Volume 12/F22 - Wellesley College Law Journal

CONTENTS

LETTERSTOTHECOMMUNITY

Letterfromthe Presidents 3

Letterfromthe Editors 4

INTERNATIONALISSUES

TheIndia-ChinaBorderConflict,itsImplicationsfortheUS,andPolicyRecommendations 5 forWashington LIYIN’26

SpinningForeignDirectInvestmentintoGlobalizationGold:IndonesianPolicyProposals 12 CHRISTINAKURRE’23

PlanColombia:AnalyzingtheEffectsofAerialEradicationofCocaCrop 25 GRACEFANG’23

CBAManditsDiscontents 34 YUEXIN(RACHEL)FEI’25

MontrealProtocol:ATreatyAnalysis 41 PAIGEMARIEVILLARREALDEAN’23

U.S.LAW

ChildrenontheWitnessStand:HowtheLanguageofCross-ExaminationConfusesChild 51 Testimony ADELINEVANBUSKIRK’24

BordersoftheHeartland:MoralCulpabilityandDepartureJustificationsin 56 MethamphetamineSentencing MIRABOHANNANKUMAR’24

TheUnconstitutionalTreatmentofTransgenderPrisoners 63 SOPHIAYATES’24

Lynch v. Donnelly (1984)CaseStudy 74 NATALIEMCDERMOTT’25

LETTERFROMTHEPRESIDENTS

DearWellesleyCommunity,

Dec12,2022

It is with great pleasure that we share with you the twelfth edition of the Wellesley Pre-Law Society Law Journal, Global Perspectives We owe our twoincrediblejournaleditors, Radhika Seshadri ‘23 and Nerine Uyanik ‘24, much gratitude for their effort putting this lovely journal together for us all to read. We also owe our gratitude to our amazing e-board. The Fall 2022 semester marked one of the largest e-board turnovers we’ve had during our time at Wellesley with the recent graduation of many of our long-time members, but our excited and passionate newcomers reinvigorated our organization and our endeavors. Finally, we want to thank the authors featured in this volume. Thank you for sharing your words, your ideas, and your passions with us, and for trusting us with amplifying your voices within the Wellesley community.

As seniors whose first year was marked byourunexpecteddeparturefromcampusinthe spring of 2020, it has been a delight getting to comebacktocampusforourfinalacademicyear in full swing as an organization. We have so enjoyed getting to know all of our members and getting to facilitate connections between Pre-Law students. From our classic Tea withaLawyer event to our newly established law school tour series, we feel very fortunate to have had the chance to engage with thiscommunitymorefullyandin-person.Theessayscontainedherearea testament to that excitement and fervor of this fall semester. Just like their authors, thesepieces are multifaceted, thoughtful, passionate, and curious. They examine everything from child testimoniestointernationalarbitrationtopolicyrecommendationsonborderconflicts.

We are proud to offer this bi-annual publishing opportunity to Wellesley College students. Any piece of writing under 20 pages is eligible for submission, so long as it discusses topics related to law and/orpolicy We’dlovetoseeyoursubmissions!Deadlinesaretypicallyat the end of the fall semester and the middle of the spring semester. As always, we are here to support you in your Pre-Law journey and are happy to answer anyquestions(ortodirectyouto someone who has a better answer). WearesoproudofourcommunityhereatWellesley,andwe hopetoconnectwithyousoon!

HappyReading, VictoriaPercoco’23andShaylaZamora’23

Wellesley Pre-Law Society Co-Presidents 2022-2023

LETTERFROMTHEEDITORS

WelcometoVolume12oftheWellesleyCollegeLawJournal!

Dec12,2022

Publishedtwiceayear,theWellesleyCollegeLawJournalisapremierlocationforstudentsto publish their thoughts on politics and policy, civil and human rights, and general law. The Journal is a student publication housed withintheWellesleyCollegePre-LawSociety,featuring articlesselectedandeditedbytheLawJournalEditors.

We are thrilled to present the Fall 2022 Edition of the Wellesley College Law Journal. For this volume, we were heartened to receive a number of articles addressing diverse challenges from around the world. We hope Global Perspectives encourages you to continue expanding your understandingoflaw,politics,andpolicyintheU.S.andbeyond.

Happyreading!

Sincerely, RadhikaSeshadri’23andNerineUyanik’24 Wellesley College Law Journal Co-Editors 2022-2023

THEINDIA-CHINABORDERCONFLICT,IMPLICATIONSFORTHEU.S.,AND POLICYRECOMMENDATIONSFORWASHINGTON

byLiYin Introduction

A 2015 Council on Foreign Relations Contingency Planning Memorandum for Washington underscored the potential menaces of armed confrontations between China and India to U.S. security interests (Markey 2015). In the wake of heightened tensions between China andIndiaduetodeadlyconflictsontheircontestedborderintheregionofLadakhinboth 2020 and early 2021, that risk remains and needs to be addressed (Dossani 2021). Conflict between China and India, who are bothpopulousnuclearnations,threatenstodisrupttheglobal economy, undermine regional development, and have considerable humanitarian consequences depending on its ultimate scale, which are all unfavorable results for Washington. Further, if India is weakened militarily and economically in the process, its value as a counterweight to China and the broader U.S. goal of countering China’s regional influence would also be undermined (Markey 2021). As China continues to challenge U.S. hegemony and the established rule-based order on the global stage, it is clear that the importance of closer US-India ties have only risen. This document advises that Washington should calibrate a balanced strategic partnership with India that effectively supports itsdemocraticallyintheface of Chinese animosity, lessens the risks of renewed border tensions thatunevenlybenefitChina, and protects U.S. interests (Markey). To help policymakers thoroughly comprehend the India-China border dispute and make informed decisions, thefollowingmemorandumcompiles known facts about recent armed actions in the contested region,detailsthemotivesbehindboth nations’ actions, and outlines current de-escalation measures from both nations. The document also provides specific recommendations that urge the Biden administration to help improve India’s surveillance and cyber resilience in preparation for Chinese attacks, enhance the Indian economy to withstand possible Chinese economic coercion, and seek trilateral, diplomatic dialoguebetweenthethreenationsaboutthepeacefulresolutionoffuturedisputes.

KnownFactsaboutRecentBorderDisputesBetweenIndiaandChina

2020 marked a tumultuous year that featured thedeadliestChina-Indiaborderclashesin over four decades (Dossani 2021). On June 15th, 2020, Chinese andIndiantroopsengagedina brawl in the disputed area known as the Galwan River Valley in the northern Ladakh regionof India (see Fig. 1). This confrontation left twenty Indian soldiers dead while causing an unspecified number of Chinese casualties. After the incident, China issuspectedtohavegained dominanceofatleasttwentysquaremilesofIndian-controlledterritory(Gokhale2021). The immediate provocation for this confrontation was India's construction of a new road to a high-altitude air base on the Line of Actual Control (LAC) in 2019. The LAC isanill-defined, 2100 mile long border north of India where the two nations are competing to build infrastructure.AftertheestablishmentofIndia’snewfeederroadthere,Chinahadcomplainedin May 2020 that it raised the likelihood of a quick forward deployment of troops against China. India ignored the complaint suggesting that it had the right to build infrastructure in all territories under its control, even if disputed (Dossani 2021). In response, a month later, China sent troops to the disputed area and approached Indian armed forces with violence. In the summer of 2020, each side deployedapproximately50,000troopsalongtheLAC.Accordingto

BBC reports, the most recent India-China skirmish near the region occurred on January 20th, 2021. It took place along the border in India's Sikkim state, which is sandwiched between BhutanandNepal,anditledtoinjuriesonbothsides(BBC News 2021). Fortunately in February 2021, therewasrenewedhopeforapeacefulsolutiontothemostrecent armed conflicts. The two sides agreed to a simultaneous military disengagement from one part of their contested border in the region of Ladakh. New Delhi and Beijing also agreed to withdraw to their permanent bases and cease patrolling up to the other side’s view of the LAC (Kim and Singh 2020). Council on Foreign Relations (CFR) expert Daniel Markey (2021) observes that this created a buffer zone about four mileslong,andshouldreducetheimmediate risks for an armed confrontation. Sadly, tensions between India and China are likely to remain high in the long run and warning indicators forconflictwillcontinuetoblinkred(Panda2021). After all, as IndianForeignMinisterSubrahmanyamJaishankarnoted,2020lefttheChina-India relationship “profoundly disturbed,” and both sides, at least covertly,remainfullycommittedto military strategies that may bring heavily armed forces into closer and deadlier contact once more(Markey2021).

Figure1.MapofthecontestedregionbetweenIndiaandChina.

ReasonsBehindbothNations’AssertivenessintheLadakhRegion

China

In China’s strategic calculation, India’s position is definitely that of a growing global power. Initially, given that China is engaged in adeepstruggleforstrategicparitywithAmerica,itwas hoping for stable relations with India, based on the Modi-Xiunderstandingsof2018.YetChina sees its land and maritime borders—including the LAC—as great vulnerabilities and considerably values its territorial integrity (Dossani 2021). Thus, from China’s perspective, India disrespected and damaged their relationship first through the unilateral declaration of the disputed territory of Ladakh as a union territory of India in August 2019 and its subsequent road-building activities. These actions provide India greater authority and undermine Beijing's influenceacrosstheborderregions,muchtoChina’sdismay(Panda2021).

Now that India-China’s relations are strained, the South Asian country’s stature as a rising power threatens ratherthanadvancesChina’sregionalandglobalambitions(Panda).Ittherefore makes sense that, according to Tanvi Madan from the Brookings Institution, China’s forcefulness against India’s borders stems from Beijing’s desire to warn against India further asserting itself and deepening its relations with the U.S. aswellastotakeadvantageofIndiaas itis“onthebackfootordistractedduetothecoronavirus”(Madan2020).

India

For India, China’s rapid growth in recent decades and its superior military capacities make for an inherently unequal relationship between the two nations from the start.Inthepast, China has been willing to accommodate India on an equal basis in some cases, such as joint exploration for oilinSudan,andtheestablishmentoftheNewDevelopmentBank.Butthereare numerous other instances that exhibit China’s unwillingness to accommodate India, such as permanent membership of the Security Council and the membership of the Nuclear Suppliers Group. In these cases, India can seldom grasp much leverage to pressure the Xi administration toactinwaysthatboostIndianinterests(Dossani2021).Hence,NewDelhigraduallygrewtired of its disproportionate and disadvantageous relationship with Beijing. Moreover, the Belt and Road Initiative, an immense Chinese strategic initiative to develop the infrastructure of partner countries, has driven a deep wedge between India and China (Dossani 2021). The BRI’s presence is most pronounced in South Asia, particularly in Pakistan, Sri Lanka, Nepal, Bangladesh and the Maldives. India is alarmed at such Chinese activities in its traditional zone of influence, some of which, such as roads in Pakistan-controlled territory that it claims and ports in Sri Lanka, may beusedtosupportChina’smilitarydefenseneeds.Asaresult,theModi administration isseekingtoreassertitsstrengthandauthorityintheregionbyfacingChinahead onintheborderconflict.

With animosities between two nations brewing over the past fewyears,andbothXiand Modi confronting more reasons for opposition than collaboration, it is understandable that insistenttensionandevenviolencesparkedbeforecomposednegotiations(Singh2021).

CurrentNon-MilitaryAttemptsfromBothSidestoDiminishTensions

In 2020 and into 2021, both China and India extended their land border confrontation into other areas of their bilateral relationship as non-military signals to discourage military escalation (Markey 2021). Chinese signaling included engineering a brief but debilitating October 2020 electrical blackout in Mumbai through a cyberattack by Chinese hackers. New Delhi is reportedly considering further measures to curb and scrutinize imports, including to prevent Chinese goods from being routed through third countries (Madan 2020). The Sino-Indian technology sector ties have also been affected. The amendments to Indian investment rules will adversely affect Chinese technology companies interested or operating in India. In addition, India has banned a number of Chinese apps on the grounds that they are “prejudicial to sovereignty and integrity of India, defense of India, security of state and public order” (“Government Bans 59 Mobile Apps” 2020). These include TikTok, almost a third of whosetotaldownloadssurprisinglycomefromIndia,aswellasAliPay. Unfortunately, these Indian attempts to coerce China non-militarily are proven to be more detrimental than effective. India’s economic and technological punishments against China intensified Indian concerns about its economic overdependence on China (Madan 2020). Though Prime Minister Modi made grand claims about his future plans of economic

atmanirbharta (self-reliance), there have been questions about India’s actual ability to reduce dependence on China, and the enormous costs that will entail—particularly as India deals with economic fallout from the pandemic (Panda 2021). There are also worries about supply disruptions, especially since Modi has been emphasizing the importance of India replacing China’s role in global value chains. Certainly, although India and China intended these nonmilitary gestures to de-escalate armed confrontations along their border, those signals ultimately indicated how future crises could spill over into other areas and exacerbate rather than calm a crisis (Markey 2021). This failure on both sides to thoroughly manage the 2020 border dispute through non-violent methods shatters a useful precedent. Indeed, China-India relationshaveenteredanew,moreprecarious,andunpredictableera(Feng2021).

WhytheU.S.ShouldGetInvolvedandSpecificRecommendationsforWashington

Ashley Tellis, a senior fellow at the Carnegie Endowment for International Peace, said that by its brazen actions, Beijing has forced New Delhi to join the rest of Asia in figuring out how to deal with the newest turn in China's “salami-slicing tactics,” a broad pattern of aggressive Chinese actions in the past few months around the Pacific Rim regionthatthreatens American allies (Press Trust of India 2020). These actions include moving forward with the National Security LawinHongKong,targetingimportsofbarley,beefandwinefromAustralia, sending “suspicious aircraftsheadingtoJapan’sairspace,”andrammingVietnameseshingboats in the South China Sea (Madan 2020). Should China be able to maintain the upper hand in the current Sino-India border crisiswithoutconsequences,itwouldmeanthatChinacancontinueto successfully subvert the rule-based status quo in the region, which would go against American interests and the benefits of U.S. allies. Hence, as urged by Vijay Gokhale (2021), a senior fellow at Carnegie India and previous foreign secretary of India, it is imperative for theUnited States to join hands with a like-minded democratic India and retaliate against the Xi administration’shostileefforts.

However, the Biden administration also needs to keep in mind the perils of a tighter relationship with New Delhi. Under the leadership of Prime Minister Narendra Modi, Indian military escalations with China have demonstrated an unusually high streak of nationalistic ambition and risk-acceptance (Markey 2021). Feeding already-aggressive Indian tendencies would only increase the likelihood that China would respond by accelerating its deploymentof increased forces along the land border. Together, these behaviors would raise the stakes of China-India land border conflict, and would lead theUnitedStatestomoreeasilybedrawninto a Sino-Indian armed confrontation (Madan 2020). While aiming to reduce India’s vulnerability to Chinese coercion and assault, U.S. support should avoid emboldening India militarily to extend its strategic aims and act during any future crisis in ways that threaten U.S. interests, thereby lessening the likelihood that the United States would be placed in the uncomfortable position of either living up to its commitments and beingdrawnintoadirectconfrontationwith China or backing off commitments and damaging US-India relations (Markey 2021). Overall, the U.S. should work with India primarily to balance and deter China, andensurearules-based and multipolar order prevails in the region (Singh 2021). To do so, this memorandum specificallyadvisesthat:

● The United States should, as recommended by Markey, prioritize assistance that improves India’s ability to anticipate and parry Chinese military moves, without promoting major Indian investments in offensive capabilities that may lead to violent conflicts (2021). It is

advantageous for India togainagreatercapacitytogatherandassessintelligenceonChinese forces along an extremely long and treacherous border By sharing new or modified U.S. unmanned surveillance and sensor technologies with New Delhi, Washington can cost-effectively help Indian forces garner early warnings of Chinese territorial encroachments. U.S. and Indian army engineers should also co-develop new groundsensors designed specifically for use in the difficultterrainalongtheChina-Indiaborder.Inaddition, Washington should fast-track and facilitate the expansion of US-compatible, secure communications terminals in India that can improve the timely provision of classified and sensitiveinformationcollectedfromU.S.platforms.

● The Biden administration should work with India and other regional allies to identify and develop a coordinated multi-party response strategy for the purpose of enhancing India’s ability to deter and withstand possible Chinese economic coercion tactics. Brookings expert Tanvi Madan (2022) recommends that Washington needs to primarily seek support from its Quad partners, such as Australia and Japan, who experience comparable hostilities from Beijing and are similarly reliant on China in terms of trade. Together, these nations should identify short-term arrangements for alternative sourcing of critical industrial inputs in case China disrupts supply chains, and gradually shift their economic dependency on China to each other.Meanwhile,asDelhidisplaysdesiretoreduceitseconomicdependenceonChina, theUnitedStatescanencourageitsowncompaniestoenterbuddingIndianmarkets.

● It is appropriate for the United States to seek diplomatic opportunities that remove obstacles to the peaceful resolutionofdisputesbetweenChinaandIndia.Itisunlikelythattherewillbe scope for India and China to resume their “Developmental Partnership,” which was introduced during President Xi’s state visit to India in September 2014 (Ministry ofExternal Affairs, Government of India 2014). Still, as recommended by Dr. Jagannath Pandafromthe East Asia at the Manohar Parrikar Institute for Defense Studies and Analyses in New Delhi, Washington should forthrightly express to Beijing its concerns about the dangers associated with China-India crisis escalation and explain that its supporttoNewDelhiwillbedefensive and not assaultive in nature (Panda 2021). Through official diplomacy and tracking conversations between Chinese and U.S.expertsonSouthAsia,theUnitedStatesshouldalso “seek a better understanding of specific Chinese aims and insecurities in South Asia as a means to better anticipate likely Chinese responses to Indian policies and developments in India-Pakistanrelations”(Markey2021).

● Washington should meanwhile prepare its own policymakers for the possibility of a new China-India armed crisis as early as this upcoming summer, as predicted by Markey. Senior officials in the Biden administration should acclimate their teams to the new normal in China-India tensions through intelligence briefings and a simulation exercise to comprehensively emphasize the web of potential escalation paths that “link China-India border conflict to India-Pakistan tensions, maritime disputes, economic and diplomatic reprisals,andevencyberwar”(Markey2021).

