepted to have existed prior to independence and at the moment of independence. 44 The ICJ further concluded that uti possidetis juris was a “general principle... logically connected with the phenomenon of the obtaining of independence, wherever it occurs.” 45 Additionally, they found that the primary purpose of the principle was to secure the independence and fragile stability of these postcolonial countries. 46 The principle would do this by legitimizing the borders of a new state so they could no longer be contested, allowing the country to focus on strengthening their domestic power instead of engaging in territorial conflict. This broadened the use of the principle from a mere border demarcation to a protector of independence, pre-existing international boundaries, and state succession. 47 It is necessary to note that the ICJ made an important concession regarding the ramifications of uti possidetis juris on this dispute: “at first sight this principle

40

Monroe Leigh, Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), 81 Am J. Int’l L., 413 (1987).

41 Dirdeiry M. Ahmed, Boundaries and Secession in Africa and International Law: Challenging Uti Possidetis (2015).

42 Id. 43 Burk. Faso/Mali, 1986 I.C.J. at 567.

44 Id. 45 Id. 46 Id. 47 Arman Sarvarian, Uti Possidetis Iuris in the Twenty-First Century: Consensual or Customary?, 22 Int’l J. Minority & Group Rights 511, 524 (2015).

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT conflicts outright with another one, the right of peoples to selfdetermination.” 48 The ICJ concluded, however, that uti possidetis juris was in fact in line with the court’s freedom to determine equity under the law, or equity infra legem, and its stabilization of borders created the conditions necessary for the next step of national self-determinism. 49 In the Sino-Indian case, this is relevant to both countries as they are trying to determine their respective territorial bounds, a key aspect of national self-determination, while in dispute.

Therefore, the present conflict and lack of stable borders is preventing progress towards solidifying a national identity. However, should the ICJ’s ruling hold true, the application of the doctrine would provide a foundation for future selfdetermination through its emphasis on stabilizing borders.

Unfortunately, the ICJ predicated its conclusion on an archaic understanding of the social and human impacts of border drawing. Proponents of the ICJ decision make the argument that uti possidetis juris is used to define the territory’s bounds, while self-determination is the subsequent political right granted to people within that territory; the two cannot conflict. 50 Identities are thus not altered by the legitimization of a colonial boundary. Critics, however, rightfully argue that this cannot be true, as “the border itself refashions the identity of communities” before the right to self-determination can be exercised. 51 In the context of the Sino-Indian affair, this poses a problem. The 1962 police raids on Indians of Chinese descent mentioned previously provide insight into the potential for protracted conflict across identity lines, within states and between states, as identities are reorganized and refashioned.52 The impact of rigid border enforcement on the Mishmi tribe provides further evidence for the erosive impacts of border reconfiguration on identity. The legitimization of a colonial boundary would necessarily compromise selfdetermination, prioritizing a product of colonialism over national sovereignty 48 49 50

Burk. Faso/Mali, 1986 I.C.J. at 567.

Nesiah, supra note 32 at 25.

Lea Brilmayer, Secession and Self-Determination: A Territorial Interpretation, 16 Yale J. Int’l L. 177 (1991).

51 Vanshaj Ravi Jain, Frozen Frontier: Uti Possidetis and the Decolonization of South Asia, (RSC Working Paper Series 130, 2019), https://www.rsc.ox.ac.uk/publications/frozen-frontier-utipossidetis-and-the-decolonization-of-south-asia.

52 Frayer, supra note 22.

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UCLA UNDERGRADUATE LAW JOURNAL and identity. 53 The following discussion of the dissolution of the Socialist Federal Republic of Yugoslavia will provide further evidence for this conclusion and elucidate how applications of CIL can encourage interstate and intrastate violence and shape the development of post-independence identities.

C. The Badinter Commission and Yugoslavia In November 1991, the Arbitration Commission of the Peace Conference on Yugoslavia published opinions that would confusingly apply the tenet of selfdetermination, widen ethnic rifts within states, and catalyze new territorial disputes between the new states. The Commission’s decision would reveal the potential of uti possidetis juris for interstate conflict. The Badinter Commission, as it was also known, was called upon to tackle the conflicts arising from the dissolution of Yugoslavia. 54 Following sociopolitical and economic conflicts throughout the 1980s, the Socialist Federal Republic of Yugoslavia (SFRY) began to crumble, with constituent republics declaring independence. 55 As they did so, however, minorities within the newly independent republics began to rally for their own independence. Additionally, the European Community was struggling to assess which claims were valid and which were not. 56 To remedy this, the European Community leaders formed the Badinter Commission in order to prevent the violence that was already beginning to erupt and determine the nature of these new states.

One of the Commission’s primary judgments was that the rights of minorities should be protected. Indeed, they would argue that minority communities should have the right to benefit from “all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their national identity.” 57 However, when considering the rights of the Serbian population in Croatia and Bosnia and Herzegovina, the Commission would cite uti possidetis juris in its opinion that 53 Aiyadurai & Lee, supra note 20.

54 Pellet, supra note 30.

55 Cornelia Navari, Territoriality, Self-Determination

1299 (2014).

56 Id. at 1300.

57 Pellet, supra note 30.

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT the Serbs did not have the right to self-determination in the form of independent statehood. The Commission would state that “the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise.” 58 In other words, despite the strength of the Serbian minority in those countries, they could not fight for independent statehood if it threatened the existing borders.

Territorial integrity was far more important than self-determination, a claim rooted in the opinion of the ICJ outlined above in Burkina Faso v. Mali.

This would lead, however, to a Serbian nationalist movement within Croatia and Bosnia and Herzegovina that widened the political and ideological gap between native Bosnians, Croatians, and Serbs. In 1992, the Serbs declared their independence from Bosnia as the Republika Srpska while a Croatian-backed faction did so as Herzeg-Bosnia. 59 This catalyzed the incredibly brutal Bosnian War, a protracted conflict over territorial claims. The three factions would attempt to gain territory in order to increase their legitimacy and strength, and the Bosnian Serbs would even stoop to the reprehensible strategy of ethnic cleansing to advance their position. 60 The position of the Badinter Commission had legitimized the subordination of the Serbian minority, convincing them that they could not gain independence or improve their circumstances without abject, horrific violence.

By applying uti possidetis juris, the Commission inferiorized a legitimate ethnic minority and ethnic self-determinism. It instigated further conflict between states and within states because it declined to afford the same rights and benefits to this minority in the interest of securing territorial stability. It additionally forced the Serbian minority to recontextualize their identity in the face of a decision that legally stripped them of their agency. Though they could have a national identity, they were still limited by their citizenship as Bosnian or Croatian. Given the existence of border communities such as the Mishmis, along with Indians of Chinese descent deeper within India, these ethnic minorities

58 Id. 59 Navari, supra note 55, at 1310.

60 Gearóid Ó Tuathail & John O'Loughlin,

After Ethnic Cleansing: Return Outcomes in BosniaHerzegovina a Decade Beyond War, 99 Annals Ass’n Am. Geographers 1045 (2009).

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UCLA UNDERGRADUATE LAW JOURNAL could be at risk of such erosion of identity as well. Unrecognized by uti possidetis juris, their local realities would be ignored in favor of simplicity and effectiveness. The option for self-determinism, which the Mishmis in particular have lost already as border control solidified and their tribe was separated across country lines, would be further compromised. The ability for Indians of Chinese descent to feel as if they belong in the country in which they were born, to be able to identify as Indian and not purely as their ancestry, would be similarly compromised. These consequences display the detrimental effects of uti possidetis juris as it encourages future conflict and polarizes countries. This is directly relevant to its application to the Sino-Indian dispute, as this article will show in the next section D. Origins and Consequences of Uti Possidetis Juris 1. Relevance of Uti Possidetis Juris These are some conditions in which the principle of uti possidetis juris is commonly applied. The current state of the Sino-Indian dispute supports this application for conflict resolution under CIL. The boundary in dispute, the McMahon Line, existed during and after the British possession of India, it has a specific date of creation, it is both a legal and functional border for India, and India itself is a postcolonial state. 61 Additionally, the diplomatic method of treaties and agreements has failed, resulting in international experts questioning the utility of such methods in complex and high stakes realities. 62 Moreover, international appeals have been made for conflict resolution, by the U.S. as well as other states. 63 Given these results, it follows that a stronger, more consistently effective course of action is required. If an international arbitration were to be called upon, a likely result should the conflict continue to escalate, they would inevitably consider using uti possidetis juris. The use of the principle would

61 Kumar, supra note 38.

62 Utkarsh Pandey, The India-China

Border Question: An Analysis of International Law and State Practices, OBSERVER RES. FOUND. (Dec. 16, 2020), https://www.orfonline.org/research/theindia-china-border-question/.

63 Id.

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT overcome the diplomatic issues and assuage international concerns.

Furthermore, the use of the doctrine would, technically speaking, solve the issue. If the international courts were to make the McMahon Line legally and internationally binding, the conflict would effectively end as a matter of law, as the boundary would be legally recognized. It would “freeze-frame” the McMahon Line as it stands, awarding the territory as India desires, rather than China. The fact that the McMahon Line would be upheld in the modern day if uti possidetis juris were to be applied further indicates that the doctrine would prolong the long-term impacts of the divisive process of colonialism, rather than rectify them and confer stability.

2. Effects of Uti Possidetis Juris on Sino-Indian Relations and the Colonial Legacy The application of uti possidetis juris would make the mitigating elements of the Sino-Indian case inconsequential and further complicate Sino-Indian relations. These mitigating elements include the secrecy around the creation of the McMahon Line, the recursive violence between the countries, and China’s resolve to reject the legitimacy of the boundary, all of which would be irrelevant if uti possidetis juris were applied. These specific elements are key for understanding why the conflict even exists. If they are entirely undermined, the resulting legitimization of the line would reinforce the idea that India’s borders and its national identity are a product of colonial development. Despite Indian claims that the line is the legal boundary, the fact remains that the McMahon Line was created in order to protect British territorial interests by way of protecting Tibetan self-interest. 64 By the same token, the legitimization of the line would imply that Chinese sovereignty is inferior to colonial legacies, as initially Britain had ignored Chinese demands in order to legitimize the McMahon Line. This minimized China’s international status and jeopardized their right to determine their own national borders, threatening their right to self-determination as a byproduct. To China, a powerful player in the

64

Westcott, supra note 3.

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UCLA UNDERGRADUATE LAW JOURNAL international order, this would be humiliating, a lasting reminder of the consequences of Western hegemony.

Applying this doctrine in an international court would also further complicate Sino-Indian relations, as China never officially agreed to the creation of the boundary. Such an arbitration would infringe on the assumed territorial sovereignty of the state, and solidifying boundaries that a nation has historically rejected without compromise comes with its own issues. Given the recursive violence that uti possidetis juris can elicit, as shown in the Yugoslavia case, the application of the principle would most likely serve to perpetuate a conflict that already exists. As there is no legitimate enforcement mechanism to uphold the findings of international courts, should an economic and military powerhouse like China decide to ignore the ruling, there is little the international courts can do without involving other states. This utilization of uti possidetis juris as a resolution tactic, likely fostering further disputes, would thus be orthogonal to the core tenets of the United Nations and the international courts: peaceful relations and international security. 65 3. Contradictions with Local Realities Another major issue with the application of CIL and uti possidetis juris is that colonial cartography often did not align with geographical realities, as posited earlier. In Ladakh, a recent history revealed that colonial-era geographical surveys did not often match the precise nature of cartography, nor the local understandings of the delimitations of the territories. 66 The Ladakh region proved a formidable foe in border creation for years, as British cartographers operated under outdated geographical principles of natural and artificial boundaries. 67 The creation of the McMahon Line relied on these same outdated principles, resulting in inconsistencies between maps and reality. Coupled with the harsh conditions of the mountain ranges upon which it was superimposed, 65 66

U.N. Charter art. 1, ¶ 1.

Alyssa Ayres, The China-India Border Dispute: What to Know, COUNCIL ON FOREIGN RELATIONS (June 18, 2020), https://www.cfr.org/in-brief/china-india-border-dispute-whatknow.

67 Kyle Gardner, Moving Watersheds, Borderless Maps, and Imperial Geography in India's Northwestern Himalaya, 62 Hist. J. 149 (2019).

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT the outcome was a line with neither visible physical demarcations nor accurate cartographical ones. 68 The use of uti possidetis juris would thus legitimize a boundary that could shift with a simple change in snowfall, undermining its promise to stabilize borders. The secondary impact of this is the legitimization of a boundary created, once again, without regard for the communities that were colonized. Beyond a geographic mismatch, these colonial borders were created to serve the needs of a colonial power, and international recognition of the boundaries would give credence to the colonizers themselves. Conclusively, the application of uti possidetis juris creates more problems than it solves, particularly in the case of the Sino-Indian border conflict. However, there are alternatives to this principle, despite its ubiquity in CIL. III. A Better Solution: An Alternative to Uti Possidetis Juris The previous case studies, along with the analysis of uti possidetis juris in the context of the Sino-Indian conflict, portray CIL as a simple and satisfactory mechanism for all parties involved. They also serve as powerful criticisms of the utility of a colonial method of problem-solving in a postcolonial era. Uti possidetis juris not only has a tendency to preserve colonial interests during occupation, but also in the interim and post-occupation. Its professed goal to avoid conflict and establish a space for self-determinism is often not the outcome that is realized. Its use initiates a cycle of protracted interstate and intrastate violence.

Far from the pragmatic solution that operated in accordance with equity infra legem, it perpetuates legacies such as inattentiveness to geographical realities, community displacement and restructuring, and identity conflicts. There are, however, better solutions than a constant application of CIL and uti possidetis juris. The next sections will discuss the standing dialectic in opposition to traditional CIL, better known as Third World Approaches to International Law, the merits of the alternative method of adjudication that were mentioned earlier in the paper, and recommendations for resolution of the Sino-Indian border conflict.

68

E. Burke Inlow, The McMahon Line, 63 J. Geography 261, 267 (1964).

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UCLA UNDERGRADUATE LAW JOURNAL A. Third World Approaches to International Law The Third World Approaches to International Law (“TWAIL”) dialectic seeks to promote the application of a more fair and equitable interpretation of CIL to the developing world through the remediation of weaknesses in the framework.69 1. TWAIL’s Criticisms of CIL TWAIL posits that the framework of CIL values western hegemony over the self-determination of the Third World. Third World data and experiences are often superseded by Western understandings of borders and the interests of former colonial powers. 70 Indeed, the ICJ conceded that uti possidetis juris subordinates self-determination in favor of the legitimization of colonial boundaries.71 In the case of the Sino-Indian dispute, this is problematic as it disregards both China and India’s sovereignties. This issue’s remediation would make self-determination the primary concern of border arbitration, allowing the consideration of the mitigating factors of the Sino-Indian case mentioned prior.

TWAIL also makes an appeal for wider participation in policy implementation. 72 Essentially, by allowing subgroups affected by international affairs to participate in policy implementations such as the resolution of border disputes, TWAIL scholars believe that enduring stability will likely follow. 73 Affected minorities have a motivation to ensure the stability of their region and, in the case of border disputes, their participation will all but guarantee this outcome. With respect to the Sino-Indian dispute, a reliance on border communities could guarantee the territorial stability that military aggression cannot.

These criticisms of CIL reveal a discourse that seeks to grant the Third World more influence and favor in applications of international law. By resolving these primary weaknesses, some TWAIL scholars believe that principles such 69 Fidler, supra note 2.

70 Bhatt, supra note 25, at 10.

71 Burk. Faso/Mali, 1986 I.C.J. 72 Bhatt, supra note 25 at 11.

73 Id. at 12.

at 567.

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT as uti possidetis juris, so archaic and reliant on colonial conceptions of borders, will be replaced with more equitable and nuanced problem-solving. 74 In the end, the principal desire of TWAIL is to secure the supremacy of self-determination: something that CIL, with its reliance on uti possidetis juris and rigid principles of border dispute remediation, cannot fulfill. 75 B. An Application of TWAIL and Recommendations for the Sino-Indian Conflict The Rann of Kutch Arbitration is an application of the key tenets of TWAIL, a powerful testament to the importance of equity and nuance in the fair resolution of border disputes. It represents the potential in reforming CIL in accordance with tenets such as the prioritization of self-determination, the consideration of historical claims by ethnic minorities, and more nuanced evidence-based decision-making as a creative alternative for border resolution in the Sino-Indian dispute. The case was a dispute between India and Pakistan over the Great Rann of Kutch, a region between the two countries that both sides laid claim to. The tribunal created to arbitrate this conflict prioritized the needs of the Pakistani Sind communities resting in the Rann of Kutch and considered human and social welfare. Additionally, it accorded the appropriate weight to both sides of the dispute while centering the question of selfdetermination over territorial integrity in its legal argument. 76 The Tribunal considered historical claims from Pakistan emphasizing the long-lasting occupation of the region by the Sinds, colonial boundaries accepted by the British, maps and surveys, and the political and economic realities of the region. 77 They awarded 10% of the territory to Pakistan, displaying a deference to the substantiated legal authority of an ethnic group, the Sinds. 78 It also demonstrates the importance of self-determination to the Tribunal’s decision-

74

B. S. Chimni, The Past, Present and Future of International Law: A Critical Third World Approach, 8 Melb. J. Int’l. L. (2007).

75 James T. Gathii, TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography, 3 Trade L. & Dev. 26, 30 (2011).

76 J. Gillis Wetter, The Rann of Kutch Arbitration, 65 Am. J. Int’l. L. 346 (1971).

77 Id. 78 Id.

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UCLA UNDERGRADUATE LAW JOURNAL making process. A prioritization of territorial integrity, given India’s argument, would have resulted in 100% of the territory being awarded to India. As this was not the case, it is clear that self-determination was central to the adjudication.

While it is not popularly recognized as an application of TWAIL, the primary tenets underscoring the direction of the Tribunal can be attributed to the TWAIL rhetoric.

Thus, my recommendation for the resolution of the Sino-Indian border conflict is to combine the principal tenets of the TWAIL discourse with the precedent of third-party international arbitration. The success of the Rann of Kutch settlement calls attention to the importance of nuance and the consideration of all relevant factors to the peaceful resolution of border conflicts. The careful arbitration of complicated conflicts provides the scope to consider ethnic, economic, social, cultural, and political factors while simultaneously recentering the principle of self-determination. 79 More specifically in the context of the Sino-Indian dispute, this would recenter the important aspects of the conflict. For example, the colonial underpinnings of the McMahon Line, the historical claims of China, and the state of the communities caught in the crossfire would contribute to the larger, legal story of the dispute.

These considerations would prevent the outcomes discussed earlier if uti possidetis juris were to be applied. China would have the opportunity to overturn the corrupt colonial legacy that delimited its borders, while India could strengthen the legality of its borders and protect its territorial sovereignty.

Additionally, although TWAIL is a complicated and diverse theory, both China and India have been shown to subscribe to its tenets as a counterpoint to CIL. 80 Its application to their case would display an international commitment to the prioritization of people over territory, and the inclusion of third world perspectives as a buffer for Western hegemony. Given the existence of border communities such as the Mishmis and mixed-identity communities such as Indians of Chinese descent, a more inclusive arbitration would allow their concerns to be heard, mitigating the effects of border reconfigurations on their

79 Bhatt, supra note 25 at 13.

80 Pandey, supra note 62.

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UTI POSSIDETIS JURIS: A SOLUTION FOR THE SINO-INDIAN BORDER CONFLICT existence as minority groups. Self-determination for them would resemble unity in the former community and safety in the latter, two qualitative concerns that cannot be assuaged by CIL as it stands.

This approach allows for compromise as well: a concept that neither India nor China have had much success with through either pure diplomacy or military aggression. 81 In order to resolve a conflict with boundless history and tension, such an arbitration must replace the standard methods of CIL. Rather than relying on simplistic and rigid adherences to pre-existing frontier lines, which often elicits rather than prevents further conflict and furthers a colonial narrative, there must be fair consideration of all elements contributing to a case.

This methodology can also be generalized beyond the Sino-Indian affair. Its adaptability to various cases and the dominance of self-determination affords it intellectual weight. It is impartial, as third-party arbitrations should be, but still attuned to the drawbacks of CIL. The reform of standard third-party adjudication by shifting its focus to more meticulous metrics for border resolution will improve its ability to resolve border disputes peacefully and successfully.

Conclusion The state of the Sino-Indian border dispute today is complex; both countries remain at a crossroads. The burgeoning violence at the border makes military escalation for either side a simple decision, but such an outcome would produce catastrophic consequences. The need for peaceful border resolution is obvious, but its success is complicated by the diplomatic relations between the two countries as well as the drawbacks of CIL in border arbitration. Neither side has been able to draft a treaty and abide by it. However, the traditional method of border arbitration with its reliance on the outdated principle of uti possidetis juris will certainly have its own drawbacks. While it would superficially solve the issue, the fact remains that uti possidetis juris is a relic of colonialism that legitimizes colonial decisions, prioritizes territorial integrity over self-

81

Goldman, supra note 8.

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UCLA UNDERGRADUATE LAW JOURNAL determination, and makes violent conflict recursive. A modern solution to this problem that is discussed in this paper is the incorporation of TWAIL into standard arbitration procedures. In doing this, a myriad of diverse factors contextualizing the conflict can be taken into account. As has been argued, this can mitigate the consequences of standard CIL. The applications of CIL must be reformed to reflect the nature of the postcolonial world and resolve the SinoIndian conflict before it is too late.

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UCLA UNDERGRADUATE LAW JOURNAL Talia Boyadjian*

Criminalization of Homelessness: An Evaluation of Hostile Architecture ABSTRACT. The homeless population of the United States is under direct attack by local governments that are weaponizing hostile architecture against them. Antihomeless legislation has been found to be unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishment Clause due to cases like Martin v.

City of Boise, Anderson v. Portland, and Jones v. City of Los Angeles that have defined homelessness as a status. Local governments have thus resorted to hostile architecture—the modification of buildings, seating areas, and other aspects of public property with the intent of warding off specific, “undesirable” groups of people. Hostile architecture achieves the same goals previous unconstitutional antihomeless laws did. This Article argues that hostile architecture be held to the same standard as anti-homeless legislation as it is a violation of the Cruel and Unusual Punishment Clause and the fundamental right to travel. Formal legislation should also prohibit local governments from installing hostile architecture in the first place.

Finally, local governments should participate in the creation of more shelters and soup kitchens, which would provide a long-term solution to the issue.

*Talia Boyadjian is a third-year UCLA student studying History with a minor in European Studies. She plans on attending law school after graduation. There, she hopes to learn about digital property law amidst the advent of artificial intelligence. Talia would like to dedicate her article to all individuals experiencing home insecurity across the country.

Editor: Fatima Jaber is a fourth-year UCLA student studying Public Affairs with a minor in Disability Studies. She is currently an intern for a non-profit special education advocacy law firm and works closely with students with disabilities at the UCLA Extension Pathway Program. After graduation, she hopes to find work as a social worker before applying to joint graduate MSW/JD programs in the future.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction The homelessness crisis is the dark cloud that haunts the United States of America. A quick trip to any inner-city casts doubt on the promise of the American Dream. Homeless encampments stretch across sidewalks and homeless individuals walk the streets, many without adequate shelter to retreat to. Although homelessness is a worldwide phenomenon, the United States’ promise of individual prosperity and success stands in stark contrast to its urban reality—one characterized by the hardship of those who have no home of their own. Rather, the homeless population of America is forced to call public lands their home. Homeless individuals must either find space in a shelter or they are forced to sleep outdoors and endure the elements.

Homelessness in the United States has reached unprecedented levels. The United States Department of Housing and Urban Development (HUD) reported that the unsheltered homeless population rose seven percent between 2019 and 2020. 580,466 people experienced homelessness on any single night in 2020 alone, thirty-nine percent of whom also had no access to shelter. 1 This increase in the number of homeless individuals reveals that American cities are not doing enough to remedy this societal ill. Rather than improving the livelihood of the homeless, city governments have favored reducing the visibility of America’s most vulnerable. 2 In order to do so, they criminalize the basic activities of unsheltered homeless individuals and leave them no choice but to violate the laws. Some of these laws include bans on public camping, sleeping, sitting or lying down, and begging. 3 A 2019 National Law Center on Homelessness and Poverty survey found that laws disproportionately targeting homeless populations, such as camping bans, have increased by ninety-two percent since 2006. As a result, advocates have challenged these laws in court, arguing that they are violations of the Eighth Amendment’s Cruel and Unusual

1 UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, HUD Releases 2020 Annual Homeless Assessment Report Part 1, HUD.GOV (Mar. 18, 2021), https://www.hud.gov/press/press_releases_media_advisories/hud_no_21_04.

2 See, Joy H. Kim, The Case Against Criminalizing Homelessness: Functional Barriers to Shelters and Homeless Individuals' Lack of Choice, 95 N.Y.U. L. REV. 1153 (2020).

3 Id. at 1153.

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CRIMINALIZATION OF HOMELESSNESS: AN EVALUATION OF HOSTILE ARCHITECTURE Punishment Clause.4 The resulting decisions established homelessness as a “status,” or an involuntary characteristic of a person, rather than a voluntary action. Several cases such as the Johnson v. City of Dallas, have established homelessness as a status in order to protect homeless individuals from legislation aimed at restricting their life-sustaining activities. This is because penalizing individuals for characteristics outside of their control counts as a Cruel and Unusual Punishment. 5 After numerous district courts and the Ninth Circuit declared these laws unconstitutional in cases such as, Martin v. City of Boise, Anderson v. City of Portland, and Jones v. City of Los Angeles, municipal governments have had to come up with more creative ways to expel the homeless from sight. Instead, they are resorting to architectural strategies to keep certain groups of people away from public spaces.6 Some examples include benches with bars that divide the seating area or spikes that prevent lying down in the street. This hostile architecture directly impacts the homeless population by preventing them from executing life-sustaining tasks such as resting. 7 This article argues that hostile architecture violates the Eighth Amendment’s Cruel and Unusual Punishment Clause for disproportionately affecting the homeless. Some cities have ceased the creation of anti-homeless legislation, while others have used hostile architecture as a loophole to effectively banish homeless people from the public property on which they live.