Conclusion

The United States has been the guarantor of regional order in Asia since the Japanese surrender in 1945. China always considered the UnitedStatesasanideologicalenemy,butU.S. technology andcapitalwereneededforChina’smodernization,andthereforeBeijingadjustedto U.S. hegemony until it gained its own strengths. On theotherhand,IndiaandAmericamaynot alwayshavecommonpositions,buttheirdifferenceswereneverideological,andIndiaconsiders

the United States a critical partner in itsownongoingmodernization.AsChinanowpreparesto completely challenge U.S. dominance worldwide and Sino-American relations are strained, tensions between New Delhi and Beijing are also escalating after the 2017 Dokham standoff between India and China in Bhutan. The death of twenty Indian soldiers and an undisclosed number of Chinese soldiers in a 2020 violent face-off along the LAC, especially, marks an irreversible inflection point in the seventy-year relationship between Asia’s largest modern states (Kim and Singh, 2020). At present, it isforeseeablethatChina-Indiarelationswillstayat a comparatively low level (Feng2021).Duringatimeofheightenedhostilities,U.S.presencein the Indo-Pacific is hugely capable of shaping the course of future India-China relationsandthe power dynamics in the region (Singh 2021). A robust U.S. responseandbackingofIndiacould help deter the threats that China’s actions along the Indian border pose to the rules-basedorder in the Pacific Rim; it will also make Washington a more attractive partner, increasing like-minded countries’ willingness to work with the U.S. and to share burdens in situations to come (Gokhale 2021). Thus, it is in the Biden administration’s best interest to provide military surveillance assistance to Indianbordertroops,helpIndiawithstandpotentialChineseeconomic coercion, seek diplomatic opportunities for peaceful Beijing/New Delhi negotiations, and prepare its own foreign policy officialsforthepossibilityofanewChina-Indiacrisisinthenear future.

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Gokhale,Vijay.2021.“TheRoadfromGalwan:TheFutureofIndia-ChinaRelations-Carnegie India-CarnegieEndowmentforInternationalPeace.”CarnegieIndia.March10,2021. https://carnegieindia.org/2021/03/10/road-from-galwan-future-of-india-china-relations-pu b-84019

“GovernmentBans59MobileAppsWhichArePrejudicialtoSovereigntyandIntegrityofIndia, DefenceofIndia,SecurityofStateandPublicOrder.”2020.PIBDelhi.June29,2020. https://pib.gov.in/pib.gov.in/Pressreleaseshare.aspx?PRID=1635206.

Kim,PatriciaM.,andVikramSingh.2020.“ProspectsforCrisisManagementontheChina-India Border.”UnitedStatesInstituteofPeace.September16,2020.

https://www.usip.org/publications/2020/09/prospects-crisis-management-china-india-bor der Madan,Tanvi.2020.“EmergingGlobalIssues:TheChina-IndiaBoundaryCrisisandIts Implications.”Brookings.September9,2020.

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https://southasianvoices.org/india-china-relations-to-stay-contrarian-in-2021/ PressTrustofIndia.2020.“ChinaHasLittleRespectforIndia’sLong-StandingEffortstoFreeze StatusQuo:USThinkTank.”TheEconomicTimes.June6,2020.

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Singh,ZorawarDaulet.2021.“TheFutureofIndia-ChinaRelationshipIsNowAllaboutthe FluxinUS-ChinaTies.” ThePrint (blog).February22,2021.

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SPINNINGFOREIGNDIRECTINVESTMENTINTOGLOBALIZATIONGOLD: INDONESIANPOLICYPROPOSALS

byChristinaKurre Introduction

Composed of over 17,000islandsinSoutheastAsiaandadiversepopulation,Indonesia’s biodiverse and resource-rich environment positions it to experience environmental harms as a result of foreign intervention and cycles of poverty. Empowering the Indonesian people and government to take controlandsustainablyutilizetheirenvironmentisessentialfordomestically prosperouspolicies.

In the 1600s, the Dutch colonized Indonesia, exploiting Indonesian resources, land, and peopletopromotethesugarindustryforprofitintheNetherlands.Withanintensefocusonsugar production, the Indonesian economy was ill prepared for diversification because its other industries were not as advanced. Following a brief Japanese occupation, Indonesia gained independence in 1945. Weak andtumultuousgovernmentsbroughtIndonesiatothe1960s,when President Suharto started his authoritarian and centralized rule, lasting until 1998. During the latterhalfofthe20thcentury,theIndonesianeconomygrewrapidly.

During the Asian Financial Crisis in 1997, poverty grew from 17.47% in 1996to24.2% in 1998 (Hill 2021). In 1998, President Suharto resigned as the Asian Financial Crisis battered Indonesia. The crisis promoted political instability, widespread poverty, and large-scale unemployment. The crisis exacerbated by an outflow of foreign direct investment from Indonesia. Foreign direct investment net inflows fell as a portion of Indonesian gross domestic product from the onset of the crisis in 1997 to 2000 when it began recovering (“Foreign Direct Investment”2020).

Following the Asian Financial Crisis recovery, foreign direct investments in Indonesia have grown dramatically. Recognizing how crucial foreign investment is to the economy, Indonesia started to actively cultivate an environment that attracts foreign investment.President Widodobegananinfrastructurepushtoideallyattractevenmoreforeigninvestment(Otto2015). Currently, foreign investment represents approximately half of all total investment in Indonesia (Christina and Suroyo 2022). Foreign direct investment heavily supports Indonesian exports, productivity, employment, and more, which has supported dramatic economic growth (OECD 2020).

IncreaseEnvironmentalRequirementsforForeignOwnedMines

In 1967, two years before Indonesia formally annexed West Papua, the Indonesian government granted what would become Freeport McMoRan the right toextractmineralwealth at the Grasberg mine site in West Papua (Schulman 2016). In the five decades since Freeport began operations, Freeport has extracted 528 billion ounces of copper and 53 million ounces of gold and the environment within and surrounding the mine displays this significantundertaking (“Grasberg Open Pit Copper Mine” 2020). A report by Indonesia’s Supreme Audit Agency in 2017 found that the Grasberg mine caused $13.25 billion worth of environmental damage, mostly from tailings that extended beyond the agreeduponlimits(ChristinaMunthe2018).Two years earlier, the Indonesian Ministry of Environment and Forestry reprimanded Freeport for activities beyond the scope of the environmental permit granted (PT. LAPI ITB 2017).Freeport

also released approximately three billion tons of tailings over the life of the mine, violating Indonesianlaw(Cardiffetal.2012).

In 2012, President Yudhoyono signed a law that required that foreign owned mines sell down their ownership stakes, so the mines are at least 51% domestically owned by their tenth year of production (Thaher and Chatterjee 2012). This attempt at natural resource sovereignty was a key contributor to Freeport renegotiating their contracts in 2019. In 2019, PT Indonesia Asahan Aluminum(Inalum)acquireda41.2%ownershipstake,thePapuangovernmentobtained a 10% stake, and Freeport maintained a 48.8% stake. When the Indonesian government bought out Freeport’s stake through the government owned Inalum, theybecamefinanciallyandlegally responsible for the environmental damage (Gokkon 2019).Freeportisjustthemostegregiousof the foreign owned mines in terms of environmental and human rights violations. Indonesia’s Constitution recognizes the human right to theenvironment,makingFreeport’sblatantdisregard fortheenvironmentahumanrightsissueaswell.

Legally, all companies are expected to restore mining sites, but many miningcompanies fail to follow through. The thousands of open mining pits left bythecompaniesareanoticeable marking of companies’ failures. Between 2014 and 2020, one hundred and sixty-eight people havedied,mostlychildren,fromfallingintotheseabandonedminingpits.Authoritiesneglectthe legalnon-compliance,whichfurtherenablesenvironmentalharmfrommining(Jong2021a).

The first area for policy changes is in foreign mine environmental management. Indonesia should renegotiate the terms of foreign owned mines, such as the Grasberg Gold and Copper Mine, to require that the miningcompaniesprovideclearandscientificallysubstantiated plans for environmental clean-up before, during, and after the life of the mine, as well as evidenceofthefinancialresourcestofundtheplans.

Indonesia has vast gold, tin, bauxite, nickel, and copper reserves as well as other key resources. Many of these resources are being developedbyforeigncompaniesduetotheintense initial capital requirements. The initial exploration permits for mines do not require any environmental assessments, but the production permits do require an AMDAL– an environmental permit. Once companies have invested the necessary resources to explore the possible mine, they are likely to be highly motivated to mine in that area. This strong desire to focus on the monetary benefits oftheirinvestmentcouldresultinoverlookingtheenvironmental consequencesbeyondtheAMDALrequirements.

Requiring companies to undertake extensive environmental planning will force them to take the time to consider and mitigate the environmental fallout from their mining. This additional planning will be added to the AMDAL requirements and will focus on the consequences. This proposed permit requirement differs fromthecurrentAMDALrequirements in one key way: solutions for the environmentalharm.TheAMDALfocusesonthepotentialfor significant impacts of the activity, not on theramifications,mitigations,oradaptation,whichare vitalwhencomputingthecostbenefitanalysisofamine.

The restoration will take place throughout the mining process to ensure that lasting damage is notdoneasaresultofwaitinguntiltheendoftheminetodealwiththeenvironmental issues. This is especially important because mines can have extremely long life spans, like the Grasbergmine,whichhasbeenproducingforalmostfiftyyears.

Part of this assessment requires evidence of the financial capacity to complete the environmental clean-up. This is key because part of mining should include restoration. Environmental clean-up is often quite expensive and it is important for mining companies to prove that they cantakeonthisburdenbeforetheydamagetheenvironment.Companieswillnot

be allowed to base their entire financial capacity evidence onthesuccessofthemineinthecase thatitisnotasfruitfulasanticipated.

Putting the financial and logistical burden on the foreign companies forces them to take on the cost of their actions that would otherwise become negative externalities placed on the future domestic owners. Previously, many of these companies left their environmental damages to be endured by the communities, and this policy would require companiestointernalizemost, ifnotalloftheexternality

These new AMDAL requirements will be applied to all new mines and all permit renewals. Previously permitted mines will be strongly encouraged to create these plans as well. Should companies with valid permits decide to not develop these plans, they will be taxed an additional amount based on their production levels and the revenue earned from this taxwillgo intoafundtosupporttheenvironmentalclean-upeffortsofthatcompany

Ideally this two-pronged approach to monitoring, both before and after will ensure compliance with environmental laws. Requiring more oversight initially, especially while the company seeks permission, will encourage companies to follow through because they created theirownresponsibilitiesandprovidedtheplanstotherelevantauthorities.

This policy will also hopefully reduce the number of abandoned mining pits. An Indonesian mining advocacy network identifiedover3,000abandonedminingpits(Jong2021a). While not all of these pits can be attributed to foreign mining companies, preventing the abandonment of these mining pits and thereby the deaths of people will be beneficial no matter thescale.

This policy focuses predominantly on foreign firms because they produce an externality and will not have to see the repercussions. Foreign firms will not feel the decline in the Indonesian economy due to environmental degradation. Theyalsocaneasilyremovethemselves fromthecountryandeconomywhentheyseefit,whichdoesnotbenefittheIndonesianpeople.

Ultimately, this policy proposal will be of incredible benefit to the Indonesian government and people by reducing their liability for the actions of foreign companies in Indonesia. But there are still several risks. Firstly,becauseminingcompanieshavetoprovethey can afford the necessary clean-up prior to any mine profits, they will be unlikely to elect to undertake expensive or more effective environmental clean-up that they may only be able to afford afterwards. This could be an issue because it could lead to companies not cleaningupall of the mining impacts, but rather doing as much of the work as they are required,butnotmore. The planning documents required for the AMDAL will be the minimum the companies are requiredtodoforenvironmentalclean-up,sothecompaniescoulddomore,butthatisunlikelyif itismoreexpensive.

Another minorconcernisforeignfirmsmaynolongerinvestinIndonesianmines.Thisis asmallerconcernbecauseminingisanindustrythatcannotmovelocations,eithertheresourceis there or it isn't. Indonesia has many resources, and they will remain located in Indonesia regardless of the regulation status. So long as there isademandformineralresources,therewill becompaniesvyingfortheminingrights.

This policy will also bechallengingtoapplytoexistingminesandminingpermits,hence the addition of the tax on companies without plans. This will hopefully entice companies to submit their plans, without punishing them too much forrulesthatcameaftertheirpermitswere granted.

Overall, this addition to the AMDAL process will force companies to also reconsider their actions before they take them. In lieu of cost cutting methods that are environmentally

hazardous, companies may opt to spend more on their mines to reduce theinitialenvironmental harm and save on the eventualcleanup.Thislong-termmindsetwillforcecompaniestoinitially confrontthedirectharmsthattheycause.

CertificationoftheArtisanalandSmall-ScaleGoldMiningIndustryonForeignOwned MiningConcessions

Artisanal and small-scale gold mining (ASGM) supports over one million people’s livelihoods in Indonesia, whether they produce gold formally or informally (“Indonesia: Phasing” n.d.). Informal goldminersmineforgoldwithoutproperpermits.Duetothesomewhat illicit nature of the industry, specific measurements are not available, but it is estimated thatthe ASGM industry produces between fifty and one hundred tons of gold annually, which is worth threetofivebilliondollars(GoldISMIA2020).

ASGM miners can earn up to six million dollars a month (Paddock and Dean 2019). Informal mining can provide a temporary income or a permanent income for people in need without much training. The complicatedandexpensivelogisticsassociatedwithacquiringagold mining permit inhibit informal gold miners fromacquiringpermitsinmanyinstances.Withouta permit,theminerslackofficialoversight.

One of the easiest gold mining methods relies on mercury to separate the goldfromore. To isolate gold, the miner put rocks and ore in a barrel and pulverize the mixture with heavy bars. The miner adds liquid mercury to the barrel andthentheminerseparatesthemercury-gold amalgam from the other rocks.Finally,themercury-goldamalgamwillbeheatedtovaporizethe mercuryandleavegold(EsdaileandChalker2018).

Using mercury in gold mining requires low start-up costs,whichallowspoorindividuals to make money quickly without much investment. But mercury does have significant long-term costs. Mercury creates socio-economic dependency rapidly, making it an agent of poverty that exacerbates inequality. Many ASGM miners initially start using mercury as a way to mine gold and escape poverty, but mercury-related health consequences quickly create more medical bills fortheindividualtorelymoreheavilyonmercurytopayoff(Spiegeletal.2018).

As a neurotoxin, an individual may face mental disturbances, neuromuscular changes, nerve damage, emotional changes, muscle weakness, and more after prolonged exposure to mercury (US EPA 2022). Mercury is extraordinarily dangerous because the human bodycannot expel it, allowing mercury to bioaccumulate (Rice etal.2014).Abouthalfamillionpeoplehave mercurypoisoninginIndonesia,manyfromgoldminesthatusemercury(Paddock2019).

In Indonesia, the ASGM sector released approximately 195 tons of mercury (Gold ISMIA 2020). Once released into the environmentasasolid,liquid,orvapor,mercurycansettle and become methylmercury (NHDES 2019). Methylmercury can enter the food chain and can travel vast distances, especially amidst food chain globalization. As mercury bioaccumulates in thefoodchain,itwillslowlypoisonthepeoplewhoconsumethemercurycontaminatedfood.

Miners are at least somewhat aware of the impacts mercury has on them and the environment, but the market does not correct the mercury externality (Gold ISMIA 2020). The damage caused by mercury is not accounted for in the price of gold, creating a negative externality. There is both a time and distance element to the people who feel the burden of mercuryuseandwhilesomeoftheminersdofeeltheexternalityoftheirmining,othersdotoo. The government has attempted to transition formal and informal ASGM miners from mercury to more sustainable methods on several occasions, but the miners are especially skeptical towards government run projects. The government has gone so far to introduce two

alternative gold-processing technologies to hopefully reduce or eliminate mercury use in gold processing.

The government has also proposed and run a certification program, but it has been challenging to get miners to meet all the necessary environmental requirements (Gold ISMIA 2020). Forfearthattheywillbecaughtnotadheringtoallenvironmentalregulations,fewminers actuallytrytogetcertified.

The poorly defined and unenforced property rights in Indonesia’s gold mining hinder regulation attempts. ASGM miners are located across Indonesia, but many are illegally occupying land that they do not have the proper permits to be on. Some of the informal miners also occupy land on mining concessions, maintained by large-scale mines. Most of the 7,000 miners in West Sumbawa are based on a mining concession owned by Amman Minerals, an Indonesian mining subsidiary of AmericanownedNewmont.Thisminingconcessionevenhada permanent mining community within it for informal miners, highlighting how open informal miners are about their location on mining concessions (Paddock 2019). The insecure property rights exacerbate the mercury pollution because miners have high discount rates because they have little stake in the land they pollute. When small-scale gold miners lack secure, formally recognized access to resource rights and are treated as criminals by companies and government agents,theriskofmercurypollutionincreases(Spiegeletal.2018).

The second policy centers ASGM informal miners to decrease poverty, reduce mercury pollution, and support domestic industries. Indonesia should require foreign owned goldmining concessions to allocate 10% of the concession for artisanal and small-scale gold minerstomine on. The gold produced by ASGM miners will be certified and partially-subsidized by the government, so long as they do not use mercury and demonstrate attempts at following other environmentalregulations.

To legitimize and formalize the artisanal and small-scale gold mine industry foreign-ownedgoldmineswillberequiredtoofferasmallpercentageoftheirlandtosmall-scale gold miners. Local miners will be offered the opportunity to miner in the small-scale mining portion of the concession, in ordertodemonstrateagovernmentcommitmenttosupportinglocal miners as well as foreign companies. The number of small-scale miners offered permits will depend on the size of the land, but it will be done in a way to maximize the number of permits andmineefficiency

Miners with permits for this area will be subject to government monitoring. The goal of the monitoring will be to promote safe mining practices, not to punishminersfornotbeingable to meet environmental requirements.However,mercuryuseistheonlyenvironmentalregulation that the miners must follow. Any evidence ofmercuryusewillresultinimmediaterevocationof the permit. Following monitoring, the government will work with the miners tosupportthemin theirpursuittofollowenvironmentalregulations.