Laws that distinctly and negatively impact those of a certain status, with no other benevolent or useful purpose, are unconstitutional. This includes anti-homeless legislation. So, courts should also recognize hostile architecture itself as unconstitutional, since cities are still targeting the homeless population and restricting their access to public areas. The creation of spikes on the street or dividers on a bench is not criminalization, but it is a punishment for having nowhere else to sleep.

4 Id. at 1153-54.

5 Id. at 1161.

6 See, Robert Rosenburger,

On Hostile Design: Theoretical and Empirical Prospects, 57 URB. STUD. J. 884 (2020).

7See, Chadalavada Karthik & Sanjiv E. Sripadma, Defensive Architecture — a Design Against Humanity, 6 INT'L J. OF ADVANCED RESEARCH, IDEAS, & INNOVATIONS IN TECH. 247 (2020).

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UCLA UNDERGRADUATE LAW JOURNAL Therefore, courts should evaluate and deem the creation of hostile architecture—the means to limit what the homeless can do and where they are welcome—unconstitutional. Section I of this article discusses the ways in which cities have criminalized the status of being homeless through anti-homeless legislation; it further explores these laws and the reasons why cities enforce them in the first place. Next, Section II defines the implications of “status,” why the law considers homelessness a status, and the subsequent implications this holds for the constitutionality of anti-homeless legislation. The article then discusses the obligation of the United States to uphold its commitments under international law and to ensure that all of its residents have the right to adequate housing. Section III describes court cases that found anti-homeless legislation in violation of the constitutional rights of homeless Americans, including Martin v.

City of Boise, Anderson v. City of Portland, and Jones v. City of Los Angeles. With this established, Section IV introduces hostile architecture, its different forms and purposes, and how cities weaponize it to get rid of their homeless population. In Section V, the article uses the state of Oregon as a case study for its adoption of hostile architecture as a loophole to achieve the same effects as anti-homeless legislation. Section VI discusses the legal argument against hostile architecture and details the various parts of the Constitution that it violates. The article focuses on two particular sections: the Fundamental Right to Travel and the Cruel and Unusual Punishment Clause. Finally, Section VII explores alternate solutions for reducing the unsheltered homeless population and alleviating the already difficult lifestyle of unsheltered homeless individuals.

I. Criminalization of Homelessness Cities have faced extra pressure to remove the homeless population from sight due to the recent rise in homelessness, as they seek to maintain a pristine and desirable view of their public places. 8 In order to deal with their homelessness crisis, various municipalities across the United States resort to criminalizing basic actions such as sleeping, sitting, lying, panhandling, and 8

See, Don Mitchell, The Annihilation of Space By Law: The Roots and Implications of Anti-Homeless Laws in the United States, 29 ANTIPODE 312-313 (2020).

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CRIMINALIZATION OF HOMELESSNESS: AN EVALUATION OF HOSTILE ARCHITECTURE loitering in public places. Unsheltered homeless individuals are left with no choice but to violate these laws, as they have no place else to go. A 2019 National Law Center on Homelessness in Poverty survey found that thirty-seven percent of American cities banned camping; twenty-one percent banned public sleeping; fifty-five percent banned sitting and lying down in public places; thirty-five percent banned loitering, vagrancy, and loafing; thirty-eight percent banned begging. 9 The rising number of homeless individuals, in tandem with the prevalence of anti-homeless legislation, indicates that local governments have not properly provided homeless people with shelter; instead, they have focused their efforts on actively reducing the visibility of the homeless population. Although cities will not admit who these laws are for, the legislation disproportionately harms unsheltered homeless individuals. The unsheltered population has nowhere else to sleep, nowhere else to conduct their lives ordinarily, and an entire population of homeless people learn that they are not allowed to live in certain parts of this so-called “free” country.10 Certain economic factors have influenced local governments to push for the removal of their homeless populations. The presence of poor and homeless individuals is often perceived as the cause behind a city’s decline in success and prosperity. Nonetheless, the truth is that homelessness is a symptom of poorly run cities, not the cause of their deterioration. 11 Still, as a capitalist country, the United States is determined to maintain its cities’ profitability. City governments have essentially determined that monetary gain outweighs the benefits of assisting homeless individuals. For instance, an urban center may provide homeless people with a place to sleep, bathe, or beg. However, through anti-homeless ordinances and removing shelters or soup kitchens, the city eliminates fixtures for the homeless if they threaten finances or aesthetics and forces them away from bustling city centers. 12

9 Kim, supra note 2, at 10 Mitchell, supra note 11 Id. at 312.

12 Id. at 314-16.

1153.

8, at 313.

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UCLA UNDERGRADUATE LAW JOURNAL Cities have historically asserted that homeless beggars frighten housed people and prevent them from traveling into and frequenting cities, which municipal governments use as proof that the prevalence of the homeless threatens their finances. 13 This excuse has justified their removal because, without homeless people, there is more monetary value in the city and no one has to watch them beg. Therefore, these laws are not about fixing poverty issues—they are merely to preserve aesthetics.14 City governments criminalize the homeless population’s basic actions and leave them no choice but to relocate elsewhere. This causes many issues, as the Equal Protection Clause protects individuals from government discrimination. 15 II. Homelessness as A Status Preservation status of an individual is defined as an aspect of themself that is out of their control and that provides them with protections against criminalization. 16 The Supreme Court has established precedent in Robinson v.

California that the Eighth Amendment’s Cruel and Unusual Punishment Clause limits the criminalization and punishment of certain activities. 17 The Constitution places some of these limitations on the way laws must punish one’s conduct, not their identity or status, which they cannot control. For example, Robinson v. California overturned a statute that criminalized addiction. The Court found that this was a violation of the Eighth Amendment, as addiction comprised an individual’s status which the Court defined as being “chronic rather than acute; that it continues after it is complete and subjects the offender to arrest any time after he reforms,” in contrast with “conduct.” 18 Addiction is a disease that is out of the direct control of an individual, and their medical history should not justify their punishment. This ruling applies to homelessness as well; individuals are not homeless by choice and do not sleep in the streets by

13 Id. at 323.

14 Id. at 323-24.

15 Id. 16 Kim, supra note 17 Id. at 1161.

18 Id. at 1161.

2, at 1161.

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CRIMINALIZATION OF HOMELESSNESS: AN EVALUATION OF HOSTILE ARCHITECTURE choice, which is why there is a movement for courts to re-evaluate homelessness.

Courts are divided over whether or not to treat homelessness as a status.

While some rule that individuals are homeless due to voluntary action or that unsheltered homeless individuals could simply take up a shelter bed, there are issues with this argument. 19 For instance, shelter beds are often not practically available to homeless individuals. However, there is an alternative to this way of thinking: seeing homelessness as a status and that it is involuntary in nature. Not only are homeless individuals in such a state of poverty that is out of their control, but their living conditions are out of their control as well. 20 For instance, Johnson v. City of Dallas, a district court in Texas, ruled that criminalizing sleeping in public is a form of punishment on the basis of a homeless person’s status—a status that forces them to live their lives in public spaces. By criminalizing sleeping in public, the legislation was criminalizing sleep, a basic life function, for homeless individuals altogether.

A. American Obligation to Help the Homeless Throughout recent decades, the United States has continuously recognized housing as a human right, solidifying the fact that criminalizing homelessness is impermissible and, by extension, the creation of hostile architecture is as well.

The United States government signed numerous United Nations (UN) resolutions, such as the Universal Declaration of Human Rights in 1948 and, most recently, the New Urban Agenda in 2016, both of which declare that housing is a human right. 21 The United States also ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992 and the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) in 1994. These agreements enforce freedom from discrimination in housing based on one’s status. 22 Furthermore, the United States ratified the Convention 19 Id. at 1161.

20 Id. at 1163.

21 See, Eric Tars,

Housing as a Human Right, 2017 NATIONAL LOW INCOME HOUSING COALITION ADVOCATE’S GUIDE 13-15 (2017), https://nlihc.org/sites/default/files/AG2017/2017AG_Ch01-S06_Housing-Human-Right.pdf.

22 Id. at 13.

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UCLA UNDERGRADUATE LAW JOURNAL Against Torture (CAT) in 1994, which protects individuals from cruel and degrading punishments, including the criminalization of homelessness. 23 Finally, the U.S. Interagency Council on Homelessness (USICH), the U.S. Department of Justice (DOJ), and the U.S. Department of Housing & Urban Development (HUD) have all declared the criminalization of homelessness as a human rights violation. 24 Therefore, the United States has the responsibility to protect homeless individuals’ rights based on both their domestic protections and their international agreements.

Rather than following the federal government’s lead in taking steps towards providing the homeless with some form of shelter, local governments have turned to criminalizing basic activities of the homeless and installing hostile architecture to effectively banish them from public places. 25 Local governments’ anti-homeless laws and ordinances stand in opposition to the federal government’s stance that homeless individuals should not face discrimination and should have the right to adequate housing; they have not followed the precedent of the federal government at all. It is already clear that the Constitution and international law prohibit the criminalization of homelessness.

Therefore, the law must also recognize hostile architecture as a blatant violation of homeless individuals’ basic human rights and as a punishment for the homeless population.

III. Court Cases Against Criminalization The Eighth Amendment states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 26 Various court cases have established that laws disproportionately targeting the homeless population or denying them the right to sleep or camp violate this clause.

Among these cases are Jones v. City of Los Angeles, Anderson v. City of Portland, and Martin v. City of Boise, all three of which found that laws targeting 23 Id. at 13.

24 Id. at 13-14.

25 Kim, supra note 2, at 26 U.S. CONST. amend.

1152.

VIII.

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CRIMINALIZATION OF HOMELESSNESS: AN EVALUATION OF HOSTILE ARCHITECTURE homeless individuals’ basic life functions are unconstitutional when they have nowhere else to conduct their activities. The same logic made in these cases applies to hostile architecture. Hostile architecture restricts the homeless from spending time in the only place that they know as home: public property.

A. Jones v. City of Los Angeles The first of these court cases, from 2006, is Jones v. City of Los Angeles. This Ninth Circuit case found that the City of Los Angeles violated the Eighth Amendment after six homeless individuals were all arrested or cited on nights when they were unable to obtain a bed at a shelter. 27 Los Angeles had criminalized sitting, lying down, or sleeping on public streets and sidewalks at all times. 28 Therefore, this left the plaintiffs with no choice but to break the laws in question, and they challenged the city for violating their Eighth Amendment rights. The court agreed with their argument and decided in their favor, striking down Los Angeles’s laws targeting them. Furthermore, the court established homelessness as a status, as it is involuntary in nature.

B. Anderson v. City of Portland Challenges to the constitutionality of anti-homeless legislation began to proliferate. Three years after Jones, in Anderson v. City of Portland, a district court in Oregon established a similar ruling. The first law code in question was Portland City Code § 14A.50.020, which prohibited camping on public property. 29 The second law, Portland City Code § 14A.50.050, banned the installation of any temporary or permanent structure in public areas—excluding parks—or in the public right-of-way without city authorization. 30 The plaintiffs, all of whom were homeless, argued that the city of Portland’s camping and temporary structure bans criminalized the status of homelessness and the city singled out its unsheltered homeless population to face harsher treatment. For

27 Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006).

28 LOS ANGELES MUNICIPAL CODE § 41.18 (2005).

29 PORTLAND, OR., PUBLIC ORDER AND POLICE CODE § 14A.50.020 (2002).

30 P.C.C. § 14A.50.050 (2002), https://www.portland.gov/code/14/a50/050.

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UCLA UNDERGRADUATE LAW JOURNAL example, the plaintiffs recalled instances in which law enforcement prevented them from lying down in the street, even though some of them had physical disabilities that compelled them to do so.31 The court then found that the city violated the Eighth Amendment’s Cruel and Unusual Punishment Clause with these ordinances, as it was unreasonable to penalize the homeless for resting on public property.

C. Martin v. City of Boise Martin v. City of Boise was another landmark Ninth Circuit case that determined that Boise’s laws unfairly targeted their homeless population.

Again, in this case, the court found the city of Boise in violation of homeless individuals’ rights under the Eighth Amendment’s Cruel and Unusual Punishment Clause, as the plaintiffs punished in this case had no practical alternate place to rest.

Boise law enforcement cited the six plaintiffs for violating one or both of two city ordinances. The first, Boise City Code § 7-3A-2, or the Camping Ordinance, made it a misdemeanor to use public spaces as a camping site at any time. 32 The second, Boise City Code § 5-2-3, or the Disorderly Conduct Ordinance, prohibited sleeping in any building or public place without the permission of the owner, whether it is public or private property. 33 The court found that these ordinances were a violation of the Eighth Amendment because no shelter beds were “practically available” at the time that could have kept the plaintiffs from sleeping in the streets. 34 While this case was only binding to the Ninth Circuit, more than half of the American unsheltered homeless population resides in California, which falls under its jurisdiction. 35 Each of these cases solidify the argument against hostile architecture and strengthen the characterization of homelessness as a status. Jones v. City of Los 31 Id. at 8.

32 Boise C.C.

§ 7-3A-2 (2019), https://codelibrary.amlegal.com/codes/boiseid/latest/boise_id/0-0-0-7636#JD_7-3A-2.

33 Boise C.C. § 5-2-3 (2019), https://codelibrary.amlegal.com/codes/boiseid/latest/boise_id/00-0-5341#JD_5-2-3.

34 See, Kim, supra note 2, at 1155.

35 Kim, supra note 2, at 1156.

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CRIMINALIZATION OF HOMELESSNESS: AN EVALUATION OF HOSTILE ARCHITECTURE Angeles is the earliest example of a court determining that anti-homeless ordinances are unconstitutional, setting a precedent for future courts to follow.

Anderson v. City of Portland solidified the fact that homelessness is considered a status in the court of law; this is especially important in the prevention of antihomeless legislation and future court cases concerning them. Finally, Martin v.

City of Boise is important due to the fact that it is a Ninth Circuit court case, meaning the ruling that struck down anti-homeless legislation applied to a vast region of America. As these court cases begin to tie their hands, cities must think of new ways to expel their homeless populations. This led to the proliferation of hostile architecture—a quieter way of shunning the homeless from public spaces.

IV. Hostile Architecture Defined Hostile architecture is defined as buildings, public spaces, or public fixtures that discourage individuals from touching, climbing, or sitting on them. 36 The use of hostile architecture began in the nineteenth century in an effort to stop public urination on the walls of churches. Today, its aim has morphed into entirely removing “undesirable” groups of people from the public eye; this especially applies to homeless people. 37 Local governments have employed various types of hostile architecture— all of which stand in the way of a homeless individual performing everyday activities. Cities may place armrests on benches that divide the middle seating, or spikes on ledges just about anywhere, from the windowsill of a building to a low wall around a park; both of which prevent homeless individuals from resting or lying down. 38 Surveillance cameras are another example of hostile architecture. Although cameras might act as a deterrent to unlawful behavior, they also give individuals the impression that they are under scrutiny, effectively shaming them from loitering in certain areas. Similarly, sprinkler systems that run in the late hours of the night ward off unsheltered homeless individuals

36 See, Haley Starolis, Hostile Architecture: The Death of Urban Spaces, 86 CRIT 53, 54 (2020).

37 See, Aubrey Bader, Hostile Architecture: Our Past, Present, & Future? 86 CRIT 48 (2020).

38 Rosenberger, supra note 6, at 884-85.

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UCLA UNDERGRADUATE LAW JOURNAL attempting to sleep in public. 39 Finally, locked trash bins discourage the act of picking for food or other products, which blatantly disallows homeless individuals from feeding themselves—even if the dish is garbage. 40 While these are merely a few examples of hostile architecture, they establish its core characteristics. Like criminalization, hostile architecture’s goal is to rid public spaces of homeless individuals. However, hostile architecture is far more difficult to critique due to its unwritten nature.

V. Oregon’s Path to Hostile Architecture Oregon is the perfect example of a local government using hostile architecture as a loophole for criminalizing homelessness. Following the Martin ruling, the state of Oregon had to address its violations of homeless individuals’ Eighth Amendment rights. A new state law, HB3115, says: “local law regulating sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.” 41 As of 2021, cities such as Portland have two years to comply with this new state law. HB3115 should have been a victory for homeless rights. However, the issue of homelessness persists, and cities still want to expel them from the public eye.

After Martin restricted cities' abilities to enact anti-homeless legislation, Portland has begun reducing the presence of its homeless population through implementing hostile architecture. In an effort to keep unsheltered homeless campers off their property, the Oregon Department of Transportation has spent over one million dollars in less than ten years on placing boulders on the side of the road. The boulders occupy what was once empty space—a prime location for unsheltered individuals to rest. This so-called “rockscape landscaping” has cropped up in at least six locations in Portland alone 42. Boulders are not the only 39 Id. at 886.

40 Id. at 886-87.

41 H.B. 3115, 81ST LEG. ASSEMB., REG. SESS. (Or. 2021).

42 Rachel Monahan, Oregon Officials Deter Portland Homeless

Campers With a Million Dollars’ Worth of Boulders, WILLAMETTE WEEK (June 2019), https://www.wweek.com/news/city/2019/06/19/oregon-officials-deter-portland-homelesscampers-with-a-million-dollars-worth-of-boulders/.

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CRIMINALIZATION OF HOMELESSNESS: AN EVALUATION OF HOSTILE ARCHITECTURE problem facing homeless individuals, though. The city of Portland also erected concrete flower planters on the ends of certain bridges to deter sleeping there. 43 Oregon, under restrictions based on Ninth Circuit rulings that have determined the unconstitutionality of anti-homeless legislation, is faced with an increasingly worsening homelessness problem. Rather than implementing constructive changes that would improve the lives of the homeless population, Portland’s city government has opted to reduce their visibility. The boulders and concrete planters that prevent individuals from sleeping in certain areas achieve the same goal as anti-homeless legislation: to both limit the movement and inhibit life-sustaining activities of the homeless. This is why hostile architecture should be held to the same standard as anti-homeless legislation, as both constitute a cruel and unusual punishment against the homeless population.

VI. Hostile Architecture: An In-Depth Analysis of Its Unconstitutionality The goals of hostile architecture are to reduce the presence of select groups of people and deny them the ability to survive—including the homeless populations of cities. Hostile architecture disproportionately affects homeless individuals, so it is important to protect their rights as Americans.

The Cruel and Unusual Punishment Clause of the Eighth Amendment is meant to protect all Americans from the government’s oversteps. The Eighth Amendment does not define what type of exact punishment is “cruel and unusual,” though, leaving room for interpretation. 44 As established above, laws that criminalize the “status” of individuals, including the “status” of homelessness, are unconstitutional under this clause. 45 Therefore, the law should recognize hostile architecture as a cruel and unusual punishment leveled against the homeless, since it bans unsheltered people from frequenting areas that they have no other choice but to occupy. Homeless individuals cannot 43 Id. 44 Everything

You Need to Know About Your Eighth Amendment Rights, HOW TO JUSTICE (last visited Mar. 10, 2022), https://howtojustice.org/going-to-prison/your-eighth-amendmentrights/.

45 See, Hannah Kieschnick, A Cruel and Unusual Way to Regulate the Homeless: Extending the Status Crimes Doctrine to Anti-Homeless Ordinances, 70 STAN. L. REV. 1569, 1584 (2018).

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UCLA UNDERGRADUATE LAW JOURNAL control their needs to sleep, rest, or even simply exist in public places because they have nowhere else to go.

Hostile architecture is not written explicitly in law or in city ordinances.

They are quiet “city improvements” that municipal governments enact.

Portland’s boulders dot the landscape in the city, and are written off as “rockscape landscaping,” rather than what they actually are: physical barriers to keep the homeless away.46 Their sole goal is to remove the homeless from the side of the road, banishing their encampments to yet another street corner and resulting in a vicious cycle where homeless individuals are constantly turned away from community after community. Legislators are placing a band-aid solution on the systemic issue of homelessness in order to woo voters. 47 However, this band-aid solution comes at the cost of homeless individuals’ livelihood.

Preventing individuals from performing their life-sustaining tasks is unconstitutional. 48 Shelters remain one of the only places where cities expect homeless individuals to go. However, with shelters filling up more rapidly, local governments need to recognize the homeless population’s right to public property. Public property such as sidewalks, parks, and town squares are meant to be shared by all American citizens. 49 Homeless individuals are no exception to this. Furthermore, if local governments will not create more shelter space for the homeless, even in the face of rapidly increasing homeless populations, then they must expect homeless people to live, eat, and sleep in the streets. It is unethical to banish a homeless individual, let alone any human being, from the only place they are able to call home. This punishment is a result of hostile architecture, so hostile architecture itself is unconstitutional.

46 See, Monahan, supra note 50.

47 Rosenberger, supra note 6, at 889.

48 Kim, supra note 2, at 1154.

49 Access to Public Property, DIGITAL MEDIA LAW PROJECT

(Sept. 10, 2021), https://www.dmlp.org/legal-guide/access-public-property.

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CRIMINALIZATION OF HOMELESSNESS: AN EVALUATION OF HOSTILE ARCHITECTURE A. Fundamental Right to Travel All Americans have the right to travel freely under the Equal Protection Clause, and the law should not prevent access to any public areas for certain groups of people, such as the homeless. However, homeless individuals’ constitutional rights to free movement are violated when a city’s design banishes them from certain areas using hostile architecture. This is the conclusion that the Pottinger court reached in Pottinger v. City of Miami in 1992, when a federal district court evaluated Miami’s laws that prohibited sitting and lying in public places. 50 The court found that Miami’s laws restricting homeless people’s right to travel violated the Equal Protection Clause of the Fourteenth Amendment. 51 The Equal Protection Clause states: “No state shall… deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws.” 52 The court recognized that, in the absence of shelter beds, homeless individuals had no place else to conduct their harmless, everyday activities, such as sleeping. 53 The constitutional right to travel is important to consider when evaluating the legality of hostile architecture. Local governments are blocking off freeway underpasses, constructing invasive sprinkler systems, and rendering benches almost unusable, in order to restrict the areas where homeless individuals are allowed to occupy. However, it is as much their right to fully use public spaces as it is for any other American. Therefore, the Pottinger court’s ruling established that the Equal Protection Clause also protects homeless individuals’ right to travel. 54 Local governments are not allowed to limit the movement of individuals—including using hostile architecture to do so. It is unconstitutional to banish certain people from public spaces.

B. Cruel And Unusual Punishment

50 Pottinger v. City of Miami, 359 F. Supp.

51 Id. 52 U.S. CONST. amend. XIV. 53 Id. 54 Pottinger, 359 F. Supp. 3d at 1177.

3d 1177, 1179 (S.D. Fla. 2019).

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UCLA UNDERGRADUATE LAW JOURNAL As solidified in countless court cases, homelessness is a status. 55 It is a violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause to punish someone on account of their status. Additionally, under the precedent of past court cases, such as Martin v. City of Boise, Anderson v. City of Portland, and Jones v. Los Angeles, it is unconstitutional under the Cruel and Unusual Punishment Clause to criminalize the life-sustaining actions of homeless individuals due to their status. This applies to hostile architecture as well.

The unconstitutionality of hostile architecture is clear when evaluated as a punishment for the status of homelessness. As previous court cases established, it is unconstitutional to restrict the public actions of homeless individuals if there is no feasible alternative. One example of hostile architecture previously mentioned are the locked trash bins that dot cities; it is therefore unconstitutional to lock trash bins if homeless individuals have no alternative way to obtain food. The same applies to anti-homeless benches that prevent individuals from sleeping. Homeless individuals’ status forces them to eat and sleep in public, meaning it is unconstitutional to hinder them from doing so unless there is a viable alternative. The precedents imply that, if homeless individuals cannot feasibly attend a shelter and obtain a shelter bed, it is unlawful to create benches that would prevent them from sleeping. This argument extends to any form of hostile architecture, as they all serve as punishments towards homeless individuals for having to live out their lives in public against their will.

VII. Hostile Architecture: An In-Depth Analysis of Its Unconstitutionality The most effective way to combat hostile architecture is to call for the prohibition of hostile architecture when shelter beds are inadequate. Courts should consider the prohibition of certain groups of people from participating fully in public spaces, as it is a violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause. To ensure that there is equal treatment of

55

Anderson, Civ. No. 08-1447-AA at 2.

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CRIMINALIZATION OF HOMELESSNESS: AN EVALUATION OF HOSTILE ARCHITECTURE homeless individuals across the country, courts, from the district level all the way to the Supreme Court, should rule that municipal and state governments are prohibited from installing restrictive architecture on public property. This would include benches with dividers, locked trash bins, or spikes on ledges.

Homeless individuals are worthy of their own protections in the eyes of the law in order to prevent further infringements. City ordinances must explicitly allow homeless individuals to rest, eat, and perform other life-sustaining activities in public. This would prevent any future attempts from local governments to impede upon the movement of homeless individuals and to expel them from the public eye.

The movement to establish access to all public spaces for all individuals and the prohibition of hostile architecture has already begun via petitions. Housed and unhoused Americans alike call for cities’ commitments to remove all hostile architecture and allow all individuals to partake in urban life. 56 City governments who prohibit hostile architecture can move towards normalizing unsheltered homeless individuals’ use of public property. While this does not address the crisis of extreme poverty, it restores the rights of homeless individuals to use public property to carry out their everyday routines.

A more long-term solution is the creation of more homeless shelters and public kitchens. Government programs that facilitate sustainable solutions, such as ones that help homeless individuals pursue careers and obtain permanent housing, may also aid the homeless crisis—the ultimate driving force behind the creation of anti-homeless legislation and architecture.