Miners with a certification will be eligible for a subsidy from the government. The government willpartiallysubsidizegoldpricessothatgoldwiththiscertificationwillbecheaper than the market price. The subsidy highlights government commitment to promoting local miners.

This policy will legitimize much of the gold mining industry, which will hopefully stimulate the local economy further. The gold mining industry isoneofthemaincontributorsto some local Indonesian economies. The formalization will hopefully reduce poverty and inequalitybygivingminerslegalemploymentwithgovernmentsupport.

Ideally, the miners will also be more efficient and profitable because they will reduce negative externality producing techniques and have more efficient, permanent settlements. This will hopefully increase gold production for these miners, which will contribute to the local economy. In West Sumbawa, the legal gold mining sectors followed by illegal sectors are the largest economic contributors (Paddock 2019). Increasing efficiency will add more economic contributionsforthebenefitoftheRegencies.

This policy will increase the tax base. By allocating permits for informal miners, the newly formal miners will join the tax base because their income will be counted as taxable income. The formal miners will have topaytaxes,whichwillsupportthedevelopmentofpublic resources.Thepublicresourceswillsupportreductionsininequalityforotherminersstruggling. Thispolicywouldslowlycreateamarketincentivetostopmercuryamalgamationingold mining. By certifying and partially subsidizing mercury-free gold, the government enables consumers to make a decision on whether or not tosupportmercuryprocessedgold.Consumers will have the power to makethedecision,whichwillhopefullyleadtoindustryshiftsawayfrom mercury.

This process also embeds monitoring into small-scale mining. Due to permitting requirements, the miners will need to work towards becoming compliant with environmental regulations and demonstrate improvements over time. This will force miners to slowly become compliant over time, within their capabilities as to not turn them away from formalization altogether. The monitoring will benefit the community because it will make it harderforminers tobeenvironmentallyharmfulintheirwork.

One of the most significant benefits will be the subsequentreductioninmercuryuseand emissions.Becausemoreminersareformalizedandmonitoredformercuryuse,mercuryusewill fall.Mercurybioaccumulatesandbiomagnifies,soreducingmercuryemissionquicklyiskeyand this policy does just that. The cheaper subsidized gold will ideally compete with the gold using illicit mercury processing, which will encourage miners to obtain permits instead of using mercury. The market incentives and monitoring will reinforce plateauing mercury emissions in the ASGM sector This is a benefit the world will feel as there will be lessmercurypollutionin the food chain or in the atmosphere. Mercury has the ability to travel vast distances, so preventingmercuryemissionsfromthesourcewillbeaglobalbenefit.

Furthermore, the government support will provide the basis for policy and program research. This researchwillallowthegovernmenttobetterunderstandthechallengessmall-scale mines face and will allow the government to support informal miners without permits. The research, communication,andunderstandingmayonlybeasmallpartofthisproposal,butitacts as a crucial next step towards formalizing the ASGM industry on a larger scale. It will also provide the basis for policy changes that are rooted in understanding to supportminersandstop mercuryuse.

This policy would support individual miners as well to alleviate poverty and mercury pollution, instead of promoting more foreign owned mines. This is crucial because foreign investment often leaves Indonesia followingresourceextraction.Ontheotherhand,localminers keep therevenuesandeconomicbenefitswithintheircommunities.Byformalizingtheirindustry and aiding local miners, the Indonesian government helps keep Indonesian natural resource profitsinthecountry,insteadofinthehandsofforeigncompanies.

And finally, the subsidy will make Indonesian gold more globally competitive.Thiswill support Indonesian gold markets and ideally promote demand, resulting in Indonesian gold

purchases, thereby supporting ASGM miners and communities. The economic benefits will ripplethroughtheeconomy

The subsidy will be expensive, despite the fact that it is a partial subsidy. The national government will undertake the cost in order to promote Minamata Convention compliance and ideallymitigatetheeconomiccostsofmorewidespreadmercurypoisoning.

The foreign companies will also not see this as a fair deal for them to consent to. However, gold is a natural resource that only some countries are endowed with, thus it is unlikely that they can or will relocate based on this new policy. This will simplyaddtothecost of mining in Indonesia, which foreign companies hugely benefit from at the expense of Indonesians. Foreign mining companies are a captive audience because the mines cannotmove, sotheywillhavenochoicebuttoaccepttheseterms.

Thatbeingsaid,currentlyoperatingforeignminingcompanieswillnotbesubjecttothese rules. Until these companies renew their permits, they will be subject to the original terms of their permit. This is not ideal for Indonesians, especially given the many benefits of thispolicy, but permits are only grants forasetamountoftimeandwilleventuallyneedtoberenewed,thus forcing companies to agree to these new terms. Instead of viewing this as a loss, these existing firmscreateasmalllaginwidespreadpolicyimplementation.

Unfortunately, this policy also fails to actively contain anthropogenicmercuryemissions in theASGMindustry Ifitwerepossibletoreducemercuryemissions,thenthatpolicywouldbe implemented, but past attempts have demonstrated how challenging it is to limit mercury emissions. This policy targets some of the root causes of mercury use in gold mining: insecure property rights and poverty. In addition, the monitoring and research will hopefully support the designofmorepoliciesmorespecificallytargetedatmercuryemissionreductions.

BanningForeignOwnedCoal-FiredPowerPlants

Despite international commitments to climate change mitigation, Indonesia continues to construct and rely on coal-fired power plants for their energy, with the support offoreignbanks and developers. The Suralaya power plant is one example of a mostly foreign funded and supportedproject.

The Suralaya power plant is located on the coast in northwest Java approximately 75 miles from Jakarta. The power plant already has eight existingcoalplants,butthereareplansto add two more by December 2024. The new plants are expected to add 2,000 MW of electricity capacitytoapowerplantwithanexisting4,025MWofcapacity(Syahni2021).

The existing power plant has already caused public health concerns, agricultural issues, and water pollution. Increasing the capacity this dramatically,willlikelycauseevenmoreissues beyond the existing concerns. Black ash carried by the wind covers the entire town when the plant is active (Lee 2021). These visible particles when inhaled can be dangerous to peopleand are only a fraction of the particles actually released by the plant. Coal-fired power plants are among the main emitters of anthropogenically released mercury. In addition to mercury, this powerplantisreleasingothergreenhousegassesthatdirectlycontributetoclimatechange.

The local fisheries have suffered immensely from this creation of this power plant. As coal is unloaded from ships at the coast, the coal dust is thrown into the sea, killing fish. The local fisheriesusedtobeamainstayforthelocaleconomy,butlikethefish,thefisheriesarenow dying(Lee2021).

The Export-Import Bank of Korea, KoreaTradeInsuranceCorporation(K-Sure),Korean Development Bank, and KEPCO– all South Korean public financing institutions– are funding

$1.9 billion of the $3.5 billion project. KEPCO holds a 15% stake intheproject.Thefundingis expected to continue despite Korean concerns over whether or notpublicmoneyshouldbeused to finance a coal plant. Various Korean legal frameworks encourage companies to do business overseaswithoutanystipulationsforcarbonemissions(Lee2021).

Indonesian regulations make this addition legally questionable. Organizations allegethat the approved 2017 permits for the plant do not meet the Environmental Ministry’s 2019 regulations, which cap sulfur dioxide, nitrous oxide, fine particulate matter, and mercury emissions (Syahni 2021). Even if the newer regulations do not apply, Indonesia has mostly committed to retiring coal as an energy source by the mid-21st century. PLN, the national electricity company and an investor in the project,hasalsocommittedtoabandoningcoalplants (Jong2021b).

South Korea has been phasing out coal domestically, yetitcontinuestofundcoalabroad (Lee 2021). Indonesia should not become a polluting industry haven for foreign investors from countriesthatwouldnottolerateitwithintheirborders.

Suralaya Power Plant is one example of a coal plant with foreign investment that will have significant environmental concerns. Of twenty-two coal power deals between 2010 and 2017, 98% of the $17 billion in costs will be funded by international sources. Most of the international funding comes from China, Korea, and Japan. Furthermore, despite only domestically owning approximately 39% of these newpowerdeals,100%ofthegreenhousegas emissions will be counted towardsIndonesia’snationalemissionsandmanyoftheconsequences willbebornebyIndonesia(“PublicFinancetoIndonesianCoal”n.d.).

In addition to the direct environmental concerns, the financing of coal power predominantly benefits the financiers. The foreign funders will not see the immediate environmental toll, nor willtheyseetheirrelevanceoftheadditionalcapacity Indonesia’spower expansion plans, if implemented fully,wouldcreateovercapacity(“PublicFinancetoIndonesian Coal” n.d.). This overcapacity will not benefit the Indonesian people, but the investors will still seereturnstotheirinvestmentdespitethecompleteredundancyofit.

While most of Indonesia is fully electrified, there are certain provinces lacking energy provision, yet the energy plants are not located there, further emphasizing that the beneficiaries of these power plants are not Indonesians, but rather the foreign investors (Simatupang et al. 2021).

Located in the Pacific Ring of Fire, Indonesia holds access to 40% of the world’s geothermal resources (Ha 2021). The government identified over 300 sites with geothermal energy potential that share 28 GW of energy potential, but Indonesia has only tappedinto4-5% of their potential (ASEAN Post Team 2018). With such a large, renewable, and untapped domestic energy source, relying on foreign funded fossil fuels lacks sense. Instead of foreign investment in non-renewable and toxic energy sources, Indonesia should invest in its own resourcestopromotelong-termenergyindependenceandself-reliance.

The final policy reform is to shift foreign direct investment away from nonrenewable energy resources. To support Indonesian energy independence, capacity, and sustainability, Indonesia should ban the foreign financing of non-renewable energy sources and work with currentprojectinvestorstotransitionthefundingtorenewableenergysources.

Despite vague statements on the phase out of coal energy, Indonesia continues to accept foreign financing for coal-fired power plants. This is not asustainableuseofforeigninvestment if Indonesia intends to keep its word andphaseoutcoal.IfIndonesiadoesnotintendonkeeping

its word, then these coal plants will continue to harm the environment and humans irreversibly andcontributetoclimatechange.

Banning foreign funded coal-fired power plants will significantly reduce the related pollution. Most coal plants are developed and operate with substantial foreign funding, so removing funding will likely halt coal projects, at least until domestic funding sources can find the necessary funds. Halting the development of coal-fired power plants will protect communitiesandtheenvironmentfromfutureharm.

The reduction in coal related emissions will prevent emissions of sulfur dioxide, nitrous oxide, fine particulate matter, and mercury emissions. On its own, the Suralaya power plant expansion would likely contribute 19,354 kg of sulfur dioxide, 12,960 kg of nitrogen dioxide, and 17 million tons of carbon dioxideannually(Renaldi2021).Haltingcoalprojectsintheearly stages will prevent the addition of millions of tons of greenhouse gasses into the atmosphere, which if done would have catastrophic impacts of climate change. The global impact of these greenhouse gasses would be significant, but the emissions would also be felt on a local level. Indonesia has significant air quality issues, so to stop the addition of more air pollution would seemanybenefits.

The power sector represents approximately 27% of Indonesia's total carbon dioxide emissions (Climate Transparency 2020, 5). Coal based power adds significantly to these emissions, so not adding totheseemissionswillalsolikelyhelpIndonesiameetitsParisClimate Agreement. Indonesia meeting their goals will be politically beneficial. Failing to meet these goals as a result of coal power will not only drive climate change, but it will hurt Indonesia’s internationalreputation.

Reducing coal power will also support Indonesian development of long-term investments. Coal-fired power plants are notasustainablelong-terminvestmentgiventheglobal climate, especially if Indonesia intends to stop using coal as an energy source in the next few decades.

Removing foreign financingsupportofcoalpowerplantswillfreeupIndonesianfunding because the funding will transition to other investments. Other investments will likely see more return to their investment because they will have a longer lifetime to see the full return to investment.

In order to keep investment in Indonesia, the government will promote investment in renewable energy. This will likely be much more lucrative in the long-term because they are unlikely to be phased outintheshort-run,unlikecoal.Theseenergysourceswillrequirelaborin the long-term to support electricity production, which is ideal for Indonesian people seeking work.

These renewable energy sources also make more logistical sense for Indonesia. As a nation composed of remote islands, coal plants are unlikely to be able to meet energy needs where they are currently located. The Suralaya power plant will provide energy for Java, the most electrified and the most urban island (IEA 2022). The other islands that need electricity moreurgentlyaremuchmoreremote,makingcoalplantsalessfeasibleoption.

However, this policy does run the risk of creating a sudden stop of foreign financing in the energy sector. Foreign direct investment is 1.8% of Indonesia’s gross domestic product (World Bank 2020). This policy could be interpreted as a sudden aversion to foreign direct investment, when it ismostlyaimedatbanningunsustainableanddisadvantageousinvestmentin Indonesian energy infrastructure. This will hopefully be mitigated by the policy stressing the transition of funds from coal investments to renewable investments. This will hopefully

demonstrate to investors that Indonesiaisstillwelcomingtoforeigndirectinvestment,butwants toinvestinbeneficialinfrastructure.

Itisalsopossiblethatthiscouldcomplicatefundingforprojectsthatarebeingdeveloped. Project funders may withdraw funding from coal projectsfearingtheclearandcurrenttransition away from coal. But ideally investors will realize that there is a bounty of investment opportunitiesinrenewableenergyandinsteadwillinvestthere.

Conclusion

Unchecked foreign investment projects have and will contribute to significant externalities. The Grasberg mine is one of the main symbols of mining rights abuse with both legal and illegal environmental damage without significant consequence. Furthermore, foreign gold mining concessions contribute to rampant informal mining that results in mercury emissions. And vast investments in coal fired power plants damage the surrounding environments and local economies, despite renewable alternatives. These are some of the more egregious examples of harmful foreign investment,buttheyexistnonethelessandharmthelocal communities.

Indonesia is internationally regarded as a key player in biodiversity, yet their current policies do not prioritize that status. The existing policies allow foreign companies to invest in Indonesia, at the expense of the Indonesian people. These policies check the power of foreign investorsandsupportlocalanddomesticgrowth.

Through thesethreepolicies,Indonesiacanenjoythevastbenefitsofglobalization,while promoting local economic growth and environmental preservation for generations to come. While these policies are mostly aimed at transitioning Indonesian investment culture, foreign direct investment is one of Indonesia’s main benefits in globalization, so it only makes sense to furtherbenefitfromforeigninvestment.

Indonesia’s natural resource wealth will enable these policies to take effect without too much of an economic impact. Companies are unlikely to find comparable gold mines or energy industries elsewhere, forcing them to accept more favorable terms of investment for Indonesian people. The Indonesian government has immense influence over foreign investment because of how unique many of the investment projects are toIndonesia,sothegovernmentshouldtapinto thatpower

Indonesia cannot and should not sacrifice its natural resources for greedy foreign investors who do not feel the consequencesoftheiractions.Indonesia’snaturalresourcesshould benefitIndonesiansandglobalizationpoliciesmustreflectthatview.

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PLANCOLOMBIA:THEEFFECTSOFAERIALERADICATIONOFCOCACROP

ByGraceFang

Background

Richard Nixon formally declared a “War on Drugs” in 1971. Since then, different anti-drug policies have been carried out in producer, transit, and consumer countries. Datafrom the United Nations Office of Drugs and Crime(UNODC)indicatethatColombiawasproducing 74% of the world’s cocaine supply by 2000 and that the US is the largest consumer of cocaine (Rozo 2014). In September 1999, the governments of Colombia and the US launched a joint strategy to tackle the illegal business and organized crime groups under Plan Colombia. According to the US Government Accountability Office, the US funded an average of US$540 million per year for the military component of this plan between 2000 and 2008. The US government spent around US $6 billion from 2000 to 2010 (Rozo 2014). The Colombian government spent approximately US $812 million per year; together, these expenditures represented about 1.2% of Colombia’s average annual GDP between 2000 and 2008(Mejiaand Restrepo 2016). Thus Plan Colombia is the largest anti-drug policy that has ever beendeployed inadrug-producingcountry.

Plan Colombia included aerial spraying of herbicides to kill coca crops, manual eradication, control of chemical precursors used intheprocessingofcocaplantsintothecocaine drug, destruction of cocaine laboratories, and capturing of drug shipments (Rozo 2014). There were two main objectives: first, reduce production of illegal drugs by 50%withinsixyears,and two, improve security conditions in regions that are controlled by illegal armed groups (Rozo 2014). By reducing the supply of Colombian cocaine, the availability of cocaine and its harms wouldbedecreasedworldwide.

TheoreticalFramework

Rational choice theory is the economic framework behind anti-drugpolicies.Putsimply, economists view the decision to engage in illegal activities as rational, and thus suggest incentives andpenalties,whichwouldmodifybehavior(Mejia,Restropo,andRozo2017).When an activity becomes more costly or less profitable to engage in, individualsarelessincentivized to engage in that activity. However, some may argue that criminals do not exhibit rational behavior,andthereisalackofevidenceinthisdebateasawhole.

Ibanez and Martinsson (2013) investigated individual motivations and measured behavioral responses to aerial spraying with a framed field experiment. A framed field experiment is an experiment with a nonstandard subject pool in “actual settings”, which means they make real-life decisions with real stakes. Ibanez and Martisson chose this due to thesocial norms associated with illegal activity. Sampling farmers familiar with coca cultivation was a preferable method for analyzing the effectiveness of anti-drug policies. In the framed field experiment, the participants were randomly and anonymously matched in groups of five. Each subject was given 10 experimental points that represented the amount of land, labor and capital available to themforinvestingintwoagriculturalactivities:cocaorcattle.Theydeterminedhow much they wanted to invest in each. Each person participated in nine treatments that combined three different levels of incentives and three different levels of deterrences. The negative externalities generated by coca cultivation were included in the form of an externality that reduced the income for every subjectinthegroupby0.17.Intotal,164producersparticipatedin

13 experimental sessions. The sample was representative of the rural Colombian population in termsofageandeducationlevel.