A. Pottinger’s Solution Pottinger v. City of Miami, which recognized anti-homeless legislation as a violation of the constitutional right to travel, enacted effective solutions that can apply to the fight against hostile architecture. The court established two safe

56

See, Jamie Penn, HomesNotStones, THE ACTION NETWORK: PETITION (last visited Mar. 10, 2022), https://actionnetwork.org/petitions/homesnotstones/.

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UCLA UNDERGRADUATE LAW JOURNAL zones for homeless individuals to eat, sleep, and perform all other life-sustaining activities in public, free from threat of arrest. 57 The creation of safe zones is a viable solution to hostile architecture, albeit short-term. Local governments can establish certain areas, such as public parks or even places hidden from city centers, which do not have any hostile architecture. There, homeless individuals can avoid modified benches, sprinkler systems, and locked trash bins. Over time, local governments should use this opportunity to construct more shelters and provide more beds and resources for homeless individuals, eventually removing the need for hostile architecture altogether.

Conclusion The harsh reality of the situation is that homeless individuals have nowhere to go. While housed people return home to their warm beds when they tire, homeless individuals have no refuge. Many times, shelters do not provide this type of refuge, as they cannot accommodate various disabilities, religions, or extended stays.58 Homeless individuals are forced to sleep outdoors and endure the elements.

Cities prevent homeless individuals from occupying most public areas via hostile architecture, prohibiting their very existence. When an individual’s only bed is the bench at the park on the corner, where can they go if that bench suddenly has a metal bar preventing them from resting? Where can they go when there are no community kitchens, and cities place locks on the dumpsters?

Where can they go when the newly installed security cameras scrutinize their every move? Many cities have responded: not there. Homeless individuals may not retreat to the freeway underpass or into that dark alley—local governments have made that clear with the installment of fences. The list goes on, as the proliferation of hostile architecture has made the once-promising verdicts of Martin v. City of Boise, Anderson v. City of Portland, and Jones v. City of Los

57 Pottinger, 359 F. 58 Kim, supra note

Supp. 3d at 1177.

2, at 1176.

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CRIMINALIZATION OF HOMELESSNESS: AN EVALUATION OF HOSTILE ARCHITECTURE Angeles—cases immortalized for standing up for the rights of one of the most vulnerable groups in the country—seem ineffective and futile.

Courts must hold hostile architecture to the same legal standards as antihomelessness laws, or else it will lead to the further removal of homeless individuals from urban spaces. The placement of boulders and modified benches is not harmless, and it is not for aesthetics—it is to remove homeless populations from view. Hostile architecture limits where homeless individuals can eat, sleep, or simply exist. Punishing these life-sustaining activities constitutes cruel and unusual punishment; previous verdicts have proven this in regard to antihomeless legislation. These decisions should extend to hostile architecture.

Even though the discriminatory actions aimed at unsheltered homeless individuals stand as a violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment, local governments continue to banish them from public places and infringe on their rights. Homeless people exist, and they need to sleep and eat like any other ordinary human being. They do not deserve to be hidden.

Rather, they deserve to be helped.

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UCLA UNDERGRADUATE LAW JOURNAL Micah Mekbib∗

The FBI Agent in Your Phone: The Legality of Mass Surveillance and Its Capitalism ABSTRACT. Every day, millions of Americans unknowingly relinquish their autonomy and right to privacy to surveillance capitalism, a burgeoning economic market that is founded upon the extraction of behavioral data in the digital world. Big Tech are the pioneers of this industry; their algorithms have perfected systems to store user data, apply it to predict users’ future behaviors, and track patterns. This article makes two

main claims upon legal grounds; it first argues that the U.S. government has jeopardized Americans’ right to privacy and has undermined democratic processes since it entered an era of mass surveillance in the early 2000s. A lack of judicial oversight over the operations of public surveillance agencies has resulted in continued privacy violations on behalf of the state. Secondly, this article posits that Big Tech violates the right to self-determination by manipulating users’ information context online with surveillance capital, diminishing their individual autonomy. In line with its pro-surveillance standards, the U.S. federal government has historically failed to apply judicial oversight and digital privacy legislation to mitigate these civil infractions by public and private actors. This problematic interaction between the state and private interests generates an economic environment in which Big Tech may exploit users as it pleases.

∗ Micah Mekbib is a fourth-year political science and philosophy student at UCLA. She is involved on campus in the Kappa Alpha Pi Pre-Law Co-Ed Fraternity and Hip Hop Congress.

She plans on attending law school after her gap year to combat mass incarceration and advocate for transformative justice. Micah thanks her editor, Ali Pond, for her invaluable commitment and contributions to making her article the best it can be.

Editor: Ali Pond is a third year Political Science and Spanish double major at UCLA. Outside of the Undergraduate Law Journal, she works as a grant writer for Los Angeles Walks, a local pedestrian advocacy non-profit. Ali also serves as a Peer Learning Facilitator for UCLA's Undergraduate Writing Center.

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM Introduction The Internet has dramatically transformed our relationships with each other and our environment; social networking has an unprecedented capacity to circulate a diversity of perspectives and knowledge. Simultaneously, however, its potential for commodification makes it a vessel for private malpractice amidst the prioritization of profit and power. 1 A lack of legislative accountability affords Big Tech access and influence over intimate aspects of users’ lives through data collection and commodification, otherwise known as surveillance capitalism.

Wielding caches of data that detail the likes, dislikes, purchase histories, locations and political leanings of its users, Big Tech profits by selling user information to other private interests seeking to optimize their marketing schemes. In turn, corporations and political actors gain influence over users’ opinions and choices. In this way, the aggregation and commodification of behavioral data by Big Tech necessarily violates users’ codified rights to privacy and self-determination. 2 As of now, these rights as they relate to data collection remain unaccounted for in U.S. legal codes, making the state complicit in these offenses.

Due in part to the repercussions of 9/11, technology companies’ mechanisms for broad surveillance serve not only private entities but also the interests of state institutions. Initially conceived to prevent terrorism, the liberal surveillance standards set after 9/11 created a mutual aid network between the private technology sector and the state known as the surveillance-industrial complex. 3 Within this framework, most privacy laws and provisions in the U.S. are business-model affirming, meaning that they are preferential to the interests of the technology sector. 4 In fact, U.S. citizens are not protected by a singular federal law to ensure all their data privacy but rather rely on an amalgamation of

1

Germán Reyes, Leveraging behavioral insights in the age of big data, World Bank Blogs (May 31, 2017), https://blogs.worldbank.org/latinamerica/leveraging-behavioral-insights-age-big-data.

2 SHOSHANNA ZUBOFF, THE AGE OF SURVEILLANCE CAPITALISM: THE FIGHT FOR A HUMAN FUTURE AT THE NEW FRONTIER OF POWER (2019).

3 Exec. Order No. 13,381, 3 C.F.R § 180 (2005), reprinted as amended in 50 U.S.C § 1802 (2010).

4 Ben Hayes, The Surveillance Industrial Complex, The Routledge Handbook of Surveillance Studies 167 (Kirstie Ball, David Lyon, & Kevin D. Haggerty eds., 2012).

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UCLA UNDERGRADUATE LAW JOURNAL various state laws. 5 In addition to violating the right to self-determination via surveillance capitalism, both private technology companies and public agencies undermine constituents’ right to privacy through mass surveillance.

The legal failings of the state and the resulting corporate malpractice have negative implications for democracy. Specifically, the uninhibited collection of intimate user data by both state and private actors violates the right to privacy, while its commodification violates the right to self-determination in that it enables Big Tech to shape information contexts to influence political and personal choices. Together, the violations of these actors necessarily endorse the epistemic coup, or coup of knowledge, which is currently eroding the liberal values and electoral rights that are integral to American democratic institutions. 6 In Part I, this article describes the explosion of pro-surveillance policies in the U.S. in recent decades. It simultaneously posits that the state violates the right to privacy and, in doing so, destabilizes modern democratic societies. Part II outlines how surveillance is utilized by private technology companies and argues that surveillance capitalism is grounded in the extraction of human experience. Part III highlights how such companies commodify online users’ private experiences. It also argues that Big Tech can manipulate users’ Internet exploration from using their digital behavioral data, eroding their right to selfdetermination. In Part IV, this article argues that current legislation does not only fail to mitigate the implications of surveillance capitalism, but also protects the interests of government intelligence agencies and Big Tech in a relationship called the surveillance-industrial complex. Part V introduces legal recommendations to address concerns of the state-led invasion of privacy, public corporations’ violation of the right to self-determination, and the relationship between these sectors.

5

Thorin Klosowski, The State of Consumer Data Privacy Laws in the US (And Why It Matters), N.Y. TIMES (Sep. 5, 2021), https://www.nytimes.com/wirecutter/blog/state-of-privacy-lawsin-us/.

6 Shoshana Zuboff, You Are Now Remotely Controlled, N.Y. TIMES (Jan. 24, 2020), https://www.nytimes.com/2020/01/24/opinion/sunday/surveillance-capitalism.html.

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM I. Pro-Surveillance Government Violates Privacy Since 2001, the right to privacy has been violated through mass surveillance in the U.S. The September 11th terrorist attacks birthed a new era of a prosurveillance state characterized by invasive policies that promised higher levels of national security against similar threats. Regardless of the reasoning behind its political endorsement, mass state surveillance violates the right to privacy within the context of data privacy and property protection. The dispossession of users from their privacy right poses dire consequences poses long term risks to U.S. political stability, as it stands to erode democracy as we know it.

A. The Right to Privacy The first notion of a right to privacy doctrine in the U.S. is derived from the 1890 law review article of the same name by Warren and Brandeis. Their primary concern was preventing the harm that could result from public or private intrusion into the private thoughts and sentiments of individuals. While the protection of personal property is enumerated in the U.S. Constitution, Warren and Brandeis called for the recognition, the “right to be left alone,” or the right to choose what information to share with whom. 7 Surveillance directly undermines this conception because it dispossesses information from a user, who is then unable to choose where the information goes.

Despite Warren and Brandeis’ doctrine, no U.S. domestic legal documents or legislation explicitly protect the “right to privacy” as its own entity. 8 Legally, there does exist an implicit zone of privacy derived from the penumbras of the First, Third, Fourth, and Ninth amendments within the U.S. Bill of Rights. In other words, the rights guaranteed in various amendments inform a right to privacy: free speech protection (First), quartering of troops prohibition (Third), search and seizure protection (Fourth), and enumeration of other rights 7

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 195 (quoting Thomas M. Cooley, A Treatise on the Law of Torts) 29 (2d ed., 1888).

Sanda Suebert & Carlos Becker, The Democratic Impact of Strengthening European Fundamental Rights in the Digital Age: The Example of Privacy Protection, 22 GER. L.J. 31, 36 (2020) (discussing lacking legal protections for privacy in the U.S.).

8

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UCLA UNDERGRADUATE LAW JOURNAL (Ninth). This zone of privacy was first formally recognized in Griswold v.

Connecticut (1965) as the fundamental right to marital privacy under the aforementioned Bill of Rights amendments. 9 Various justices wrote concurring opinions deriving the right of privacy from the Fourteenth Amendment, citing both the Due Process Clause and general protections stipulating that federal laws cannot violate the first thirteen amendments. 10 While several amendments were referred to in this case, this section will focus on how the First and Fourth Amendments work in tandem to infer a right to digital privacy, such as the freedom of expression online and protection of private data. According to the majority opinion, a right is fundamental if it “is such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” 11 In labeling the right to privacy fundamental, the U.S. judicial system marked it necessary to the liberty and justice of U.S. citizens, two principles that inform democratic societies. A violation of the right to privacy is thus a violation of a basic human right in the U.S. Beyond derivations from Constitutional amendments such as the First and Fourth, there are various domestic privacy acts that set a legal precedent for data and informational privacy as an implied right. The Privacy Act of 1974 prevents the unauthorized disclosure of personal information held by the federal government, and grants individuals the right to be informed of any disclosures. 12 Other policies facilitated by the Federal Trade Commission (FTC), such as the Children’s Online Privacy Protection Act 13 and the Fair Credit Reporting Act, 14 protect consumers by mandating that corporations have explicit privacy policies.

9 Griswold v. Connecticut, 381 U.S. 479 (1965).

10 Id. (Harlan, J., concurring).

11 Id. 12 Privacy Act of 1974, 5 U.S.C. § 552a.

13 Children’s Online Privacy Protection Act (COPPA) of 14 Fair Credit Reporting Act of 1970, 15 U.S.C. § 1681.

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1998, 15 U.S.C. §§ 6501–6.