Ibanez and Martinsson classified the producers’ behaviors into 4 types. They found that 38% of the participants are classified in the low level of morality and low levelofriskaversion (Ibanez and Martinsson 2013). This type of producer (type 1) is very likely to invest in coca (about 90% did) and invest relatively larger amounts than other groups. Type 2 makes up 27%. They have a high moral cost and a high level of risk aversion. Thistypeofparticipantsarevery unlikely to invest in coca (only 3% did) or invest relatively little. The remaining 35% of the participants are classified in two types that have different degrees of risk aversion andmorality. The study found that one third of farmers have “moral costs”thatarehighenoughtodeterthem from investing in cocaandrequirenoincentives(IbanezandMartinsson2013).Twofifthsofthe participants would require that the relative return of the legal activity were 1.8 times that from coca, or would require that the risk of eradication were above 60%tostopcultivatingcoca.The results suggest that incentives should be used in areas that are better integrated to markets, whereasdeterrenceshouldbeusedineconomicallydepressedareas.

MeasuresofEffectiveness

There is little empirical microeconomic evidence on the effectiveness of this program; most of the related research are of theoretical models adjusted with aggregated data in simulations or econometric analysis based on time series (Rozo 2014).Mejiaetal.(2017)states that the most positive (in favor of) estimate of the effectiveness of spraying indicates that for each additional hectare sprayed,cocacultivationisreducedbyabout0.035hectares;meaning,in order to reduce one hectare of coca, almost 30 hectares would have to be sprayed, at a cost of approximately US $74,000. These studies all conclude that the destruction of coca crops is an ineffective strategy; however, these studies may be limited by endogeneity (correlation with an error term, for examplewithanomittedvariableorsimultaneitybias,whentheoutcomevariable isapredictornotaresponse)withtheusageofaggregatedataandtheoreticalassumptions.

Rozo (2013) uses satellite information on the location of coca crops between 2000 and 2010 in Colombia to identify the effectiveness of herbicide spraying. The data collection was done by the Integrated Monitoring System of Illicit CropsoftheUNODC.Rozoalsostudiesthe effects in the short term (12 months) and medium term (24 to 36 months) to check if spraying leads to coca production in neighboring areas. Rozo also uses governmental sources to identify theeffectsoftheprogramonhomiciderates,forceddisplacement,schoolenrollmentanddropout rates, infant mortality, and poverty rates. Rozo’s results suggest that coca cultivation is reduced by 0.07 hectares per additional hectare sprayed, but the negative externalities and spillovers of this program ensures that the costs are far higher than potential benefits (2013). Rozo uses the variation created by restrictions (indigenous territories and natural parks are restricted from spraying) and time variation of US anti-drug expenditures to isolate the exogenous variable of spraying(2013).

Rozo’s results suggest that to eradicate 1 hectare of cocapersquarekilometers,spraying will have to increase by 14.3 hectares per square kilometers (2014). Shealsofoundnoevidence that coca production increases in neighboring areas, suggesting that producers are going further distances from the treated area, or even to other countries with less enforcement (Rozo 2014). Spraying worsens the welfare conditions in targeted areas: when the area sprayed increases by 1%, poverty rates increase by0.22%(Rozo2014).Sprayingalsoresultsinworsenededucational and health conditions: a 1% increase reduced secondary school enrollment by 0.11% and

increased dropout rates by 0.04% (Rozo 2014). Evidence shows that households perceived a drop in their income when crops were sprayed (Tobon and Restrepo2011;Espinosa2009).This suggeststhatolderchildrenhadtocompensatefortheincomeshock.

Rodriguez (2020) also researched the effects of aerial spraying on child labor, school attendance, and education from 2008 to 2021. Rodriguez uses a model which includes the days in which high speed wind made spraying difficult to correct for selection bias. The results showed that aerial spraying was associated with a 1% increase in the probability that children aged 12-17 would work instead of attending school (Rodriguez 2020). It was also associated with a 0.15% increaseintheprobabilitythatoldersiblingswouldfallbehindinschool,anda5% increase in the probability that younger siblings would drop out (Rodriguez 2020). Various studies claim that the primary reason for child labor is poverty, which is particularly relevant considering coca-growing households have high levels of poverty Coca cultivation also occurs in regions with less access to public services and lower-qualitystateinstitutions,whichincludes schooling.Thiscompoundsconsideringthatchildrenwhoworkinillegalmarketsaremorelikely tocontinuethattypeofworklateroninlife(Sviatschi2019).

Rozo also found that when area sprayed increases by 1%, infant mortality increases by 0.07%;thiscouldbeacombinationofherbicideexposureorincomeshock(2014).Rozo’sresults also indicate an increase of violence after implementation; area sprayed increasing by 1% correlated with the increase of homicide ratesby0.67%andthenumberofindividualsdisplaced by 4.97 (2014). This could be explainedbythemilitaryinspectionsthattakeplacepriortoaerial spraying, which increases the likelihood of confrontation between law enforcement and drug traffickers. This could also be explained by traffickers retaliating to coca eradication. These effectsappeartodisappearinthelongterm.

Rozo and Mejia later worked together to publish this research in The World Bank Economic Review. Mejia,Rozo,andRestrepo(2017)usedsatellitedatabetween2000and2010; they used the 10kmbandneartheborderofEcuadorthatwasrestrictedfromsprayingtoidentify the effectiveness of that variableoncocaproduction.Theyfoundsignificant,butsmall,deterrent effects of spraying (Mejia et al. 2017). The regression discontinuity method estimated that the area within the restricted band was approximately 10% less likely to be sprayed than the area neighboring it; farmers responded by planting 0.3 less hectares per square kilometer in the sprayed region (Mejia et al. 2017). A different methodology (conditional differences in differences estimator) yielded a similar result, with an average of 0.22 less hectares per square kilometer planted in the sprayed region (Mejia et al. 2017). They concluded that spraying one additional hectare reduces coca cultivation by 0.022 to 0.030 hectares in a year (Mejia et al. 2017).

These findings all confirmed that rational choice theory holds true: deterrence discourages farmers from growing illicit crops. However these findings also conclude that the effects are too small and thesprayingofcropsistoocostly ForeachdollartheUSspendsonthe spraying campaign, the Colombian government spends about $2.20 on the crew members and cleanup beforehand (Mejia et al. 2017). These figures imply that in order to reduce cocaine supply in retail markets by 1kg, about $1.6 million dollars need to be spent on aerial spraying campaigns, similar to the result reported by Mejia and Restrepo (2013) using a different methodology.Incomparison,otherpolicies,suchasinterceptingtransportsorpreventionpolicies aremorecost-effective(Mejiaetal.2017).

The total area of coca production in Colombiadecreasedsince1990,butthequantitydid not, due to increase of cocaine yield per hectare (UNODC 2018). In 2001, it was possible to

produce 4.2kg of cocaine per hectare of coca, whereas in2010,itwaspossibletoproduce5.1to 6.8kg per hectare; indicating coca producers and traffickers were modifying their behavior in response to enforcement, thus ensuring a stable supply (Mejia et al. 2017). Ibanez and Klasen (2017) used a different methodology: panel data at the household level, instead of aggregated regional data. Using revealed preference data from interviews, they estimated the elasticity of coca cultivation supply. They also discovered that the supply of coca is inelastic to increases of theriskoferadication(IbanezandKlasen2017). Wholesale price of cocaine has also remainedrelativelystable,foundthroughamodelof downstream cocaine markets (Mejia and Restrepo 2016). They found that 1% reduction incoca cultivation reduces cocaineinthemarketby0.0025%:anincreaseinthepriceofcocaleafdueto deterrence only translates into a small increase in consumer prices; the demand isalsoinelastic, thus the small increase barely affects consumption (Mejia and Restrepo 2016). There is also downstream adjustment to the shock with substitutions towards other inputs ofproduction,such aschemicalprecursors,transportation,orgrowinginothercountries.

Health-SpecificEffects

Since Plan Colombia was created in 1999, an average of 128,000 hectares of land has been sprayed each year, with a peak of 172,000 hectares in 2006 (Camacho and Mejia 2015). Spraying is carried out by American contractors using small aircrafts towards targeted areas where coca has been detected by satellite imagery.SprayingusessubstancessuchasRoundup,a commercial weed killer, whose main active ingredient is glyphosate. This herbicide contains a surfactant, polyoxyethylene tallow amine (POEA), which assists glyphosate in penetrating the plant’s leaves. However, the surfactant used in Colombia is Cosmo-Flux 411f, which is not approved in the US since it was not subjected to the same testing requirements. Glyphosate inhibits an enzyme involved in the synthesis of aminoacids,whichkillstheplant.Glyphosateis absorbed through foliage and is not effective otherwise, meaning the plant has to be actively growing. It is important to note that most studies isolate the chemical glyphosate to determine clear causative or correlative relationships with controlled variables. Thus, the mixture of glyphosate with other ingredients, such as POEA, ortheproductRoundupspecifically,havehad fewerexperiments.

In March 2015,theInternationalAgencyforResearchonCancer(IARC)determinedthat there is evidence that glyphosate is carcinogenic to humans, specifically leading to increased risks for non-Hodgkin lymphoma. This led the IARC to reclassify glyphosate into category2A: “probably carcinogenic to humans.” Colombia suspended spraying after this finding. Camacho and Mejia research the health effects of glyphosate spraying with dataonsprayingpatternswith medical consultations, emergency room visits, hospitalizations, and procedures between2003to 2007, which came from all health service institutions in Colombia (2015). Camacho and Mejia note that most evidence on negative externalities comes from field work that has issues of internal and external validity, with confounding factors that make it difficult to isolate aerial spraying as a direct cause (2015). One of the biggest confounding factors is the spatial correlation between coca cultivation and spraying locations, which can be argued that coca cultivation is the generator for negative externalities. Camacho and Mejiatacklesthisissuewith precise information on location andtimingofsprayingandenablesaquasi-naturalexperimentin which they can establish a precise link between the date and magnitude withhospitalvisitation; they also observe individuals over a period of five years and are able to construct

individual-level panelsthatisolategenetic,behavioral,orotherheterogeneities(2015).Thisrules outomittedvariablebiasespresentincross-sectionalstudies.

Since spraying campaigns cannot beanticipated,theseeventsareexogenousshocksfrom the individual’s point of view, which strengthens the internalvalidityofresults.Theyareableto include individual fixed effects, control for baseline health status, and determine that this is the closest to a randomized experiment that can be achieved (Camacho and Mejia 2015). They observed approximately 9.4 million individuals, more than 45 million doctor visits, and 2.5 million birth registrations; this large sample size assisted in robust and precise findings. They estimate individual fixed effects regressions that test the relationship between increase in probability of a health problem with exposure to herbicides for the same individual, with differentexposurelevelsatdifferenttimes.

Camacho and Mejia concluded that glyphosate spraying is associated with significant increases in issues regarding dermatology, respiratory systems, and miscarriages (2015). They controlled for time-invariant characteristics such as place of residence, seasonal illnesses, or pre-existing health issues, resulting in a stronger interpretation of results that assert a causal relationship between glyphosate exposure and health issues. However, they are unable to concludelong-termeffectssuchaslowerlifeexpectancy,qualityoflife,orproductivityfromthis data. Their results imply that the aerial spraying of herbicides has a negative effect on the populationsexposed(CamachoandMejia2015).

There is a wide variety of medical and epidemiological literature on thehealtheffectsof glyphosate, but there is no definite consensus. Medical literature consists primarily of cross-sectional studies comparing health outcomes among those with and without exposure or laboratory animal experiments (Camacho and Mejia 2015). A main limitation is the inability to demonstratedirectcausalrelationships;positivecorrelationsorassociationsareoftenbiasedwith confounding factors. For example, these populations could have other risk behaviors such as smoking or alcohol consumption. Earlier we had establishedthatcoca-growingpopulationstend to be lower-income, rural, have less access toandlower-qualitysocialgoodsandinstitutions,all while also facing more violence from militias or state law enforcement. These factors all compoundandincreasetheprobabilityforadversehealthrisks.

Sanborn et al. (2007) reviewed 124 studies since 1992 andconcludedthatthereisstrong evidence pointing to positive associations between pesticide exposure and 3 non-cancer health outcomes, the strongest for neurological abnormalities, reproductiveoutcomes,andgenotoxicity (ability to cause intracellular genetic damage). 10 dermatological studies were reviewed, highlighting higher prevalence of irritations, dermatitis, rashes, eye symptoms, and other skin disorders in exposed groups. Sanborn et al. (2007) found evidence of glyphosate exposure on neural disorders, abnormal reflexes, psychomotordysfunction,moodchanges,loweredcognitive function, and depression and anxiety. They also found a connection between exposure and later neurodegenerative diseases such as Parkinson’s and Alzheimer’s. Sanborn et al. (2007) found positive associations between pesticide exposure and chromosome aberrations, which could present itself as miscarriage, birth defects, sperm abnormalities, or higher cancer probability Most studies on non-Hodgkin lymphoma and leukemia showed positive associations with pesticide exposure, with glyphosate being a compound that has elevated risk (Sanborn et al. 2007).

Sherret (2005) reports anecdotal evidence of respiratory problems after aerial spraying which led to glyphosate inhalation, which is corroborated by experimental evidence on animals (Cox 1995). Cox asserts that glyphosate products are acutely toxic to animals, with Roundup

being even more toxic than glyphosate by itself due to the inclusion of the surfactant POEA (1995). Cox foundthatconsumingglyphosateinanimalscausedvariouskindsofcelldeath,fetal loss, reproductive defects, and tumors over a long period of time (1995). The impact of glyphosate on animals should not be overlooked, considering the potential harms to household income that comes with sick or dead livestock. Espinosa (2009) provided anecdotalevidenceof dead chickens, sick cows, contaminated water and ruined crops after aerial spraying. Rivera (2005) and Osorio (2003) found that eradication ledtoalossofassetswithoutreducingthecoca cropcultivation;duetotheseconditions,farmerswereevenmoreincentivizedtoreplantcoca. Laboratory studies have researched the effects of glyphosate on human reproductive cells: Benachour and Seralini (2009) findthatexposureatlowdoses(similartoresiduesinfood) causes premature death in umbilical,embryonic,andplacentalcells.Cox(1995)foundthatthere is decreased female fertility and lower birth weight in animals after ingestion of glyphosate-exposed products. Papers by Sanborn et al. (2007) and Regidoretal.(2004)indicate that exposure prior to conception is correlated with first-trimester miscarriages; direct exposure oflargeamountstothefatherisalsolinkedtohigherriskoffetaldeath,withalargereffectinthe three-month-period prior to conception. Sanborn et al. (2007)alsoreportanassociationbetween herbicide sprayingandlowerlevelsofspermconcentration.Anencephaly,abirthdefectinwhich a baby is born without parts of the brainandskull,hasalsobeenassociatedwithdirectexposure of the mother during the preconception period (three months prior and into the third month of pregnancy).

However, many studies have come to the opposite conclusion. Solomon et al. (2007) indicate that the concentration of glyphosate used in aerial spraying in Colombia are low and don’t have significant risks to humanhealth;contaminationwithwaterisinfrequent,andcontact with organisms other than plants is unlikely Solomon et al. (2007) admits that glyphosate and Cosmo-Flux will be present in larger quantities on surface water that is sprayed, but claim that there is no information regarding surface water proximitytoregionsthataretreated.Solomonet al. (2007) concludes that physical injury due to other reasons during coca eradication is much more adverse than glyphosate exposure, and that environmental risks are negligible. They do concede that overspraying poses moderate risks in aquatic organisms and that there is no data available regarding these occurrences (Solomon et al. 2007). Various studies that have tested glyphosate and Cosmo-Flux on amphibians also claim to have negligible toxic effects (Bernal, Solomon,andCarrasquilla2009).

Williams et al. (2012) also cite cross-sectional and laboratory studies suggesting that exposure is not related to reproduction, miscarriages or birth defects, finding no adverse effects in rats. Williams et al. (2000) state that glyphosate and Roundup is neither genotoxic or mutagenic when reacting with DNA. Mink et al.(2011)arguesthatthereisnoconsistentpattern between exposure and any disease; most reported associations are “weak and not significantly different from 1.0”. The US EPAitselfconcludedthatthereisnoharmtowardsinfants,children, or adults from exposure to glyphosate residues (US EPA 2007). The WorldHealthOrganization (WHO) and the Food and Agriculture Organization of the UN (FAO) did not observe any evidence of neurotoxicity (WHO/FAO 2004).Minket.al(2011)statesthatMinkhasbeenapaid consultantwithMonsantoandthattheirresearchwasfinanciallysupportedbyMonsanto.

Bernal, Solomon, and Carrasquilla (2009), Mink et al. (2011),andWilliamset.al(2000) were all published in Regulatory Toxicology and Pharmacology, a peer-reviewed journal associatedwiththeNationalInstitutesofHealth.Criticsclaimthatthisjournalisindustry-backed and used to stallregulatoryefforts(Zou2016).TheCenterforPublicIntegrityfoundthatarticles

published in the journal are often written by scientists from consulting firms and that board members include private consultants (2016). This journal has been involved in numerous exposesregardingitstiestothetobaccoindustryaswell.TheUSisalsothelargestcontributorto the funding of WHO and the UN. This is not to discredit the scientific validity of thesereports, butrathertoshedtransparencyonpotentialconflictsofinterest.

Conclusion

There are many negative spillovers of the aerial spraying program that have not been mentioned inthispaperorhavenotbeenexploredin-depthhere.Theseincludethebreakdownof indigenous sovereignty and land laws, education and human capital, increased distrust in institutions, rise in carceral law enforcement, democratic erosion, and more. Prominent abolitionist organization Alliance for Global Justice (2018) notes the spread of the US prison modelintoSouthAmericannationsundertheWaronDrugsera.TheWaronDrugsisalsolinked to militarized police arms and capacity, border militarization, introduction of longer sentencing and solitary confinement, increased poverty, neoliberal policies, and the establishment of more military bases. The exportation of this carceral structure is coined “prison imperialism” (“What Is Prison Imperialism” 2018). Plan Colombia has formalized a structure of enhanced militarization, surveillance, and an institutional relationship with the US in which these anti-narcoticsmodelscanbeusedabroad.

This paper also highlights the limitations of scientific and economic research in the pursuit of wellbeing. Decades of damage and irreversible harm has been done to various individuals, households, and communities under Plan Colombia. One can only hope that in the future,institutionswillfollowtheguidanceofanti-drugeconomicpolicyresearch.

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CBAMANDITSDISCONTENTS

Yuexin(Rachel)Fei

To meet its commitment to carbon neutrality by 2050, the EU has proposed a Carbon Border Adjustment Mechanism (CBAM). While the US is considering implementing its own CBAM following the EU, other countries have raised various degrees of opposition, especially from Brazil, China, India, and South Africa (Berahab 2022). To understand CBAM, it is a mechanism that uniquely includes externality costs ofenvironmentalharms(Barrettetal.2021). While currently it only covers 5 sectors (i.e., iron, steel, cement, fertilizers, aluminum and electricity) and calculates emission emitted in production processes and input goods, its applied scope might expand in the future if needed. In practice, it contains a pilot program of gradual phases for adaptation and avoids double-counting if other price-adjusting mechanisms are alreadyinplaceforpricedifferences.

Note that CBAM coexists with other alleged global efforts and treaties such as theParis Agreement and doesn’t serve as a substitute for any There are two clarifications of this essay First, some have criticized CBAM for concerns of its design details such as the logistics of carbon emission processes (Hart and Koester 2021). However, because there is much flexibility to adjust based on feedback in the pilot program andgenerally,thisessayassumesimprovement in such logistics overtime with constant adjustment to the extent that they are generallymature, accurate, and practical for predictability and transparency Second, for a holistic evaluation,this essay analyzes CBAM’s global influence onbothdevelopedanddevelopingcountries.Although CBAM is theoretically a justified aspirational model advancing environmentalism in a non-discriminatory manner under WTO’s guidelines, in practice it disproportionately harms developing countries which furthers global inequalities and tensions and is harmful for global cooperation on climate change. Moving forward, developed countries using CBAM with more capabilities should be more responsible in financial assistance to developing countries while holdingthemselvesaccountablefordomesticchanges.

CBAM is legally justified and compatible with WTO’s non-discriminatory principle. Principally, CBAM is consistent with the polluters pay principle where corporations pay for environmental harms. Legally, the EU can justify its measuresundertheexceptionconditionsin Article XX, as measures “necessary for the protection of human, animal or plant life or health” (b) and measures “necessary for the conservation of exhaustible nature resources” (g)1 This is especially applicable given the necessity and urgency of environmental protection: When humankind is ever closer to the tipping point of climate change with no existing enforceable treatment, CBAM is a crucial measure to prevent the existential risk. Although some have criticized that CBAM violates WTO’s fairness principle, it is legally compatible with the ruleif carbon prices are paid by all EU and non-EU products using the same calculation method (De Catelle et al. 2021). In other words, CBAM is fair as long as it applies the same standard to all domesticandimportedproducts.

When applying the same fairness principle, however, the “Buy American” preference is inconsistent with the fair environment-based standard of CBAM2: In the context of CBAM, the

1

Fororiginaltexts,see“ArticleXXGeneralExceptions-WorldTradeOrganization,”WorldTradeOrganization, accessedNovember24,2022,https://wwwwtoorg/english/res e/booksp e/gatt ai e/art20 epdf

2

Forareviewofthe“BuyAmerican”preference,see“BidenAdministrationAmends‘BuyAmerican’Rulesto IncreaseDomesticContentRequirements,”McGuireWoods,March10,2022, https://wwwmcguirewoodscom/client-resources/Alerts/2022/3/biden-administration-amends-buy-american-rules

US can only promoteits“BuyAmerican”preferencewhenUSproductsarecleanerthanallother products from all other parts of the world. When buying steel for public projects, for instance, the US can justify “Buy American” with referencetoIndiansteelsbecauseUSsteelsarecleaner than Indian steels. However, it can’t justify this with reference to German steels which have lower CO2 intensity in production (Hasanbeigi 2020). Insofar as the US doesn’t have the cleanest products in the world, CBAM is incompatible with an absolute “Buy American” preference which is discriminatory and uniquely benefits US national self-interest without fairness.

Environmentally, CBAM is uniquely effective by decreasing products from dirtier production. In essence, CBAM is designed to capture “carbon leakages”: First, by charging externality costs, CBAM deters EU-based companies from moving their carbon-intensive production to other regions with lowerenvironmentalstandardsandpreventsaglobalracetothe bottom; Second, it also increases thecomparativeadvantageofproductswithcleanerproduction by pressuring other ‘dirtier’ products with the same environmentally aware pricing standard. In the longrun,theprivatesectoralsohasmoreofanincentivetoinvestmoreininnovativegreener production, thus increasing the possibility of disruptive green technologies to transform production. On a less tangible but equally important note, CBAM can serve as a meaningful precedent for other countries tofollowandsignalsconsensusbuildingonclimatechange.Thisis beneficial for all of humankind, especially for developing countries who are already the most vulnerable victims of climate change (Georgieva et al. 2022). Currently, they lack resources to combat dwindling water resources or to cool their homes under extreme heat. lack resources to recover from natural disasters; and lack capacities to combat desertification but are forced to further exploit the environment for unsustainable, short-run profits in a vicious cycle. They are the ones who have no alternative and will benefit much more from any decrease in carbon emission by a giant multinational corporation (MNC) who goes greener to decrease costs under CBAM.

Economically,CBAMbenefitsdevelopedcountrieswithcleanerproductionbyincreasing their comparative advantage in trade. Empirically, developed countries have greener production technologies in general (Avenyo and Tregenna 2022). With more money to continuously invest in more productive and greener technologies, developed countries have cleaner products which will becomecomparativelycheaperunderCBAMafterincludingexternalitycosts.Further,when MNCs no longer find it profitable to move around their bases for the nextpollutionhaven,they might move their production base back to their mother countries for convenience, thereby increasingemploymentindevelopedcountries.

Theoretically, CBAM might also economically benefit developing countries for two reasons. First, under the previous global race to the bottom, developing countries have gained little economic growthinthefirstplacewhilemostprofitsflowtothecompanies.UnderCBAM, without exploitation by profit-driven companies, they can now avoid the environmentally harmful poverty trap and instability after MNCs leave for the next pollution haven. Second, developing countries might also benefit from a potential environmental leapfrogging. With adequate investment and modern technologies, developing countries can bypass the dirty stages of economic growth and jump to more effective production with less pollution(Yayboke2020). When CBAM increases demand for products made from greener production, the worst-off in developing countries without any infrastructure in place now have a unique advantage of no opportunity cost. This differs fromthe USandRussiawhoalreadyhavematureinfrastructurein place and political lobbying tied to these industries. Contrary to the above win-win hypothesis,

developing countries havebeenandarestill unable toachievetheoreticaleconomicdevelopment becausetheylackthecrucialprerequisite:money

Some advocates in developed countries might happily rush to defend that developed countries have already agreed to provide money to developing countries tocompensatefortheir disproportionate losses from climate change and to help them gradually go green or to achieve environmental leapfrogging. Yet, this is a rather credulous caveat that rarely plays out. Like every policy, CBAM doesn’t exist in the beautiful void ofenvironmentaleconomictheories,but in thedynamicglobalcontextofcountieseachprioritizingtheirnationalself-interest.Despitethe promising theoretical agreements, the reality seems to overwhelmingly suggest the opposite picture of irresponsible developed countries unable to fulfill their obligations (Sommer 2021). Developed countries have historically fallen short of their alleged commitments. For example, instead of the promised $100 billion-a-year pledge to developing countries for climate goals, developed countries only granted $83.3 billion in 2020 (Kabukuru 2022). Moreover,theUShas only paid one-third of its share in the green climate fund (Green Climate Fund). But, even if developed countries eventuallyfulfilltheircommitments,althoughunlikely,thenegotiatedfunds are always insufficient for actual breakthrough progress, either for damage restoration or for economic leapfrogging (Jeworrek 2021). Because of insufficientfunds,developingcountriesare constantly running on unsustainable aid that is impractical for them to solve any structural problems and leaves them more vulnerable in the long run.Giventhehistoricaltrajectory,even as COP27 has now successfully produced a climate fund breakthrough, its concrete plan and progress remains uncertain and deserves some caution. Therefore, while it is certainly easy and tempting to defend CBAM with a reassuring solution that developed countries will financially aid developing countries, waiting for it seems more like waiting for Godot. Without sufficient funding and technology support, developing countries barely have adequate capabilities to transform into greener production, but will only have less competitiveness in the international market. Based on the current trajectory, their comparative after CBAM is not an ideal green transformation of their production, but rather more economic hardship with no alternative to transition.

In summary, although there’s a potential win-win situation where developing countries don’t have to face the trade-off between environmental protection and economic development with the help of developed countries, this is hardly ever the case before or now Therefore, the realistic case for developing countries is that they still have an incentive to further economic development and, unfortunately, still face the inevitable trade-off. To shift from the ideal theoretical scenario to the realistic realm then, CBAM will be ineffective and even counterproductive regarding its socio-economic impacts on developing countries. First, CBAM might be ineffective when developing countries can designate specific corporations to meet sectoral CBAM standards. For instance, China can specify a few companies to specialize in trading with the EU using the greenest technologies available while the remaining sell their products in the domestic market. This limits CBAM’s global impact because the decrease in emission from the trading products might have relatively little impact in total. Further, since countries have incentives to compensate for the increasing costs in their EU-certified products, they might increase emission for domestic products that offsets the marginal decrease in emission. Second, when CBAM increases environmental costs without complementary policies, developing countries might cut costs in other areas such as lowering local labor standards. Although they must abide by international labor standards, countrieswillstillhaveaglobalrace to the bottom for worker rights. As these workers are likely already the worst-off indeveloping

countries, this is especially harmful because it only increases the most vulnerable stakeholders’ burdens.

As opposed to sectoral trade diversion, another alternative may be that green economies will only trade with other similargreeneconomies,anddirtyeconomieswillsimilarlyonlytrade with other dirty economies. For instance, many developing countries such as Brazil and India might choose not to trade with the EU, but only trade with each other. Although this is highly unlikely, it is still feasible because the cost of transforming the entire energy and industrial infrastructure might be prohibitively expensive to meet the standards of CBAM in the longrun. When the increased costs of trading with the EU outweighs the foregone potential benefit, developing countries might still be willing to lose the EU as their trading partner from a cost-benefit perspective. When carbon clubs are formed, CBAM still actively brings harm because when dirty economies completely break ties with green economies, they face less accountability and supervision to regulate their environmental harms. Inthelongrun,thismight also lead to a reduction in global environmental standards as a vicious cycle. In either case, peopleindevelopingcountriesarealwaysthemostvulnerableandsufferthemosteventually. Mostimportantly,CBAMwillgarnersignificantbacklash fromdevelopingcountriesthat deter crucial global cooperation. Surely, it is uncertain whether the actual intent of the EU is a genuine concern for the environment or to increase its competitiveness.Butregardlessofintent, when the EU now links climate change with trade without providing sufficient material help, CBAM fits into and strengthens the perception held by many developing countries that climate change is a politicized excuse to maintain economic hegemony and exploitation, rather than helping the environment itself. In the current timeframe, tradeisalreadyincreasinglypoliticized as seen in the US-China trade war. In response to CBAM, developing countries will likely interpret concerns for carbon emission as an excuse for developed countries to increase their products’ competitiveness and further discourage the economic development of developing countries. When developing countries become even moreskepticalandreluctanttocooperateon climate change, the backlash from such a perception alone outweighs any potential marginal environmental improvement under CBAM. This is detrimental to efforts mitigating climate change because as a global issue, this requires global cooperation. Politically, global division might lead to further ripple effects where developing countries become more reluctant to cooperate in other importantissuesbesidesclimatechange,discouragingfuturecooperationwith ageneraldislikeanddistinctionof‘theWest’or‘westernstandards’ingeneral.

Based on the existing power dynamics and sector specific CBAM logistics, developed countries are uniquely the winners of CBAM. On the other hand, the ‘losers’ are developing countries who currently have dirtier production not because they are maliciously ignorant of climate change, but because they simply lack the capabilities to gogreenwhentheircitizensare struggling with survival.Toputsuchstrugglesintowords,weliveinaworldwhere“955million citizens of the affluent countries own 81% of global wealth in the face of three times as many people mired in severe poverty” (Pogge 2005). Despite an overall improvement in economic growth, global inequalities have only increased over the course of development (World Bank Group 2021). When 8% of the global population in low-income countries own below 1% of global wealth, it seems extremely credulous, if not inhumane, to demand environmental actions from them at the cost of losing the little economic advantage they have through, unfortunately unsustainable,but necessary exploitation. When we are already highly alert of the harms of any regress in economic development in the US, bear in mind that such harmswillbeexponentially worseindevelopingcountrieswithlesssocialsafetynetsinplace.

If we were to stay consistent with a human-oriented, Rawlsian principle instead of a utilitarian one, one’s citizenship determinedbythelotteryofbirthbehindtheveilofignoranceis also a morally arbitrary factor that ought not to determine the opportunities one qualifies for (Lamont and Favor 2017). Yet in the status quo, people in developing countries disproportionately suffer more because of where they are born. It is therefore not morally justified for the global South to bear even more burden under CBAM for an issue concerning everyone when they already suffer the most. Even if we assume perfect efficiency,itistruethat CBAM isnecessarybecause,onthecomparative,therewouldbenoprogressandclimatechange would simply stagnate as a global collective action problem. It is also true thatthisisnecessary because climate change constitutes an existential risk with infinite magnitude. But when we consider the fact that it comes at the cost of additional burden on developing countries, it is unclear whether the environmental advancement that has a larger magnitude outweighs the severe hardship of people in developing countries. To put it bleakly, it is inequitable and impossible to weigh between people dying from climate change in the long run ifCBAMisnot introduced and our world pass the no return of 2°C; and people mostly only in developing countries dying from poverty for morally arbitrary reasons in the short run if CBAM is introducedinitscurrentversion.

In conclusion, what are the implications? While this essay supports CBAM overall for environmental necessity, this is conditional upon more actions from developed countries.Atthe bottom line, developed countries must change their focus: instead of pressuring developing countries, developed countries mustprioritizemitigatingdomesticcarbonemissiontoshowtheir shared efforts. If we believe that a life in a developing country is worth the same as one in a developed country, developed countries with much more capabilities should hold themselves accountable and focus on pushing for domestic structural transformations—especially when developed countries account for 6/20 countries with the highest carbon emissions per capita. Another potential way to increase financial support for developing countries might be to distribute the collected externality costs under CBAM back to developing countries for green technology investments orforclimatedamagefunds.Eitherway,developedcountriesmustshow strongercommitmentstoequitableandsustainableeffortstomitigateclimatechange.

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MONTREALPROTOCOL:ATREATYANALYSIS

byPaigeMarieVillarrealDean

TheMontrealProtocolonSubstancesthatDepletetheOzoneLayerof1987addressesthe accumulation of man-made chemicals called ozone-depleting substances (ODS) that deplete the ozone layer in the atmosphere, which has caused the ozone layer to thin in some places (Handbook 2020, Preamble). The Montreal Protocol was developed out of the 1985 Vienna Convention for the ProtectionoftheOzoneLayer Asaframeworkconventiontreaty,theVienna Convention outlines the general principles of the need for international action on ozone depletion, scientific research and data reporting processes for better understandingtheeffectsof ODS on the atmosphere, and negotiation for a more substantive protocol began almost immediately. The Vienna Convention was replaced by the Montreal Protocol, which outlines specific obligations and mechanisms forlimitinghumanactivitycausingharmtotheozonelayer (“The Vienna Convention” n.d.). The Montreal Protocol and the Vienna Convention remain the maininternationalagreementsregulatingandprotectingtheozonelayer

The Montreal Protocol has proven extremely effective at reducing ozone emissions through altering state behavior by itsrobustgovernancestructureandassistancemechanisms,its managerial compliance structure, and ability to adapt to become an extremely successful hallmarktreatyofinternationalenvironmentallaw.

TheProblemandtheMontrealProtocol’sApproachandProgress

Ozone depletion is the resultofcertainchemicalcompoundsproducedbyhumanactivity that destroy ozone molecules when they come into contact with ultraviolet light in the stratosphere.Suchcompoundsarecreatedthroughindustrialpracticesandwerecommonlyfound in “refrigerants, aerosols, fire extinguishers,airconditioning,solvents,plastics,pharmaceuticals, coolants, military equipment, electronics, car manufacturing, and agriculture” (Benedick 1991, 1). Ozone depletion has been theorized since 1974 and observed since the early 1980s and has adverse effects on the environment and human health. Estimates show that if the problem had been left unchecked, the planet would have been uninhabitable by mid-century. This environmental problem is a transboundary issue since ODS spread around the world, and countriesresponsibleformuchoftheirspreadwerenotnecessarilyfeelingtheireffects.

The Montreal Protocol established a phase-downapproachtoregulateandultimatelyban the production and consumption ofODSamongallparties,whichhasallowedtheozonelayerto eventually return to pre-1980s levels once the concentrations of ODS in the stratosphere have declined.Itwilltakeseveraldecadestofullyachievethis.