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM B. The Birth of a Mass Surveillance State and its Legality The aftermath of the September 11th terrorist attacks welcomed a new era of mass surveillance as a means of ensuring national security. The crisis engendered a state of surveillance exceptionalism in which the U.S. government granted itself the absolute power to intercept electronic communication in the name of national security. The first piece of legislation authorizing such surveillance was the USA Patriot Act (2001). The Patriot Act diversified the tools that intelligence agencies could use to investigate terrorism and modified privacy laws. Among other permissions, it most notably granted law enforcement the permission to conduct investigations and collect information in secrecy to avoid tipping off potential terrorists. 15 Despite its failure to be reauthorized in 2015, this new standard set a pro-surveillance precedent that would go on to validate the impending proliferation of mass surveillance tactics on both public and private fronts. 16 The Foreign Intelligence Surveillance Act (FISA) of 1978 is another piece of U.S. legislation that demonstrates a collapse of privacy protection. Prior to 9/11, the FBI and NSA (National Security Agency) had to obtain a warrant approved by the FISA Court in order to survey citizens through electronic communication. In 2002, President Bush granted the NSA the authority to bypass FISA approval and survey telephone calls and emails of U.S. citizens suspected of espionage without a warrant. Under the defense that Bush’s FISA amendments needed to remain private so as to not alert terrorist groups, these surveillance practices occurred unbeknownst to citizens until 2005. 17 Upon its publicization, scholars deemed this authorization as a violation of Americans’ protection from unreasonable searches and seizures as delineated in the Fourth Amendment of the U.S. Bill of Rights. 18 Although not expressly concerned with the zone of privacy in particular, these objections necessitated that lawmakers 15

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, PUB. L. No. 107-56, § 115 Stat. 272 (2001).

16 Lee Tien, The US Senate’s Patriot Act Fail, Electronic Frontier Foundation (May 28, 2015), https://www.eff.org/deeplinks/2015/05/us-senates-patriot-act-fail.

17 Exec. Order No. 13,381, 3 C.F.R § 180 (2005), reprinted as amended in 50 U.S.C § 1802 2010).

18 U.S. CONST. amnd. IV.

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UCLA UNDERGRADUATE LAW JOURNAL amend FISA on the grounds that the unregulated collection of information was unconstitutional.

In response, legislators passed Section 207, an amendment to FISA, in 2008. Although Section 207 sought to address FISA’s unconstitutionality, it actually made space for more explicit violations of the right to privacy by setting a dangerous precedent in incidental date collection. The amendment removed the state’s authority to surveil Americans “suspected of espionage” and collect domestic intelligence. Instead, it allowed the U.S. government to intercept electronic communication of only non-Americans to collect foreign intelligence. 19 Section 207 aims to prevent intelligence agencies from surveying Americans, but it fails; the amendment has clear loopholes that leave U.S. citizens vulnerable to the implicit privacy protections provided for in the Fourth Amendment. U.S. electronic surveillance is so broad that it commonly collects communications of Americans as it does foreign intelligence. Such Americans include those that communicate with targeted foreigners, or merely happen to be caught by the sweeping net of surveillance systems.20 This sort of collection is deemed “incidental,” a by-product of a larger effort. Crucially, when surveillance can be so easily excused as incidental, it becomes permissible under Section 207. In this way, FISA Section 702 creates a mere illusion of privacy that obscures the reality of invasive American surveillance.

More recently, the Foreign Intelligence Surveillance Court (FISC) has decided several rulings in the years following the terrorist attacks regarding the legality of bulk collection of metadata. In a since-redacted case, Federal Judge Bates noted that the government recognized that the NSA had “exceeded the scope of what the government had requested and the FISC had approved.” 21 Despite this admission, the U.S. government still sought authorization from the 19

Pub. L. 95-511, §702, 50 U.S.C. § 1881a, added by Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, PUB. L. No. 110-261, §101(a), 122 Stat. 2438 (2008).

20 OVSC1203: FISA Amendments Act (FAA) Section 702 Training Course Syllabus (Aug. 16, 2016) (on file with the Office of the Director of National Intelligence), https://www.intel.gov/assets/documents/702%20Documents/declassified/ACLU%2016-CV8936%20RMB%20001.01-001049%20-%20Doc%2017%20NSAs%20Training%20on%20FISA%20Amendments%20Act%20Section%20702_OCR.pdf.

21 U.S. Foreign Intelligence Surveillance Ct. Redacted Memorandum Opinion, at 9 (on file with the Office of the Director of National Intelligence), https://www.dni.gov/files/documents/1118/CLEANEDPRTT%202.pdf.

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM FISC to search through the bulk of data, despite its unlawful acquisition.

Furthermore, the government declared that monitoring the unlawfully collected information was necessary for their “strong national security interest.” 22 In his defense for permitting the government access, Judge Bates noted the “good character” of NSA officials to remain within the confines of law. Subsequently, Judge Walton of the FISC noted that the government was still failing to adhere to FISC requirements regarding intelligence collection on the Internet and via telephone communications. 23 Perhaps the government’s largest breach of the right to privacy was revealed in 2012, when former NSA contractor Edward Snowden leaked a classified internal audit to the public. The audit detailed that the NSA had overstepped its legal authority over two and a half thousand times between April 2011 and May 2012. Most infractions were FISA violations, presidential executive order violations, and seemingly careless operator errors that led to the unintended interception of U.S. telecommunication. 24 For example, a “large number” of calls were intercepted when the program unintentionally confused the U.S. area code 202 with 20, the international dialing code for Egypt. 25 The NSA additionally failed to inform the FISC of a “new collection method” that had been in use for some time and was later ruled by the FISC as unconstitutional. 26 This audit was not shared with Congress nor the FISC prior to its leak, and there was even evidence that personnel were instructed to generalize language in reports to the U.S. Justice Department about NSA operations. 27 The NSA’s operations took provisions for data collection beyond their authority and violated Americans’ privacy in the process.

22 Newll, supra note 18, at 491.

23 Id. at 491.

24 Barton Gellman, NSA broke privacy

rules thousands of times per year, audit finds, WASHINGTON POST (Aug. 15, 2013), https://www.washingtonpost.com/world/national-security/nsa-brokeprivacy-rules-thousands-of-times-per-year-audit-finds/2013/08/15/3310e554-05ca-11e3-a07f49ddc7417125_story.html.

25 Id. 26 Id. 27 Id.

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UCLA UNDERGRADUATE LAW JOURNAL Even when surveillance policies are appropriately checked by the judicial branch, courts are dismissive of allegations that rights, such as those delineated in the First and Fourth Amendments, have been violated by surveillance. In ACLU v. NSA (2007), the Sixth Circuit ruled that the First Amendment protection of public speech and free exchange of ideas were not jeopardized when the state listened to private conversations nor was the Fourth Amendment protection of intrusion into personal lives and effects. 28 The court concluded that the plaintiffs, the ACLU, did not have the adequate standing to contend that there were violations because they could not prove that secret government surveillance had targeted them. 29 As such, the decision upheld the government’s warrantless surveillance activity. 30 A similar implication was imposed in Al-Haramain Islamic Foundation, Inc. v. Bush (2006), when plaintiffs argued that the secret surveillance of their telecommunications was unlawful. 31 The Bush administration invoked the statesecrets doctrine, permitting it to withhold classified information regarding who was being surveilled because it would threaten national security. 32 As such, plaintiffs were unable to prove that their specific telecommunication was being intercepted and thus unable to successfully sue the Bush Administration for unlawful behavior. Because of the state-secrets doctrine, the court was barred from ruling that the surveillance of the plaintiffs occurred. 33 These rulings, particularly the states-secret doctrine in response to national security, position plaintiffs in a harsh catch-22: they can only sue the state if they can prove they have been surveilled, but the state can legally bar this information. It is clear that the mass surveillance of U.S. citizens is indiscriminate and difficult to challenge, undermining the very structure of democracy.

28

ACLU v. National Security Agency, 493 F.3d 644, 692 (6th Cir. 2007), vacating 438 F.Supp.2d 754 (E.D. Mich. 2006).

29 Id. at 691–92.

30 Id. at 692.

31 Al-Haramain Islamic Foundation v. Bush, 507 F. 3d 1190 (9th Cir. 2007).

32 Id. at 1195.

33 Id. at 1203.

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM II. The Surveillance-Industrial Complex The legal regulation of surveillance is complex and, as it stands today, fails to protect the liberties of U.S. citizens and hold exploitative entities accountable.

Rather, surveillance has been preserved by a state of exceptionalism–recall the national security era following the September 11th terrorist attacks. The prosurveillance legal environment allows for the manipulation and exploitation of consumer data by the private sector. Public institutions may improve their own surveillance strategies through collaboration with Big Tech. Therefore, lawmakers often allow these schemes to continue, further violating rights to privacy and self-determination. This symbiotic public-private partnership is known as the surveillance-industrial complex.

A. Intersection of Public and Private Sectors The surveillance-industrial complex refers to the proliferation of data collection schemes that are mutually beneficial to the public and private sector.

This complex has emerged because governments have an interest in applying privately collected data to the operations of public institutions. As a result, many privacy policies are “business model affirming” in that such provisions favor the interests of private corporations rather than the constituents they serve. For example, FTC provisions allow private companies to easily subvert the provisions the aforementioned Children’s Online Privacy Protection Act34 and the Fair Credit Reporting Act; 35 The Commission merely “encourages a voluntary regime of protecting consumer privacy.” 36 As a result, two Congressional reports regarding the FTC revealed that most websites fall outside of the jurisdiction of these privacy laws and fail to protect consumers by inadequately informing consumers about their data collection practices and protecting users’ personal information. 37 By relying only upon the good faith of 34 15 U.S.C. §§ 6501–6.

35 Id. § 1681 et seq.

36 Legal Information Inst.,

Personal Information, Wex Legal Dictionary (last accessed March 11, 2022), https://www.law.cornell.edu/wex/personal_Information.

37 Id.

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UCLA UNDERGRADUATE LAW JOURNAL websites, the FTC failed to establish laws that sufficiently protect citizens’ right to privacy, demonstrating a governmental failure.

Similarly, the U.S. Communications Assistance for Law Enforcement Act (1994) exemplifies this notion; it requires that telecommunication providers structure their networks in such ways that enable the government to easily intercept electronic communications. 38 Furthermore, the closed-source databases of both private companies, like Google and public U.S. agencies, prevent people from knowing how their data is used and, in some cases, abused.

For instance, a special agent for the Department of Commerce was indicted for using TECS, a public government database, to track the travel trends of his exgirlfriend and her family; this was one of 163 times he had illegally abused the database.39 Had there been legislation explicitly regulating the operation of these databases or more transparency within data collection, the opportunity for harassment would likely have been reduced.

Moreover, behavioral data collected by Big Tech allows legislators to learn more about their constituents’ habits and interests, granting them greater access points into constituents’ lives. With heightened surveillance, it can be easier to enforce social control. It can produce the sort of regulatory power that, at its extreme, transforms into a totalitarian surveillance state that violates fundamental liberties. 40 The symbiotic relationship between companies and governments suggests that surveillance is never isolated within the market or the government–private industries are constantly marketing new surveillance technologies to the state. 41 For example, reports show that China has used Internet activity to recognize and censor any dissidents, and various states relied upon social media data to halt the rise of uprisings during the Arab Spring. 42 In the U.S., governments have attempted to acquire consumer data caches from private businesses for

38 39

47 U.S.C. §§ 1001–1010 (2006).

Tony Wu et. al, The Ethics of Surveillance, The Ethics (or Not) of Mass Government Surveillance (last accessed March 11, 2022), https://cs.stanford.edu/people/eroberts/cs181/projects/ethics-of-surveillance/ethics.html.

40 Fatos Lubonja, Privacy in a Totalitarian Regime, 68 SOC. RSCH. 237 (2001).

41 Richards, supra note 50, at 1941.

42 Id. at 1937.

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM purposes like ordering subpoenas.43 In the same vein, public institutions have reciprocated information flow to private corporations. In 2012, the U.S. government disclosed that they had given information it had collected from license plate scanners at border crossings to private insurance companies. 44 The compromising relationship between Big Tech and public institutions creates a precarious situation for digital privacy. 45 The following sections detail the specific corporate data collection processes that have emerged as a result of the surveillance-industrial complex and explains how they violate not only the right to privacy but also the right to self-determination.

III.

Surveillance Capitalism

The mass surveillance policies by the U.S. government have created an invasive state culture crutched upon the notion of national security. As the previous section developed, surveillance has expanded beyond the public sector to also weave its way into Big Tech practices. One such branch of surveillance that has grown exponentially since the beginning of the century is surveillance capitalism. The surveillance capital market is fairly new as its function is only possible from the technological innovations of this century.

Despite the novelty of the economic system, surveillance capitalism aligns with classic capitalist mechanisms rooted in the private ownership of the production of capital, or any sort of asset that is accrued for profit. 46 Industrial capitalism, for example, functioned by asserting ownership over the products of one’s labor in exchange for a wage. Its effects on working populations have been varied. On one hand, industrial capitalism increased economic mobility for those members of society previously beholden to a restrictive feudalist social order.

On the other, demanding labor conditions limited the development of self beyond 43 Robert O’Harrow, No Place 44 Cyrus Farivar, License Plates

to Hide 98–103 (2006).

Scanned at Border, Data Shared with Car Insurance Group, ARS TECHNICA (Aug. 22, 2012), http://arstechnica.com/tech-policy/2012/08/license-plates scanned-at-border-data-shared-with-car-insurance-group/.