To accomplish this, the Montreal Protocol requires that all member states adhere to a phased-down schedule of the production and consumption of the list of controlled substances (chlorofluorocarbons (CFCs), halons, carbon tetrachloride, hydrochlorofluorocarbons (HCFCs), methyl bromide), collectively known as ozone-depleting substances (ODS) (Handbook 2020, Section 1.1, Article 2). This phase-down approach is specified for each major group of ODS outlined in Annexes A-F, freezes the production and consumption of ODS at 1986 levels, and then moves down periodicallyalongaspecifictimelineuntilzeroproductionandconsumptionis achieved. The parties are also required to ban their import and export of controlled substances with non-party states, consider the feasibility of restricting or banning other products produced withbutnotcontainingthesecontrolledsubstances,agreenottoprovidesupporttoanynon-party

to produce these substancesand establish licensing processes for the import andexportof“new, used, recycled and reclaimed controlled substances” in Annexes A-E (Sec. 1.1, Art. 4) The protocol also recognizes the unique position of developing countries by using a “common but differentiated responsibility approach”, outlining that any developing country whose production of ODS is under 0.3 kg/per capita may be entitled to a 10-year delay in the control measures (Sec. 1.1, Art. 5). Furthermore, every 4 years after 1990, each party must convene a group of experts to assess each country’s control measures and report their findings to the Ozone Secretariat and all parties (Sec. 1.1, Art. 6). After becoming a party, each country has to report production and consumption data on ODS to the Secretariat within 3 months and do this every year afterward (Sec. 1.1, Art. 7).Additionally, parties must cooperate on promoting research on the best possible alternative technologiesandwaystodisposeofcontrolledsubstancesaswellas efforts to promote public awareness of ozone depletion and scientific efforts (Sec. 1.1, Art. 9) The parties are also obligated to create a Multilateral Fund to help finance the compliance of developing parties with the control measures (Sec. 1.1, Art. 10) Parties mustalsodevoteefforts to finding the best possible and environmentally safe substitutes and technologies and sharing them with developing parties (Sec. 1.1, Art. 10A).Countries must hold regular meetingsandset up an overseeing Ozone Secretariat that will perform specific supporting duties (Sec. 1.1, Arts. 11,12).

HowtheMontrealProtocolWorks

All 198 UN member states have ratified the treaty and the Vienna Convention, making them the first treaties with universal ratification, and130stateshaveratifiedalltheamendments uptothemostrecentamendment.

The protocol aligns with a managerial model of compliance, meaning that it relies on targeted assistance and flexible obligations instead of strict incentives or punishments to push states to comply with their treaty commitments. This managerial model is reflected in both its substantiveandproceduralobligationsforparties.

How does the treaty try to guarantee that states will comply with their obligations? The compliance mechanism of the treaty in Article 8 was left intentionally vague and meant to be hammered out at the first meeting of the parties in Helsinki. Itwaseventuallycompletedduring the 10th meeting of the Parties in Cairo in 1998.It includes an Implementation Committeewith balanced North-South state membership that oversees situations of non-compliance. It also established a list of the possible measures that could be taken in situations of non-compliance that include “a) Appropriate assistance, including assistance for the collection and reporting of data, technical assistance, technology transfer and financial assistance, information transfer and training; b) Issuing cautions; c) Suspension, in accordance with the applicable rules of international law concerning the suspension of the operation of a treaty, of specific rights and privileges under the Protocol, whether or not subject to time limits, including those concerned with industrial rationalization, production, consumption, trade, transfer of technology, financial mechanism and institutional arrangements” (Handbook 2020, Sec. 3.5, pursuant to Article 8, 798).These measures firmly alignwiththemanagerialmodelofcompliance,andaredesignedto encourage state compliance with treaty objectives while taking into consideration state-specific circumstances.Thistypeofcompliancemechanismplayedalargeroleinenablingmanystatesto join even if they foresaw difficulty in meeting obligations, and helped the treaty make steady progress towards complete phaseout of ozone depleting substances, even in situations of temporarysetbacksorstatenon-compliance.

Anotherfactorthatallowedtheprotocoltoworkaswellasitdidwastheestablishmentof the Multilateral Fund to assist developing countries in meeting treaty obligations. Despite the 10-year delay period outlined in Article 5, developing countries argued that further assistance was needed for them to be able to phase out CFCs (“Article 5: Special situation” n.d.). Developing countries displayed differing attitudes about the treaty obligations- some, like Mexico, moved quickly to make changes, while others viewed the obligations as inequitable to developing countries (Benedick 1991, 100).Given that developing countries, particularly China and India, had thepotentialtocausefuturedamagetotheozonelayerwiththeiruseofCFCsand represented 75% of the world’s population, it was critical that they be convinced to join the treaty. Because developing countries saw the ozone problem as one “not of theirmaking”,they were worried that a rapid phaseout wouldputanunduestrainontheirgrowingeconomies(149). With replacement chemicals and products becoming more expensive, CFCs becoming too expensive to import, problems of access to alternatives, new operating costs, and no guarantees that costs would end up falling, these countries argued that theyrequiredtechnicalandfinancial assistance to be able to meet the obligations of the treaty. The creation of a fundingmechanism and transfer of technology was “the most difficult issue in the entire treaty revision process” (152). While there was broad agreement on the desired outcome, this was also a complex issue and set precedents for relations between developed and developing countries. The open-ended working group started working on this before the 1990 meetings in London to outline the basic concepts at hand, raised issues of which institution would oversee these donationsandconcerns about intellectual property rights and patents, how much money would actually be needed, and whether contributions should be obligatory or voluntary. An agreement was finally reached that funding assistance would be in the form of concessional loans and grants according to the principle of additionality, and in London Article 10 was revised, which struck a careful compromise between “obligatory” and “voluntary” contributions, with its detailed scale of contributions for industrialized nations (187).The Multilateral Fund would be managedthrough UNEP, the UN Development Program, the UN Industrial Development Organization, and the World Bank, and also established a North-South balanced executive committee for the fund so that each group had blocking power (Brack, 1996, 18). Article 5’s amended text states that “...implementation by those same Parties will depend upon the effective implementation of the financial co-operation as provided by Article 10 and the transfer of technology as provided by Article10A”(Handbook 2020,Article5,paragraph5,20)Developingcountrieshadthepotential to lose out asaresultofthistreaty-itispossiblethatthecostsofimportingalternativechemicals and reorienting to alternatives would have overshadowed the environmental benefits these countries would have gained. But as a result of the negotiations around Article 5andArticle10 and the creation of the Multilateral Fund, industrialized nations wereabletoprovidedeveloping countries with enough financial and technical support that they were able to join the treaty and phase down their CFC production and consumption. The Multilateral Fund created, in essence, an “international compensatory mechanism designed to transfer resources to the ‘losers’” that allowed more states to takepartinreducingtheimpactsofODS,whichwasamajorfactorinthe success of the treaty(Brack1996,87).Thisfinancialandtechnicalassistanceisamajorexample ofamanagerialmodelandwasarguablythelynchpininthesuccessofthetreaty.

One of the treaty’s most influential mechanisms was the way in which it regulated the production, consumption, and trade of ozone depleting substances. In particular, by prohibiting trade of ODS, products containingODS,andproductsmadewithODSwithnon-partystates,the treaty sought to limit the amount of ODS on the market and introduce incentives to maximize

participation in the treaty. Additionally, states are required to submit annual reports on their production and consumption data to the Secretariat (Handbook 2020, Sec. 1.1, Art. 7). This mechanism was also intended to prevent industry from moving to non-party states to continue theirproductionandconsumptionofODSandescaperegulation,creating“ozonehavens”,which could have severely undermined the overall reduction goals of the treatyandreducedincentives to develop alternatives (Brack 1996, 52). While the restrictions on trade proved to be highly contentious during the negotiating process, in the end they “constituted in effect the only enforcementmechanismintheProtocol”(Benedick1991,91).

States have changed their behavior significantly since the negotiation of the Montreal Protocol on Substances that Deplete the Ozone Layer in 1987, especially developing countries and countries with strong emissions-contributing industries. Consumption and production of ozone-depleting substances, including CFCs, halons, and bromides, have fallen dramatically, with some categories already reaching complete phaseout. Countries have created domestic regulations and organizations for implementing the phaseout of controlled substances and developed countries have contributed money to help assist developing countries meet their obligations.

Industries that previously relied on controlled substances have successfully shifted to alternative chemicals, after phasing out products containing ODS (consumer appliances, fire extinguishers, aerosol products, etc). Alternatives,likeHCFCs,wereusedasastop-gapandthen alsophased-outwhenitwasdiscoveredthattheycontributedtoclimatechange.

Figure1showstheamountofODSemissionsintonssince1986to2020divided bysubstance.ThesharpandmostlycontinuousdecreaseinODSemissionsfor everychemicalsince1990isvisible.(RitchieandRoser2018)

Figure2showstheamountofODSemissionsintonsfrom1961to2014.The amountofemissionspeakedin1999andhasdecreasedsharplysince.Current levelsarebelow1961levels.(RitchieandRoser2018)

It is apparent that the dramatic drop in ODS emissions is directly influenced by the Montreal Protocol. Certain countries had begun the process of limiting their consumption and production of ODS before the protocol, like the U.S.’s Clean Air Act. Without the treaty, it is likely that some countries, like the U.S. and Nordic states, would have engaged in domestic actions to reduce their emissions, but it is unlikely that the emissions reductions and trade restrictions that proved effective at addressing the environmental problem would have been implemented to the degree that they were without the treaty. Developing countries would also have acted differently without the protocol- many would not havehadthecapacityorincentives to reduce emissions, and some,likeChinaandIndia,werepoisedtobecomemajorconsumersof ODS. Without their inclusionintosomesortofinternationalregulatoryregime,theactionsofthe U.S. and other countries would not have been enough to make a significant change without the contributions and efforts of developing countries. The funding mechanism of the protocol allowed them to be included and have the capacity to change their behavior,whichmadeglobal collective action on thisissuepossible.Thus,theglobalreductionandinsomecases,elimination ofODSisdirectlyattributabletothesuccessoftheMontrealProtocol.

HowtheMontrealProtocolHasAdapted

So far, the Montreal Protocol has been amended five times since entering into force in 1989: in London in 1990, Copenhagen in1992,Montrealin1997,Beijingin1999,andinKigali in 2016. The major changes made at London were adjustments strengthening existing measures for the control of substances covered by the original Protocol, control measures for ozone-depleting substances not originally regulated, and provisions for further investigation of specific scientific, technical, and legal matters. Significant changes made during these

negotiations are the establishment of the Multilateral Fund to assist developing countries in meeting treaty obligations and accelerating the phaseout of ODS and incorporated a hydrochlorofluorocarbons (HCFC) phaseout for developed countries, further phaseouts for methyl bromide, and complete phaseouts for otherODSwereplanned(USEPA2015).InKigali in2016,majorexpansionsofthetreatywereproposed.Thesechangesextendedcontrolstophase out the production and consumption of hydrofluorocarbons (HFCs) because these substances were widely adopted by industries as a way tomoveawayfromozone-depletingsubstances,but they are also potent greenhouse gassesthataredamagingtotheearth’sclimate.Thisamendment demonstrates the protocol’s commitment to adaptability in the face of new scientific evidence, andisatestamenttoitsflexiblegovernancestructureasitbroadenstheprotocol’smandate.

ImpactsoftheMontrealProtocolontheEnvironment

Global ozone depletion has been reacting favorably since the time when the Montreal Protocol was negotiated. According to current estimates,globalozoneconcentrationswillreturn to 1980 levels by midcentury (2042-2051) and the ozone hole will reduce back to pre-1980 levels by 2070 (Braesicke and Neu 2018, 263).Since ozone depleting substances degrade very slowly and, in turn, are present in the atmosphere for extended periods, it will be a long time beforewecanexpecttoseecompleterestorationoftheozonelayer. Globally, “ozone protection efforts have [averted] an estimated net amount of morethan 135 billion tonnes of carbon dioxide equivalent emissions going into the atmosphere from1990 to 2010, rendering it one of the most effective tools to date in climate change mitigation” (Birmpili 2018). The impact of the Montreal Protocol has been aboutfivetimesgreaterthanthe emissions reduction targets for the Kyoto Protocol during the period they’ve both been active. Additionally, global investment in green alternatives has increased and pushed the development of greener practices, chemicals, and technologies. The Multilateral Fund has transferred around $3.8 billion to help developing countries meet their obligations and transition to greener alternatives. Long-term estimates also show that the quantifiable benefits from the protocol are enormous, with around $460 billion in avoided damagestoagricultureandlivestockproduction, $1.8trillioninglobalhealthbenefits,andoveronebillionjustforskincancer(Birmpili2018).

The Montreal Protocol has caused global emissions of ozone-depleting substances to decrease by 99% since 1986.Current estimates arethat200millionskincancercasesworldwide will have been avoided asaresultoftheMontrealProtocol,whichhasalsohadsomebenefitson greenhouse gas emissions (Ritchie and Roser 2018). The Montreal Protocol has also benefited the ecosystem by protecting landfromozone-specificharm.Further,withoutthetreaty,theozone holeaboveAntarcticaisestimatedtohavegrown40%larger(Birmpili2018).

WhytheMontrealProtocolhasbeensoEffective

Numerous factors have contributed to the effectiveness of the Montreal Protocol as an environmental treaty First and foremost, the treaty boasts the universal membership of all 198 United Nations countries, which has led to the united momentum needed to overcome a global collective action problem of this magnitude. This collectiveactionproblemalsohadalong-time horizon, which the treaty dealt with by having the patience and commitment to set realistic and tangible stepwise goals both for the treaty obligations and negotiations process. The protocol’s robust yet flexible governance structure has allowed for this ongoing commitment since its inceptionandintothefuture.

Theprotocol’sdedicationtothemanagerialmodelofcompliancewasamajorfactorinits

effectiveness. As discussed before, thecomplianceandfundingmechanismsmadeitpossiblefor all states to join and commit to reducingtheirODSemissions.Inparticular,thetreatywouldnot have been as successful without the Multilateral Fund. It would not have been possible to achieve the same successes or even make much headway without the addition of developing countries, who were only able to join because of the creation of the funding and technical assistance mechanisms. In this sense, the protocolintroducedamajorinnovationininternational law that has impacted subsequent treaty efforts by making it possible for countries to meet reductiontimelines.

Another contributing factor was the critical role science played in negotiations and in realizing the scale of the problem as well as subsequent mitigation efforts. . The negotiations adhered to the principle of precaution, meaning that while science has not 100% verified and measured the causes and impacts of ODS on the stratosphere, the scope oftheproblemandrisk at hand was deemed too important to wait to take action until then. At the beginning of international action on the problem of ozone depletion, thepredictionsandnascentobservations emerging from the scientific community drove efforts to create the Vienna Convention. As the science on ozone solidified, it enabled moreinternationalconsensusandmomentumonbuilding regulation around thisissuethatultimatelyculminatedintheMontrealProtocol.Asaframework convention protocol modeltreaty,thedesignofthetreatyallowsfornewscientificdiscoveriesto influence the various amendments and reduction timelines accordingly, which has strengthened the treaty and its ability to tackle the environmental problem more effectively. This provides a good example of what a convention framework protocol model can do even in the face of scientific uncertainty, which makes the protocol that much more remarkable among the other environmentaltreatiesininternationallaw.

the 100 DU ozone hole level and below in the 1990s but appear to be slowly recoveringintheyearssince2000.(RitchieandRoser2018)

g y Protocol, with the protocol, and with all of the associated amendments to the protocol (Ritchie and Roser 2018) The difference between the latest version of theprotocolandnoprotocolisstaggering

The inclusion and engagement of all stakeholders— governments and industry— tofind actionable alternatives and solutionswascritical.SinceCFCswereconsideredaverystable,safe chemical, there was initially a lot of industry pushback against the possible regulation of their use, especiallysincetheyweresowidelyused.SubstitutesforCFCsandotherODSweren’teasy and available at the beginning ofinternationalactiononthisproblem.Thealternativesbackthen were toxic or flammable, so finding safe alternatives in the event of regulation was a major concernforindustryleaders.Severalcompanies,includingDuPont,wereresearchingalternatives like hydrofluorocarbons, but this research and developmentreallytookofflaterasaresultofthe treaty. Initially, both American and European industry leaders were resolutely against any form of regulation and vigorously denied that the ozone problem and CFCs were linked (Benedick 1991, 12). Eventually, American industry was more concerned with potential costs to their reputation if the ozone problembecameserious,desireduniformfederalregulations,andalready had developed a number of CFC alternatives (31). After 1986, American industry became committed to promote scientific research on the topic and came around to support international regulation, eveninterveninginfavortothetreatyafewtimes,mostlyinanefforttohavea“level playing field” with the European competitors, since European industries had faced lower levels of regulation thantheirAmericancounterparts.Lateron,informedconsumerscreatedpressureto decrease the market for CFCs and the treaty created conditions for clearly defined phase-out scheduleswhichhelpedindustryreorientawayfromCFCs(202). Specifically, the United States was a big driver of international efforts to regulate ODS emissions. The U.S. had already establisheddomesticregulationonthisissuewiththeCleanAir

Act of 1963. This domestic action undertaken by the largest emitter of ODS signaled to the international community that ODS regulation and solving the ozone hole problem was now possible and drove momentum for international action and made the U.S. a major leader of the subsequent treaty negotiations. This domestic regulation also impacted the U.S. industry, who now were in favor of internationalregulationsotheirforeigncompetitorsweresubjecttosimilar regulations to lessen any possible competition.Thepossibilityforuniversalstateparticipationin the treaty was a large facet of the industry’s eventual support because it meant that all states wouldeventuallyhavetousealternatives,creatingamajormarketwaitingtobedeveloped. Specifically, the United States was a big driver of international efforts to regulate ODS emissions. The US had already established domestic regulation on this issue with the CleanAir Act of 1963. This domestic action undertaken by the largest emitter of ODS signaled to the international community that ODS regulation and solving the ozone hole problem was now possible and drove momentum for international action and made the US a major leader of the subsequenttreatynegotiations.ThisdomesticregulationalsoimpactedtheUSindustry,whonow were in favor of international regulation so their foreign competitors were subject to similar regulations to lessen any possible competition.Thepossibilityforuniversalstateparticipationin the treaty was a large facet of the industry’s eventual support because it meant that all states wouldeventuallyhavetousealternatives,creatingamajormarketwaitingtobedeveloped.