45 Scott Skinner-Thompson, Privacy's Double Standards, 93 WASH. U. L. REV. 2051 (2018).

46 Capitalism, Merriam-Webster Dictionary (last visited March 11, 2022), https://www.merriam-webster.com/dictionary/capitalism.

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UCLA UNDERGRADUATE LAW JOURNAL the workplace. Surveillance capitalism operates similarly: it relies on the private expropriation of human production, namely online activity. Moreover, just as industrial capitalism both enabled and limited individual choice, surveillance capitalism both expands and manipulates the range of content that an Internet user may access. There is one key difference between these systems; both create opportunities for individuals to determine their own reality via their consumption choices, but those opportunities are far more numerous, complex, and varied under surveillance capitalism. 47 The explosion of the Internet, known as the Information Revolution, established digital consumption as a new and unparalleled avenue for selfdetermination. Never before could one so easily control what, from whom, and when they consumed information. 48 Novel private technology companies like Apple and Google produced avenues for mass global communication that made this process instantaneous and highly accessible, thereby revolutionizing how we circulate information. 49 If people did not possess adequate control over their life in the real world–their job, their living conditions, etc.–they now had a new chance at control in the digital world: 50 Unfortunately, as soon private interests caught on to the profitability of users’ what, from whom, and when consumption choices, this newfound liberation mutated into anti-democratic manipulations of the digital experience.

A. The Information Revolution Delivers Surveillance Capitalism The capital extracted by private surveillance is human behavioral data. 51 In this case, Big Tech performs the extraction by staking claim to the raw data that is collected from Internet activity. Surveillance capitalism becomes profitable

47

Toshi Takahashi, Creating the Self in the Digital Age: Young People and Mobile Social Media, in The Digital Good Life in Asia’s 21st Century 44 (Digital Asia Hub ed., 2016), https://blogs.harvard.edu/toshietakahashijp/files/2011/09/Creating-the-Self-Takahashi2016.pdf.

48 Id. 49 Id. 50 See Zuboff, supra note 2, at 45.

51 See Zuboff, supra note 2, at 23.

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM when Big Tech sells their behavioral data to other corporations, who subsequently use such data to make profitable marketing decisions. 52 Technology companies did not initially plan on commodifying human behavior. Upon its founding in 1998, Google’s mission was merely to organize the world’s information in an accessible way. 53 The popularization of Google’s services generated an influx of behavioral data as a byproduct of the search tool.

The questions users asked gave the company insight into the interests of its user base; data detailed which queries were most popular and at what time, how they were phrased, where they were concentrated geographically, and how likely they were to be paired with another. At this stage, Google did not consider user data as a profitable commodity. Rather, it was utilized to improve Google’s own services to be more efficient and convenient.

While this application of user data allowed Google to “turn the search engine into a recursive learning system,” 54 its lack of profitability posed an issue for the company’s financial longevity. 55 That is, until data scientists realized the capacity of “data exhaust”–statistics that were not necessary to improve Google’s programming, but were inevitably collected through its mechanisms– to create a profitable advertisement system responsive to each user’s unique behavioral data.56 Data exhaust produced “behavioral surplus” information on data points such as user lifestyle, age, interests, and habits. 57 Upon discovery of its economic utility, Google funneled behavior surplus data into individual data sets known as user profile information (UPI). This innovation generated profit

52

Germán Reyes, Leveraging behavioral insights in the age of big data, WORLD BANK BLOGS (May 31, 2017), https://blogs.worldbank.org/latinamerica/leveraging-behavioral-insights-age-bigdata.

53 Richard Feloni, Google’s HR boss explains why the company can never live up to its mission statement, and doesn’t want to, BUSINESS INSIDER (Apr. 17, 2015), https://www.businessinsider.com/laszlo-bock-on-google-mission-statement-20154#:~:text=Mitchell%2FGetty%20When%20Larry%20Page,it%20universally%20accessible%20and %20useful.%22.

54 See Zuboff, supra note 2, at 68.

55 Lucy Hooker, How did Google become the world’s most valuable company?, BBC NEWS (Feb. 1 2016), https://www.bbc.com/news/business-35460398.

56 See Zuboff, supra note 2, at 81.

57 See Zuboff, supra note 2, at 75.

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UCLA UNDERGRADUATE LAW JOURNAL by feeding through Google’s software to accurately predict the relevant advertisements and match them to each individual user. 58 Recycling behavioral data to produce personalized and relevant advertisements was an ingenious move, as it allowed Google to maximize ad clicks, and, in turn, maximize revenues. 59 Caches are no longer solely used for service improvement; rather, excess data is tapped into and repurposed to improve profitability of advertisements.60 Social media pioneer Facebook, created in 2004, employs similar strategies to maximize users’ time spent on the site. Behavioral data from users of sites like Facebook and Google becomes what this article has coined a commodity of certainty sold to third-party businesses. No longer are humans viewed as ends within themselves, but rather a means to others’ commercial and political ends. 61 Businesses achieve commercial success by using behavioral predictions to influence human behavior through mechanisms like guiding purchases with marketing. Moreover, corporations’ political ends are met by shaping users’ political and social online contexts with content suggestions. Big Tech’s surveillance capitalist practices are disguised under the cloak of ease and efficiency, but in reality, these conveniences come at the expense of self-determination. 62 IV.

Big Tech’s Data Commodification Erodes Self-Determination

Apart from the right to privacy, the largest legal breach that surveillance engenders is that of the right to self-determination, or the right to pursue freely one’s social or cultural developments (in this case, practices like Internet browsing) without external interference. The state violates the right to privacy through its own surveillance practices and its lack of oversight over those of the private sector. In turn, Big Tech violates the right to self-determination by commodifying the data the law enables them to collect. Specifically, self58 59

See Zuboff, supra note 2, at 79.

Google Adsense Help, How AdSense works, GOOGLE (last accessed March 11, 2022), https://support.google.com/adsense/answer/6242051?hl=en#zippy=%2Chow-does-adsensediffer-from-other-ad-networks.

60 See Hooker, supra note 55.

61 See Zuboff, supra note 2, at 14.

62 See Zuboff, supra note 2, at 200.

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM determination is eroded by epistemic inequality, or the power imbalance that emerges when corporations know more about us than we know about them or even ourselves. 63 The gap in power is reflected by this gap in knowledge.

Ultimately, Big Tech controls the production, organization, and presentation of the world’s information. When private companies have control over what and how information is disseminated, the practice of shaping information environments exacerbates the epistemic battle by endangering the procurement of knowledge and users’ self-determination. This section will a) clarify the legal basis for self-determination as a fundamental privilege of democracy, and b) develop how Big Tech’s surveillance capitalist practices violate the right to selfdetermination. 64 In violating self-determination, surveillance capitalism subverts an important principle democracy is predicated upon.

A. The Fundamental Right to Self-Determination Individual autonomy can be generally understood as the capacity for selfdetermination. The right to self-determination is the human right to be in full control of one’s own consciousness and the choices one makes to create a desirable future for themselves. Though lacking in U.S. legal codes, the freedom to self-determination appears in Common Article I of the 1996 International Covenant on Civil and Political Rights: “All peoples have the right of selfdetermination...[thus] they freely determine their political status and freely pursue their economic, social and cultural development.”65 Though selfdetermination is a right that is explicitly given in Common Article I, it is often considered a peremptory norm anyway. Lawyer and political scientist James Ostrowski summarizes this idea of a natural right:

63 Zuboff, supra note 2, at 55.

64 Shoshana Zuboff, The Coup

We Are Not Talking About, N.Y. TIMES (Jan 29, 2021), https://www.nytimes.com/2021/01/29/opinion/sunday/facebook-surveillance-societytechnology.html?action=click&module=Opinion&pgtype=Homepage.

65 International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 1, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, art. 1, 993 U.N.T.S. 3.

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UCLA UNDERGRADUATE LAW JOURNAL

“[Self-determination] is not a legal right, but a moral right. It is a right which exists regardless of whether or not it is recognized in various legal codes and constitutions. Rather, it is to such rights that the drafters of constitutions and legal codes should refer. It is such rights which serve as the basis for criticizing the legal acts of governments which are alleged to violate the rights of individuals. Such rights are referred to as ‘natural rights’ because they are usually justified by reference to the nature of man or the natural state of man, and are to be distinguished from ‘positive rights’ which are those rights actually recognized in legal codes and constitutions.” 66

What Ostrowski describes is the inherent, permanent nature of the right of self-determination, so long as it does not impede upon others’ rights to selfdetermination. 67 The social contract that an individual enters in the U.S. is thus seemingly predicated upon the right to self-determination.

The unwilful personalization of one’s virtual environment and manipulation of their information context can limit one’s self-determination.

For example, consider China’s social media app TikTok’s capacity to scrutinize what videos you watch and for how long as well as which ones you choose to “like.” With this information, TikTok algorithms automatically curate a “For You” page featuring videos that you are likely to enjoy based on the aforementioned usage information. 68 TikTok algorithms are also developed by collecting and examining personal and proprietary information. Despite its famous condemnation by U.S. President Trump as a gateway to allow the Chinese Communist Party to access American information, a 2020 study reported that TikTok did not seem to collect any more personal data than common U.S. platforms like Facebook. 69 This study only goes to show that the algorithmic pattern of meticulously crafting a user’s digital environment based on their past actions online, known as manipulating a user’s virtual information context, is a common theme amongst social media platforms.

66 James Ostrowski, The Moral and Practical Case for Drug Legalization, 18 HOFSTRA L. REV. 626, 607–702 (1990).

67 Id. 68 Legal: Privacy Policy, TikTok (last accessed March 11, 2022), https://www.tiktok.com/legal/privacy-policy-us?lang=en.

69 Justin Grandinetti, Examining embedded apparatuses of AI in FB and TikTok, at 8, AI & SOC’Y (2021), https://link.springer.com/content/pdf/10.1007/s00146-021-01270-5.pdf.

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM The manipulation of one’s information context via surveillance limits selfdetermination by ensuring one’s consistent exposure to content similar to what they are already consuming, much like an echo chamber. 70 Individuals are essentially restricted within an echo chamber and must often go out of their way to view and linger on diverse content in order to diversify their feed. This entrapment can hinder people from their pursuit of intellectual freedom as well as their ability to interact with novel or deviant ideas that can shape their social or political opinions. In “The Dangers of Surveillance,” Richards labels the sort of privacy that intellectual freedom is predicated upon, “intellectual privacy.” 71 While this article has already discussed the right to privacy within the context of surveillance, intellectual privacy can dually be understood within the likes of the freedom of autonomy and thought, both of which are branches of the freedom to self-determination.

This article will later investigate how the construction of a reflective environment, much like an echo chamber, can jeopardize autonomy and democracy, but firstly develop the product of this manipulation: the commodity of certainty.

B. The Commodity of Certainty and its Legality This article has discussed how the perversion of mass surveillance and its extraction of personal information violates the right to privacy. The extraction of behavioral data, only made possible through mass surveillance, is the starting block for surveillance capitalism. Companies stake a claim on private human experience as free raw material in order to extract behavioral data, over which they declare ownership. This sense of authority marks an absolute access to behavioral data in which we cede ownership over our digital behavior and material for profit that works against our own interests. 72

70 Richards, supra note 50, at 1937.

71 Id. at 1937.

72 See Zuboff, supra note 2, at 97.

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UCLA UNDERGRADUATE LAW JOURNAL One can understand how this practice erodes autonomy when considering the predictive behavioral patterns it engenders. Behavioral predictions produce certainty by suggesting what sort of future consumerism a user may engage in and consequently, what advertisements consumers are susceptible to. A myriad of complex UPI-rendering apparatuses and algorithms strengthen ads’ accuracy and precision.

Consider digital assistants like Amazon Alexa, for example, which are marketed as personal assistants for convenience. In order to refine Alexa’s expertise and skill set, Amazon opened the product up to third-party developers. 73 Amazon’s actions allowed the company to collect the behavioral surplus of their users. 74 Both Amazon and third-party developers can then acquire comprehensive data on their users’ intimate living habits, such as whether or not they’re pregnant or need a haircut. Private businesses may then purchase behavioral data from Amazon and engage with it by using it to tailor users’ information context or advertisement exposure.

These practices span across social media platforms despite privacy models that seem to restrict information flow between users and third-party apps.

Consider that Facebook requires that the introduction of a third-party app to a user’s account include an authentication dialogue. 75 While this seems to allow users to exercise agency over what information such apps have access to, a 2017 study proposed that Facebook’s privacy provisions do not adequately prevent third parties’ invasive data collection practices. The study coins one such practice, collateral information collection, to describe the acquisition of user data through other users, e.g., a third party accessing a user’s data merely because the party has access to their Facebook friend’s data. 76 In 2015, the Global Science Research and data analytic company Cambridge Analytica (CA) exemplified this collection: 73 Shoshana Zuboff, Surveillance Capitalism and the Challenge of Collective Action, 28 NEW LAB. F. 10, 15 (2019).

74 Id. 75 Na Wang, et. al., Third-Party Apps on Facebook: Privacy and the Illusion of Control, at 4 (2017), https://dl.acm.org/doi/pdf/10.1145/2076444.2076448.

76 Iraklis Symeonidis, et. al, Collateral damage of Facebook third-party applications: a comprehensive study, at 181, COMPUT. & SEC. (2018), https://www.sciencedirect.com/sdfe/reader/pii/S016740481830302X/pdf.

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…approximately 87 million profiles of users on Facebook have been harvested by an app called “thisisyourdigitallife”, built by Global Science Research, in collaboration with CA. They exploited the collateral information collection mechanism of third-party apps on Facebook, where the app was installed by 270,000 users reaching tens of millions of friends.

The collected data have been used to draw a detailed psychological profile for every person affected, which in turn enabled CA to target them with personalised political advertisement potentially affecting the outcome of the 2016 US presidential elections. 77

Facebook users who did not explicitly authorize thisisyourdigitallife access their information could not control who had access to their data, compromising their right to self-determination. Facebook technology only exacerbated users’ diminished agency by enabling CA’s profiled advertising, presenting a dangerous opportunity to discreetly condition individuals to make trackable, predictable decisions through intentional exposure. At its extreme, such a conditioned environment promotes behavior not unlike that of an automated system that lacks self-determination. 78 The rapid and permanent integration of virtual spaces into society in the modern century leaves few invulnerable to its harm. This sort of advertising and behavioral tracking insulates users’ exploration of the Internet. Companies weaponize their regulation of information flow by carefully curating users’ virtual contexts to influence their consumerism, global news intake, and more.

In 2019, for example, 52% of Americans reported one of their forms of global news consumption was Facebook. 79 While the Internet as a source of news consumption has become normative, Facebook’s prowess in developing a unique, personalized information context for each of its users makes this case alarming. In regulating information flow, especially when it involves narrowing users’ virtual context to shape their consumerism, private technology companies violate the freedom to self-determination. The structure of data networks across the digital world particularly enables this sort of infraction; data 77 Id. 78 See Zuboff, supra note 9.

79 Ro’ee Levy, Social Media,

News Consumption, and Polarization: Evidence from a Field Experiment, 111 AM. ECON. REV. 831, 836 (2021) (discussing the amount of Americans that use Facebook as a news source).

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UCLA UNDERGRADUATE LAW JOURNAL collected in one area can be extrapolated to other areas to produce new findings. 80 For example, retail store Target uses data analytics of what products people are buying to infer characteristics about them. In one specific case, Target used consumer history and personal identification information to infer which of their customers were likely pregnant; customers who increased their purchase of certain products, such as unscented lotion or magnesium supplements, were marked as “expectant.” 81 From there, they could affect consumer’s choices by tailoring their suggested products to best appeal to these inferences.82 In tailoring consumerism, the commodity of certainty sold in the surveillance capital market erodes self-determination by perpetuating human behavior. Its mechanisms include insulating Internet exploration, curating suggested product purchases, and individuating advertisements to each user. 83 As such, surveillance capitalism poses a threat to individual autonomy.

V.

A Threat to Liberal Democracy

Privacy and self-determination rights violations do not occur in a vacuum; they also have repercussions for the health of U.S. democracy. To articulate this point, it is important to define liberal democracy as a form of governance in which citizens have the authority to influence legislation by electing those who decide legislation. 84 The government is accountable for the general population.

Liberal democracies go further than electoral procedures; they promise citizens individual liberties and protection against deprivation of such liberties–the preservation of civil rights is constitutive of a liberal democratic state. 85 As a liberal democratic state, the U.S. promises citizens the rights in the Constitution and Bill of Rights; privacy has been marked as one of those fundamental rights. 86 80 Richards, supra note 50, at 1939.

81 Id. 82 Id. 83 See Zuboff, supra note 2, at 54.

84 Katherine B. Coffman, Representative

Democracy and the Implementation of Majority-Preferred Alternatives, 46 SOC. CHOICE & WELFARE 477, 478 (2015).

Kenneth Bollen, Liberal Democracy: Validity and Method Factors in Cross-National Measures. 37 AM. J. POL. SCI. 4, at 1209 (1993).

86 Griswold v. Connecticut, 381 U.S. 479 (1965).

85

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM As evidenced above, the U.S. has failed to adequately protect its citizens’ right to privacy. Moreover, it failed to regulate, and even participated in, the private sector’s violation of self-determination. In this way, public and private actors compromise liberal democratic values through data collection and commodification.

When the right to digital privacy is disabled, other liberal democratic values are also left vulnerable. Consider the freedom to assembly and association, i.e., protest, a protected First Amendment right and liberal democratic value.

Anonymity plays a large role in its implementation. However, state technology like license plate readers and facial recognition disable anonymity and indiscriminately track protestors, violating their right to privacy. 87 As such, it seems that surveillance systems can dispel dissident groups from protesting in fear of losing anonymity and privacy. Legal precedent set by the Supreme Court does little to assuage this concern. In Laird v. Tatum (1972), the Supreme Court ruled that plaintiffs cannot legally challenge the state if they merely felt deterred from exercising their freedom to assembly because of government surveillance.

The Court held that unless there was “specific present objective harm or a threat of specific future harm,” there was no adequate claim to a violation of their civil rights. 88 Consequently, those that feel in danger because of surveillance tactics are seemingly unable to take legal action. 89 As this newfound era has increased mass surveillance exponentially, U.S. citizens remain powerless to combat violations that undermine a hallmark of liberal democracy: their constitutional rights.

Violations of the right to self-determination also dilute liberal democratic values, but they have an even more harmful effect on popular elections, a crucial facet of any democracy. As this article has highlighted, the right to selfdetermination is compromised upon the implementation of surveillance capitalism: this system is profitable because of its capacity to manipulate Internet users’ information contexts. As evidenced by the aforementioned 87 Neil M. Richards, The Dangers of Surveillance, 88 Id. 89 See Ramjee & Ringrose, supra note 49, at 359.

126 HARV. L. REV. 1934, at 1943 (2013).

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UCLA UNDERGRADUATE LAW JOURNAL practices of Global Science Research and Cambridge, surveillance capitalism hinders citizens’ ability to fairly elect leaders. As corporations use behavioral data to target political advertisements to users, it becomes increasingly difficult for users to make well-rounded, informed decisions that are not biased by this digital manipulation. As such, violations of self-determination damage representative democratic processes upon which the U.S. is predicated.

One can recognize how the U.S. erodes its liberal democracy when it violates the rights to privacy and self-determination online by examining how other liberal democracies throughout the world move to preserve them. The right to digital privacy has been enumerated in international legal documents; the strongest of which can be found in European liberal democracies, as it has been established by both the European judicial system and that of the European Union (EU). The European Convention on Human Rights (ECHR), operating under the Council of Europe, stipulates a right to private and family life, and digital privacy in particular is protected by the recent shift of the care for privacy from a normative issue to a constitutional one. 90 The Court of Justice of the European Union (CJEU), whose judicial scope encompasses just the European Union, has also applied the right to digital privacy across the EU’s legal landscape and reinforced its status as a fundamental human right. 91 The court’s 2020 Schrems II case was centered on the Privacy Shield Decision, a transatlantic data protection agreement that regulates personal data transfers from the European Union to the U.S. The court declared the transfer of personal data through the agreement as illegal on the basis that the U.S. had inadequate protection of privacy and invasive surveillance programs. 92 Their ruling elevated the right to digital privacy as a fundamental right and suggested that it cannot be compromised on the grounds of other interests, reinforcing its stipulation in the CRF as a constitutional right. 93 90

European Convention on Human Rights, Jan. 1, 1990, E.T.S. No. 118; Charter of Fundamental Rights of the European Union, arts. 7-8, Dec. 7 2000, 2000 O.J. (C364) 1.

91 Suebert & Becker, supra note 12.

92 Case C-311/18, Data Protection Comm’r v. Facebook Ir. Ltd., ECLI:EU:C:2020:559, ¶ 2 (Jul. 16, 2020).

93 Suebert & Becker, supra note 12, at 36 (discussing the effect of Schrems II on fortifying EU data protections).

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM The ruling also shed light on the inadequate protection of privacy that U.S. legislation offers. Many European countries, like the United Kingdom and France, are also liberal democracies like the U.S. that have not only established privacy laws for their own citizens but have also taken specific issue with how the U.S. conducts surveillance.94 This provides further evidence that mass surveillance has violated an implied right to privacy in the U.S. in the eyes of our international allies.

VI.

Legal Recommendations

A central issue regarding current legislation is that its scope does not encompass the actions of private actors or, in this case, public corporations independent from the state. Because current constitutional law addresses government action, it is ineffective in determining the legality of actions committed by non-government actors, i.e., Big Tech companies. As Fourth Amendment scholar Orin Kerr suggests, an approach effective in protecting the right to privacy would be to pass federal statutory law that can safeguard against mass surveillance and digital dispossession. 95 Statutory law is more adaptable and can be applied to the actions of Big Tech companies. Big Tech can be further regulated by enforcing higher standards of data protection, such as a statute prohibiting technology companies from sharing personal data with third parties.

Federal statutory laws should also include raising the standard that public intelligence agencies must meet to legally intercept telecommunication, reducing indiscriminate surveillance, requiring more stringent processes that would prevent operator errors, or increasing the standard that public intelligence agencies must meet to obtain a legal warrant. 96 Effective changes to legislation like these provisions would better safeguard against violations of the right to privacy that ensues when indiscriminate government surveillance is involved.

94 Id. 95 Orin

S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 801, 806–08 (2004); 18 U.S.C. § 2516 (2006).

96 Id.; Kerr, supra note 101, at 806–08.

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UCLA UNDERGRADUATE LAW JOURNAL Ideal legislation would additionally address the surveillance-industrial complex to mitigate the consequences of surveillance capitalism. As this article has underscored thus far, the line between private and public sectors has been blurred to create a reciprocal, mutually beneficial relationship. While current legislation restricts state collection of data, government agencies may find loopholes by purchasing data from private databases.97 To better protect the right to privacy and self-determination, government access to private databases should be restricted. The Driver’s Privacy Protection Act of 1994 serves as an appropriate model for this sort of regulation; the statute limits the Department of Motor Vehicle’s ability to disclose personal information. While the government still has access to this information, its sale to private corporations is prohibited. 98 Above all, legal processes that correctly regulate mass surveillance and its capitalism must be responsive to developments in surveillance practices; struggles to regulate digital world stems from a disconnect between the speed at which technology develops and the speed at which government institutions can pass legislation. Coordination between U.S. government institutions can take months and partisanship within each chamber can also exacerbate coordination problems. As such, technology may have already reached new heights by the time a piece of regulatory legislation has passed, warranting it outdated sooner than other types of legislation. As technology evolves, legislation should shift accordingly to best meet the changing needs of U.S. constituents.

Conclusion This article has developed how both private technology companies and public government institutions are incentivized to surveil Americans on a mass scale. The dramatic difference in power between large corporations or institutions and everyday people leaves users vulnerable to privacy breaches and

97 Richards, supra note 98 18 U.S.C. § 2721.

50, at 1959.

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THE FBI AGENT IN YOUR PHONE: THE LEGALITY OF MASS SURVEILLANCE AND ITS CAPITALISM false information consumption. 99 Known as the surveillance-industrial complex, this network is dangerous because surveillance capitalist practices jeopardize democracy by violating the rights to privacy and self-determination.

The most promising solution seems to be federal legislative action. As seen within the jurisdiction of the European Union, the right to privacy can be incorporated into legal documentations and should be in the U.S. As it stands now, the U.S. federal government lacks an overarching privacy law. Instead, Internet users are forced to rely on inconsistent state regulations that are only available in a handful of states. In order to be conducive to user protection, the U.S. government should create compelling federal legislation that at least provides standards for nuanced state regulation. In addition to significant legislative changes on the federal level, adjusting current FTC legislation to include more websites within the jurisdiction of their established right to privacy would better protect personal information.

This is all to say that every time one uses the Internet, they surrender ownership of their digital material and behavior to an economic and social order dictated by surveillance capital. Digital dispossession is no longer discrete– Internet users often joke that there is an FBI agent within their device to cope with the growing realization that their online actions are being surveyed.100 As technology becomes a foundational part of societal function, many have learned to resign and surrender to the preying mechanisms of Big Tech and the surveillance state. To restore individuals’ digital sovereignty, the U.S. government should prioritize legislation centered around protecting Internet users’ data rights to self-determination and privacy.

99

Bryce Newll, The Massive Metadata Machine: Liberty, Power, and Secret Mass Surveillance in the U.S. and Europe, 10 I/S: J.L. & POL’Y FOR INFO. SOC’Y 481, 482 (2014) (discussing the effects of corporate power on privacy invasion).

100 Eden Arielle Gordon, This Haunts Me: The “My FBI Agent” Meme as Metaphor for Surveillance Capitalism, American Loneliness, and God, POP DUST (Jun. 26, 2020), https://www.popdust.com/my-fbi-agent-2646270710.html.

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