The Montreal Protocol in its 33 years of existence has successfully conquered the potentially devastating environmental problem of ozonedepletion,increasedglobalcooperation, and contributed significantly to the innovation of international environmental law It is undoubtedly effective because of the role of science in the negotiations, the financial and technical assistance as well asdifferentiatedresponsibilitiesthatalloweddevelopingcountriesto join in the treaty efforts, the role of the US and industry, and its flexible yet robust design. The global community is lucky that the efforts of the scientists, lawyers, policymakers, diplomats, and industry leaders culminated in a strong, impactful treaty that has drastically improved the environment.

Bibliography

Benedick,RichardElliot.1991. Ozone Diplomacy: New Directions in Safeguarding the Planet. HarvardUniversityPress.

Birmpili,Tina.2018.“MontrealProtocolat30:TheGovernanceStructure,theEvolution,and theKigaliAmendment.” Comptes Rendus Geoscience,30thAnniversaryoftheMontreal Protocol:FromthesafeguardoftheozonelayertotheprotectionoftheEarthClimate, 350(7):425–31.https://doi.org/10.1016/j.crte.2018.09.002.

Brack,Duncan.1996. International Trade and the Montreal Protocol TradeandEnvironment Series.RoyalInstituteofInternationalAffairs,EnergyandEnvironmentalProgramme, InternationalEconomicsProgramme.

Braesicke,Peter,andJessicaNeu.2018.“Chapter3:UpdateonGlobalOzone:Past,Present,and Future.”GlobalOzoneResearchandMonitoringProject—ReportNo.58.Geneva, Switzerland:WorldMeteorologicalOrganization. https://csl.noaa.gov/assessments/ozone/2018/.

“NASAOzoneWatch:LatestStatusofOzone.”2022.NASAGoddardSpaceFlightCenter https://ozonewatch.gsfc.nasa.gov/.

OzoneSecretariat.2020. Handbook for the Montreal Protocol on Substances That Deplete the Ozone Layer. Fourteenthedition(2020).UnitedNationsEnvironmentProgramme. ———.n.d.“Article5:SpecialSituationofDevelopingCountries.”UNEnvironment Programme.AccessedMarch14,2022a.

https://ozone.unep.org/treaties/montreal-protocol/articles/article-5-special-situation-devel oping-countries

———.n.d.“TheViennaConventionfortheProtectionoftheOzoneLayer.”UNEnvironment Programme.AccessedFebruary2,2022b.

https://ozone.unep.org/treaties/vienna-convention/vienna-convention-protection-ozone-la yer.

Ritchie,Hannah,andMaxRoser.2018.“OzoneLayer.” Our World in Data,April. https://ourworldindata.org/ozone-layer.

USEPA(UnitedStatesEnvironmentalProtectionAgency).2015.“InternationalTreatiesand CooperationabouttheProtectionoftheStratosphericOzoneLayer.”Reportsand Assessments.July15,2015.

https://www.epa.gov/ozone-layer-protection/international-treaties-and-cooperation-aboutprotection-stratospheric-ozone.

CHILDRENONTHEWITNESSSTAND:HOWTHELANGUAGEOF CROSS-EXAMINATIONCONFUSESCHILDTESTIMONY

byAdelineVanBuskirk Introduction

The purpose of a courtroom trial is to reliably reach the truth of the matter at hand and administer justice as required. To arrive at the truth,itisusuallynecessarythatlawyersquestion witnesses. Ideally, this process involves straightforward questioning that rationally leads the witness to reveal what they know; witnesses should not feel coerced or misled by the line of questioning. However, this is often not the case. Due to the nature of the lawyer-client relationship, inwhichthelawyerisfrequentlymorededicatedtoprotectingtheirclient’sinterests than preserving the procedure's integrity, lawyers are incentivized to deceive witnesses on the stand (Tiersma 1999, 164). Lawyers, who are trained in legal jargon and proceedings, are in control of the questions asked and the extent to which witnesses can answer. This power imbalance allows them to use tactics, such as leading or loaded questions, to mislead witnesses onthestand.

For the highly-educated witness, a deceitful line of questioning may notposeaproblem. These people can reject the assumptions of lawyers and carefully articulate responses to complicated questions (Tiersma1999,174).Butforthelessfortunateandexperiencedwitnesses, such as someone with little education or who speaks a dialect other than Standard American English, this style of questioning poses a serious barrier to reaching the truth and gives lawyers thepowertounjustlyinfluencetheoutcomesofcases(Lippi-Green1997,184).

One type of such vulnerable witness is children, who frequently appear in domestic abuse, divorce, and sexual assault trials. Due to their limited ability tocomprehendthemeaning of the language used in questions, children are especially vulnerable to confusion as witnesses duringcross-examinationinacourtoflaw.

Children’sLinguisticAbilities

Children have underdeveloped language skills that keep them from fully understanding questions and responding appropriately. For example, many children up to age three struggle to interpret sentences using passive verbs because they have been taught that the subject of a sentence should appear first (Shuy 2005, 10). So, a question such as “were you yelled at by him?” could be misinterpreted as “did you yell at him?”whichmayelicitaresponseoppositeto thetruth.

In a similar vein, children as old as five or six can have immense difficulty deciphering pronouns and indexicals in questions (Walker 1999, 26). Pronouns are words that replace and refer to other nouns, such as “she” or “its,” and indexicals are words that change associations depending on the context, such as “here” and “that.” Children often failtoidentifywhichnouns and pronouns refer to the same person, so a sentence such as “do you know if he saw him?” could prompt several contradictory responses from children. Thisisbecausechildrenstruggleto keep track of the information in situations with multiple characters, situations, or clauses. Kids up to age eight struggle to recognize the contrast of certain indexicals, such as “here/there” and “this/that” (Shuy 2005, 7). This could cause confusion when questioners explicitly utilize these contrasts,suchasinthequestion:“didyouputithereorthere?”

Questions with negatives can pose a challenge for understanding by childrenofanyage, and even some adults (Walker 1999,42).Likeinverbuse,childrentypicallylearnthatnegatives appear in main clauses, and fail to understand them when they appear in dependent clauses. So questions such as “did you explain that he was not nice?” might become “did you not explain that he was nice?” which are nearly opposite in meaning. Further, double negatives can be extremely confusing for children to decipher, such as in the question, “do you deny that you neverreturned?”(43).

Before children enter the intense courtroom environment, they are prone to misunderstanding even straightforward questions. Once these questions become more complicatedormisleading,theybecomemuchmoredifficultforchildrentocomprehend.

Cross-ExaminationinCourt

There are several types of questions and techniques that lawyers use during cross-examination to obtain informationfromtheirwitnesses.Aleadingquestionindicatestothe witness that there is an expected answer, such as the question, “didn’t you go to the park this weekend?” (Tiersma 1999, 164). This particular leading question utilizes a negative yes/no question to indicate that the answer should be positive, though the true meaning ofthesentence is complicated. This same tactic can be achieved by adding tag questions to the end of statements: “you went to the park this weekend, didn’t you?” (168). Lawyers use leading questions to guide the narrative of witness testimony. To avoid falling into this trap, witnesses must be able to understand the question and have the confidence to go against the guidance of thelawyers.

Another frequently used tactic is asking loaded questions. Loaded questions hold within them presuppositions, or propositions that may or may not be agreed upon by the receiver (Walton 1999, 381). A loaded question could be: “did you plan on yelling?” This question presupposes that the yelling hasoccurredbecausethisisnotthe‘at-issue’content;whatisupfor discussion was whether or not it was planned. Responding to loaded questions requires the answerer to recognize the unshared presupposition and demonstrate that they do not agree with thecontext.

Due to the nature of courtroom proceedings, lawyers tend to speak very formally (Tiersma 1999, 168). While some lawyers do this with the intention of increasing their credibility, this often has the impact of adding confusing or unnecessary words. Take this question from the trial of the murder of Sandra Jackson, for example: “Now, what if any effort was made on your part or on thepartofDr.Weatherall,Doctor,todeterminewhetherthisyoung man immediately prior to his death had ingested any heroin?” (169). This sentence adds unnecessary words, such as “if any.” It uses “on the part of” rather than the simpler “by” and “prior to” rather than “before.” To get to the heart of the question and respond honestly, the witnessmustbeabletokeeptrackofmultiplesubjectsandparsethroughverboselanguage.

ChildreninCross-Examination

The courtroom evidently requires a higher level of linguisticabilitythaneverydaylifeto understand and respond to leading questions, loaded questions, and wordy language. Thus, children, with their especially limited language skills, are particularly susceptible to misinterpretingquestionsincourt.

For example, the following testimony came from a six-year-old boy in a cross-examination(Myers1987,883):

Q:Now,Billy,ifIsaidmyshirtwasred,thatwouldbealie,wouldn’tit?

A:Yes.

Q:SoIshouldn’tsaymyshirtisred,shouldI?

A:Yes.

These leading questions utilize negative tag questions to add an element of persuasion and confusion. The repeated tag questions are meant to elicit ayesandthenanoanswer But,dueto the child’s limited understanding of negative questions, he is unable to respond as the lawyer plans – depending on the lawyer’s intentions when using confusing language. Either way, the child contradicts himself and ultimately discredits himself as a witness. This is no fault of his own, but only due to the confusing questioning by the lawyer and his limited understanding of language.

Another example of a lawyer using their persuasiononachildcomesfromthetestimony ofafour-year-oldboyinadomesticviolencecase(Myersetal.1989):

Q: Do you remember the last time that we talked, andthatmeandyouweregoingtoget anicecream,anddoyouremembermyfriendthatwaswithme?Theotherguythathada beardlikeIdo?Doyourememberhim?

A:Yes,Irememberthat.

The lawyer and child had never met, and everything in the question was fabricated.Thislineof questioning uses numerous confusing clauses and involves multiple characters. Further, this loaded question presupposes that the two had met (and planned to get ice cream with a third person). The additionofunnecessaryclauses,suchastheanecdoteabouttheicecream,increases the amount of information the child must handle at once. The creationofthethirdcharacter,the unknown man, adds to the confusion, especially when the “him” pronoun is used in the final sentence. This question requires the child to keep track ofmultipleactionsandrememberwhich person the pronoun is referring to. Rather than admit that this question is too much for him to understand, the child pleases the lawyer by stating he remembers these falsified events. Once again, the child is completely discredited; the judge and jury are unlikely tobelieveachildwho readilyadmitstorememberingeventsthatneveroccurred.

Conclusion

Testifying in court requires a high level of linguistic ability tocomprehendthequestions asked, avoid unjust persuasion by lawyers, and keep track of relevant information (Tiersma 1999, 168). Not only do children struggle with these tasks, but they often have a hard time completing much more basic ones, such as identifying pronouns, recognizing negatives, and comprehending passive voice (Shuy 2005, 7). So when children take the witness stand, they struggle to understand what is asked of them and are often overwhelmed, nervous, and easily manipulable.

This struggle, compounded with the culture of the courtroom which prompts lawyers to protect their client's interests above the child’s well-being, allows and encourages lawyers to discredit the accounts of children. But when the testimonyofachildisacriticalfactorinacase, childrenmustbeabletousetheirvoicestostatethetruth.

To do this, children need more protections and assistance in court. There is no easy answer when it comes to child testimony – age limits on testimony and required corroboration will only serve to silence children further – but first understanding the limitations of children’s

language will allow interrogators and their observers to have a better understanding of what is true and what isaproductofconfusion(Hedderman1987).Allowingchildrentotelltheirstories in their own words, without the forced question-answer structure, will take some control away from the lawyers and let children express themselves to their ability (Shuy2005,18).Thatsaid, these are necessary changes in the courtroom procedure, and they willservetofulfillthecourt’s intendedpurposeofreliablyreachingthetruth.

Bibliography

Hedderman,Carol.1987.“Children’sEvidence:TheNeedforCorroboration.” Research and Planning Unit,no.Paper41. Lippi-Green,Rosina.1997.“TheRealTroublewithBlackLanguage.”In English With an Accent.Routledge.

Myers,John,JanBays,JudithBecker,LucyBerliner,DavidCorwin,andKarenSaywitz.1989. “ExpertTestimonyinChildSexualAbuseLitigation.” Nebraska Law Review 68(1). https://digitalcommons.unl.edu/nlr/vol68/iss1/2

Myers,JohnE.B.1987.“TheChildWitness:TechniquesforDirectExamination, Cross-Examination,andImpeachment.” Pacific Law Journal 18:801–942. Shuy,Roger.2005.“Children,Language,andtheLaw.” Montana Law Review 66(1). https://scholarworks.umt.edu/mlr/vol66/iss1/4.

Tiersma,Peter.1999. Legal Language.UniversityofChicagoPress. Walker,AnneGraffam.1999. Handbook on Questioning Children.2ndEd. Walton,Douglas.1999.“TheFallacyofManyQuestions:OntheNotionsofComplexity, LoadednessandUnfairEntrapmentinInterrogativeTheory.” Argumentation 13(4): 379–83.https://doi.org/10.1023/A:1007727929716.

BORDERSOFTHEHEARTLAND:MORALCULPABILITYANDDEPARTURE JUSTIFICATIONSINMETHAMPHETAMINESENTENCING

byMiraBohannanKumar

Introduction:TheLawoftheLand

Sentencing judges write memoranda to explain their decisions regarding each defendant they sentence. The languagetheyuseis,however,morethanjustanexplanation;judgesdescribe the defendants they sentencefordrugcrimesinwaysthatservetolimitthehigh-levelculpability implied by various sections of the United States Sentencing Guidelines (“Guidelines”). To demonstrate this trend, I will present examples in which judges use not only the legal designations and arguments available to them, but also couch their determinations in popular conceptions of culpability and respectability. In the phrasing of these descriptions,judgesimply more than their words may technically indicate about defendants’ levels of “worthiness” for below-Guidelinessentences.

In order to understand judges’ motivations in providing this kind of context for their decisions, background on sentencing is necessary DrugsentencingisdictatedbytheGuidelines, specifically §2D1.1, and operates through a seriesofdeterminationsgovernedbyfactorssuchas quantity and purity of product and criminal history of the defendant, which combine to give sentencing ranges purporting to be responsive to circumstances.3 In the early 2000s, a series of Supreme Court cases created and expanded judicial powers of departure from Guidelines sentence ranges based on multiple factors like policy disagreements, individual circumstances, and beliefs;4 these include the position that a certain case does not meet the criteria to be considered a ‘heartland’ case, or a case that has the profile intended to be addressed by a Guidelines sentence. See USSG §4A1.1(b). This means that when sentencing, the burden essentially falls on judges to explain their reasoning and thus to show that defendants do not qualify as ‘heartland’ cases–that their roles and backgrounds do not match the kind of case the Guidelinestargetwithharshsentencing.

Judges do this in two main ways. First, they typically run through a summary of their disagreements with Guidelines sentences, often including some of the background information that I have already discussed and usually citing other judges’ rationales and the growing movement in order to substantiate their decisions. They use specific language to describe the kind of case that is not a ‘heartland’ case; then, they use this same language to describe the defendant in the case in question. Next, theydiscussfactorsindefendants’livesanddefendants’ traits that may mitigate culpability. The language that they use and the facts that they chooseto bring out in these descriptions of defendants typically play into assumptions and cultural norms regarding responsibility, morality, and respectability. I will provide examples from several methamphetamine sentencing memoranda, U.S. v Newhouse, U.S. v Ibarra-Sandoval, U.S. v Moreno, U.S. v. Hubel, and U.S. v. Johnson, to discuss the assumptions and norms upon which judges rely inusingthesedescriptionsandthewaysinwhichthislanguageplaysintopreexisting orconstructedschemataofculpabilitytojustifydownwarddeparturesinsentencing.

3 USSG§2D11 Methodsofdeterminingindividualsentences,includingsentencingtables,canbefoundinUSSG §5A

4 See United States v Booker, 543U.S.220(2005); Kimbrough v United States, 552U.S.85(2007);and Spears v United States, 551US 261(2009)

AffairsoftheHeart:CaseAnalyses

In methamphetamine sentencing memoranda, judges frequently point out that the Guidelines are meant to target ‘kingpins’ or ‘career criminals’ andcontrastthiswiththerolesof ‘low-level’ ‘street dealer,’ ‘courier,’ ‘mule,’ or other more specific terms. An excellentexample of this terminology usagecanbefoundin United States v Newhouse, whereJudgeMarkBennett begins his memorandum by calling defendant Lori Newhouse “a low-level pill smurfer, ‘[a] person who busily goes from store to store acquiring pseudoephedrine pills for a meth cook, usually in exchange for finished product’” (957). Bennett’s intentions in using this language become clear as he develops the central argument of his memorandum: theinappropriatenessof the ‘career offender’ guideline to Newhouse.5 He continues, “Not only is Newhouse a merepill smurfer, she is truly a “one day” Career Offender because her two prior drugpredicateoffenses arose out of a single police raid of a Motel 6 room over a decade ago, on February26,2002,in Altoona,Iowa,whenNewhousewasjust22yearsold”(U.S. v. Newhouse,957).

Bennett does two main things with his language use at this early stage in the memorandum. First, the use of the almost childish-sounding slang term ‘pill smurfer;’ the definition Bennett provides along with the slightly patronizing tone created by the use of the word ‘busily’ therein; and the word ‘mere’ immediately predispose the reader to think of Newhouse as harmless and her role in the drug activity as minimal. Bennett later adds that “Newhouse was involved in purchasing legal cold remedies containing pseudoephedrine for small meth cooks,” phrasing that continues to limit Newhouse’s supposed culpability for criminal activity (982). Second, Bennett uses measures of time tohisadvantage.Heemphasizes that Newhouse’s predicate offenses aroseon‘oneday’andthattheyhadoccurred1)morethana decade earlier and 2) early in Newhouse’s life.Thisprovidesasharpcontrasttotheassumptions surrounding the term ‘career offender,’ which implies a long, serious, and repetitious criminal history. From the top of the memorandum, then, Bennett creates a seeming disjoint between Newhouse’scriminalhistoryandtheenhancementwithwhichsheischarged.

Later in the Newhouse memorandum, Bennett goes on to discuss her life and personal history. He writes that she endured abuse and neglect as a child, became dependent on drugs from a young age, and hasbeensurroundedbypeoplewithhistoriesofsubstanceabuse.Bennett uses the word “low-level” 27 times in this sentencing memorandum, and repeatedly writes that Newhouse was involved in small-scale drug trafficking in exchange for being provided with methamphetamine, that “Newhouse did not commit her crimeoutofgreedorinordertosupport a lavish life style, but to feed her chronic drug addiction” (987). In so doing, heemphasizesthe degree to which Newhouse does not fit within the career offender guideline, strips away ideas about any possible danger she may pose to society, and positions her as a victim of addiction ratherthanasahabitualcriminal.

Bennett ultimately departed from Newhouse’s “shockingly high” Guidelines range of 262-327 months and sentenced her to 96 months in prison. He ties together his justification for this departure by referencing the 2004 Supreme Court case that expanded judicial discretion on the basis of policy disagreements: “[U.S. v.] Booker discretion is at its zenith when sentencing courts make the judgment that the particular conduct of the defendant falls only marginally within the scope of a guideline that even the Commission regards as overbroad and (in some

5 Thecareeroffenderenhancementisappliedifthedefendanthasahistoryoftwoormoredrugand/orviolent offenses;inNewhouse’scase,tworelativelyminordrugoffenses(whichshouldhavebeencountedasasingle offense,duetotheirhavingoccurredinthesameraid,andwerenotcombinedonlybecausetheprosecutorhappened tofilethechargesondifferentdays)servedas‘predicates’forthecareeroffenderenhancement

applications) counter-productive” (974). His useoflanguagein Newhouse supportshisargument thatNewhouse’sconduct“fallsonlymarginally”withinthecareeroffenderguideline. One aspect of §2D1.1 that has received a great deal of attention in the courts is methamphetamine sentencing. Methamphetamine that is ‘substantially’ or more than 80 percent pure, also known as‘ice,’ispenalizedmuchmoreharshlythan‘mixture’methamphetamine. See USSG §2D1.1, Note(C)onDrugQuantityTable.Therationalebehindthisstandardisthatinthe past, methamphetamine of a higher purity sometimes correlated with a higher involvement or position in the hierarchy of a trafficking organization. See USSG §2D1.1, Commentary 27 (C). However, since the 1990s, average methamphetamine purity has increased dramatically, and today there is little scientific basis for this kind of standard(U.S. v. Hayes 2013).Thishasledto increased judicial activism surrounding methamphetamine sentencing, including judges making more andmorefrequentdeterminationstodepartfromtheGuidelinesinmethamphetaminecases on policy grounds.6 United States v. Ibarra-Sandoval is a methamphetamine sentencing case in whichthejudgecarefullyuseslanguagetodemonstrateadiscrepancybetweenGuidelinestargets andthedefendant:

[f]ar from having a prominent role, Mr. Ibarra–Sandoval was a low-level courier who didn't even know thecontentsofthebaghecarriedexceptthattheycontained drugs.ThatMr.Ibarra–Sandoval happened tohavethe misfortune oftraffickingin methamphetamine-actual instead of the less heavily punished methamphetamine-mixture does not change his level of culpability (Ibarra-Sandoval,1256;emphasesadded)

In this excerpt, Judge Robert Brack depicts Ibarra-Sandoval as unsuspecting and low-status, immediately creating a sense of sympathy with his circumstance. This is compounded by the language he uses to make the crime for which Ibarra-Sandoval was charged appear almost accidental–that Ibarra-Sandoval ‘happened to have the misfortune’ of being involved in something he was not fully aware of. He repeatedly reiterates Ibarra-Sandoval’s lack of knowledge: “Unbeknownst to Mr. Ibarra-Sandoval…he didn’t know the contents of the package…didn’t even know…” (1251). The lack of intentionality and awareness emphasized here immediately serves to limit his responsibility, especially for the sentencing enhancement that technically would apply based on the purity of the drug that Ibarra-Sandoval was transporting. This lays the groundworkforJudgeBrack’scontentionthatthepurityenhancement shouldnotapplytoIbarra-Sandoval. Beyond role-based determinations, Judge Brack uses otherstrategiestobolsterapositive portrayalofIbarra-Sandoval.Hewrites,

Mr. Ibarra–Sandoval ran his own furniturebusinessfortenyearsandalsoworked in construction. (Doc.39at3.)Mr Ibarra–Sandovalisahusbandandthefatherof two youngchildren,one11yearsoldandtheothereight.(See PSR¶43.)In2007, Mr Ibarra–Sandoval and his wife lost a third child at childbirth due to physician negligence. (PSR ¶ 44.) Mrs. Sandoval, Mr. Ibarra–Sandoval's wife, receives Social Security Disability Insurance for low back pain and diabetes, and shealso reliesonfoodstampstosupportherselfandthecouple'stwochildren.(1250)

6 Alongwiththecasesexaminedinthispaper,see, e g , U S v Nawanna, 321F.Supp.3d943(N.D.Iowa2018); U S v Carrillo, 440F Supp 3d1148(ED Cal 2020); U S v Bean, 371F Supp 3d46(DNH 2019)

Judge Brack plays into cultural norms to argue that Ibarra-Sandoval’s culpability is misrepresented by the charges brought against him. Ibarra-Sandoval is shown to be a hard worker and a good husband and father; he and his family have suffered hard times and tragedy. All of these factors are used to support the argument that Ibarra-Sandoval is agoodpersonwho is undeserving of a harsh punishment. Moreover, Judge Brack implies that if Ibarra-Sandovalis incarcerated for a long period, his wife will find it difficult to support thefamily.Combined,all of these factors paint Ibarra-Sandoval as an unsuspecting family man who essentially stumbled into involvement in criminal activity and who does not warrant harsh treatment by the criminal justice system. Judge Brack chose to sentence Ibarra-Sandoval as though the methamphetamine in his case was ‘mixture,’ and departed down from the 63-78-month Guidelines range to a 46-monthsentence(1250).

Ibarra-Sandoval is far from the only case in which judges capitalize on cultural associations and assumptions about demographic groups to boost the perceived moral status of the defendant. In U.S. v Hubel, Judge JosephBataillonrepeatedlyusesgendernormsandpublic perception to great advantage. He writes that defendant Kendra Hubel “was an addict recruited by her manipulative boyfriend to act as a go-between in drug transactions,” that she was “a victim of sexual abuse,” and that she “sold drugs atthebehestofherboyfriend,whousedherto shieldhimselffromprosecution”(U.S. v. Hubel,853).

Here, Judge Bataillon capitalizes on the popular assumptions of women trapped in toxic relationships–that they are without the ability to act freely and often are restricted or controlled by their abusive partners. Hubel is shown to be faultless for her actions inpartbecauseitseems obvious that someone in an abusive relationship cannot be faulted for what they were manipulatedorforcedtodo.Inaddition,theideaofanabusiveboyfriendusinghisgirlfriendasa ‘shield’ raises anger toward the boyfriend figure not solely because he is making someone else take the blame for his actions, but also because popular conceptionsofgendermeanthatheasa man is presumed to be using a weaker person–a woman, who traditionally is seen to require more protection or delicate treatment–as that shield, increasing the degree to which his actions are morally faulty and hers are blameless. Judge Bataillon cements the positive depiction of Hubel by including evidence that “Hubel's efforts at recovery andrehabilitationareatypicaland exceptional,” and that the government “stated that the defendant had provided ‘good’ and ‘truthful information’ in her safety valve interview and that she was ‘on the right path’” (853, 847). The juxtaposition of her earlier actions presumably being controlled versus a government approval of her current path supports the idea that Hubel herself is a moral person who wasled into criminal activity by outside actors. JudgeBataillondeparteddownwardfromtheGuidelines range of 37-46 months; he declined to give Hubel prison time and instead sentenced her to five yearsofsupervisedrelease(854).

In perhaps a still more demographic-dependent instance, Judge Michael Urbanski introduces the defendant in U.S. v Moreno by saying that he is “a 22 year old United States citizen with no criminal history other than driving offenses” (U.S. v. Moreno, 1; emphases added). Three immediate assumptions about Moreno come into play here. First is the criminal history element (“no criminalhistoryotherthandrivingoffenses”),which,similarlytoseveralof the other cases I have discussed, serves to reinforce Moreno’s character as fundamentally good, rather than routinely and irreparably unlawful. Second is the age factor. As in Newhouse, Moreno’s youth (“22 year old”) is used to show his lack of culpability; in addition, Judge Urbanski goes on to point out that it is “the influence of [Moreno’s] brother, an incarcerated

felon,” that causedhiscriminalbehavior(1-2).Morenoisthereforenota criminal inhimself,but isatroubledyouthwhohasfallenundertheinfluenceofone.

It is the final assumption in this line, however, that is perhaps the most telling: the inclusion of Moreno’s citizenship status. Imagine that Judge Urbanski were sentencing a young White man named Michael Andrew Moore; one might look askance at a seemingly arbitrary mention of Moore’s citizenship status. But because the defendant is Miguel Angel Moreno, Judge Urbanski’s reference to his citizenship begins to make more cultural sense. His legal status–especially the fact that he is a citizen–serves as another metric here for his moral goodness. Judge Urbanski capitalizes on public perception of those who have or achieve citizenship status as fundamentally law-abiding, as opposed to undocumented immigrants, who may be seenas‘illegal’simplybyexisting.Morenoisnotaninherentinfringement,heissaying; instead, Moreno is a young man who ‘goes aboutthingstherightway’–butbrieflylostthatway Judge Urbanski departed downward from Moreno’s Guidelines range of 135-168 months and sentencedMorenoto36months(1).

On top of case-specific manipulations of cultural norms, multiple judges even use references to historical figures, fictional characters, and well-known entities in order to underscore the contrast between the defendants they sentence and the targets of Guidelines sentencing. “Newhouse is not Iowa's Pablo Escobar. She is not the kingpin of the Zeta cartel,” Bennett writes (Newhouse, 986); in U.S. v Johnson, Judge Myron Thompson opines, “To draw on the popular imagination, it is the Pablo Escobars, Stringer Bells, Tony Montanas,andWalter Whites of the world who bear the greatest culpability, not the street peddlers, middlemen, and mules, regardless of the quantity of drugs that happens to be involved in the crimes for which they are convicted” (U.S. v Johnson, 1221). These judges are explicitly juxtaposing the culpability of the defendants they sentence with intense, large-scale, and evenfictionalcases.In so doing, they divorce the ‘low-level’ defendants they sentence from the immediate association with violence, drama, and detailed descriptions of wrongdoing that these names possess, and therebyabsolvethesedefendantsofmoralfault.

BordersandScales:MeasuringtheHeartland

On an individual level, judges’ use of language seems to be fairly effective in justifying downward departure fromGuidelinessentencesindrugcases.EachofthecasesIhaveexamined was a caseinwhichajudgeplayedintolegalandculturalassumptionsanddefinitionsinorderto present a convincing argument for reduced culpability and moral fault in the defendant in question. It must be considered, however, that manipulating norms to judges’ and defendants’ advantage only works when: (1) The defendant and charge meet a certain set of criteria; (2)the law permits judicial discretion; (3) the judge is willing to make these arguments; and (4) our society continues to subscribe to the norms judges manipulate in these cases. Each of these factorsisinitselfproblematicandhighlyvariable,fortheseamongotherreasons:

1. Many defendants may not conform to a dominant notion of respectability, and marginalized defendants may be less likely to get sympatheticdepictionsortohavetheir backgrounds accurately represented or interpreted by the legal system. In addition, expanding this kind of context toviolentcrimeswouldneedacompletelydifferentmoral framework,since‘nonviolence’isacentraltenetofmanyofthesejustificationschemata.

2. The law permits a certain level of judicial discretion in drug sentencing, but mandatory minima still exist, especially when Guidelines enhancements are applied. In other kinds ofcases,discretionisvastlymorelimited.

3. With discretion comes disparity. Judges in different districts or simply with differing sentencing philosophies are bound to use these strategies to differing degrees. It is also possibletoreversethesetacticstosentencedefendantsmoreharshly.

4. While it might be easy for many people to say that activity currently deemed criminal should be stigmatized orthathigh-leveldrugtraffickersshouldbemoreharshlypunished than street-level dealers, this can get difficult when considering other assumptions upon which judgesrely–assumptionsliketheonein Moreno thatfindscitizenshipstatustobea useful metric of morality, or in Newhouse that for more numerous or violent predicate offenses,a25-yearGuidelinessentencecouldhavebeenappropriate.

Moreover, due to the staggering harshness of Guidelines penalties in these cases—just five grams of methamphetamine trigger a five-year mandatory minimum sentence7—many defendants are being sentenced to lengthy terms in prison despite judges’ departures. Even though these sentences are not as lengthy as they would otherwise be, it is unclear whether the strategies judges currently employ are the most effective to soften sentencing even in cases where they can be utilized. While some defendants may benefit to a certain extent from these tactics, and it is certainly worthy ofnotethatjudgesaredoingconceptualworkintheirlanguage choices in order to show justifications for departing downward in sentencing, these effects are not scalable. Without a broad population of ‘career criminals’ and ‘heartland cases’ against whom to compare the purportedly decreased culpability of these defendants, judges lose these grounds for argument. An example of sympathetic depiction and language manipulation is just that–an example, and not a paradigm shift. In the end, drawing boundaries for respectability continuestoperpetuatethenormsuponwhichmassincarcerationrests.

7 U S v Hayes, 948F Supp 2d1009(ND Iowa2013), (“[A]fterOctober21,1998,thefive-yearmandatory minimumistriggeredby5gramsofmethamphetamineor50gramsofmethamphetamine...In2010,amandatory minimumpenaltyappliedin831%ofmethamphetaminecases,thehighestrateofanydrugtype”)

Bibliography

UnitedStatesv.Ibarra-Sandoval,265F.Supp.3d1249(D.N.M.2017).

UnitedStatesv.Newhouse,919F.Supp.2d955(N.D.Iowa2013).

U.S.v.Hayes,948F.Supp.2d1009(N.D.Iowa2013).

U.S.v.Hubel,625F.Supp.2d845(D.Neb.2008).

U.S.v.Johnson,379F.Supp.3d1213(M.D.Ala.2019).

U.S.v.Moreno,CriminalActionNo.5:19CR002(W.D.Va.Aug.5,2019).

THEUNCONSTITUTIONALTREATMENTOFTRANSGENDERPRISONERS

BySophieYates

Over the last few years, our cultural understandingofgenderhasbecomeincreasingly separated from our biological definitions of sex. People regularly include their preferred pronouns in introductions and email signatures while forms that ask for your gender information offer more options than simply male or female. And yet, despite our budding awareness of the complexities that underlie gender, many systems persist that actively reinforce and rely on the biology-centric gender binary (Sumner and Sexton 2016, 617; Jenness and Fenstermaker 2014; Agbemenu 2015).There is arguably no system more reliant ontheconflationofgenderandsex,inlinewithbinarythinking,thantheprisonsystem.

One of the most basic tenets of the United States prison system is gender segregation. This tenet, however,reliesontheconflationofgenderandsex,anassumptionthatisundermined by transgenderandgendernonconformingindividuals(SumnerandSexton2016,637).Insteadof adjusting to accommodate evolving understandings of gender, prisons have cemented their commitment to biology and in doing so have left a group unconstitutionally vulnerable (Agbemenu 2015, 11). The failure to provide transgender prisoners with access to gender confirmation surgery and to house prisoners according to theirgenderidentityviolatestheEight Amendment’sprohibitionofdeliberateindifference.

Theterm“transgender”isanumbrellatermthatreferstopeoplewhosegenderidentityis different from the one they were assigned at birth (“Sexual Orientation” n.d.). In the past, this incongruence between one’s biological sex and gender identity could be diagnosed as Gender Identity Disorder (GID) (Halbach 2015). However, in the 5th edition of the Diagnostic and StatisticalManualofMentalDisorders(DSM-5),theAmericanPsychiatricAssociationreplaced the term GID with “gender dysphoria,” in order to reduce the stigma associated with the condition and eliminate exclusive binary-basedlanguage(APA2013).AccordingtotheDSM-5, gender dysphoria is categorized by “[a] marked incongruence between one’s experienced/expressed gender and assigned gender” for at least six months and “is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning” (APA 2013).Under this definition, the significantstresscausedbygender incongruence, rather than one’s transgender identity, is the diagnosable medical condition (Combsetal.2018).

Currently, the accepted treatment for transgender individuals who experience gender dysphoria is medically facilitated gender transition. The World Professional Association for TransgenderHealth(WPATH)regularlypublishesrevisedversionsofitsStandardsofCarefor the Health of Transsexual, Transgender, and Gender Nonconforming People (WPATH 2012). The most recent version, published in 2012, suggests that treatment plans be individualized and developed by individuals and their doctors, but states that plans mayinclude“changesin gender expression and role…; hormone therapy;... surgery to change primary and/or secondary sex characteristics; and...psychotherapy” (Braver 2020). Numerous medical organizations havedeemedthesestandardstobethebestpracticesfortreatmentofindividuals suffering from gender dysphoria, including the American Psychiatric Association, the AmericanMedicalAssociation,andtheNationalCommissiononCorrectionalHealthCare.

In 1976 the Supreme Court established that prisoners have a right to necessary medical care, and that failure to provide them with such could constitute deliberate indifference in violationoftheEighthAmendment’sprotectionagainstcruelandunusualpunishment. Estelle v

Gamble, 429 U.S. 97 (1976). In order to demonstrate that the prisoner’s constitutional rights have been violated, one must pass a two pronged test. The first prong requires that one show objectively that “a prisoner's particular medical needs constitute a ‘serious medical need’” (Halbach 2015). The second prong is a subjective prong and requires showing that the prison officialactedwithdeliberateindifference.

As of 2015, the Supreme Court has not set a standard for what constitutes serious medical need; however, lower court rulings can offer some unofficialstandards(Glidden2012). In the opinion of Mahan v. Plymouth County. House of Corrections, 64 F.3d 14, 18 (1st Cir. 1995), the First Circuit quotedtheirearlierrulingin Gaudreault v Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir.1990), writing that a serious medical need is one “that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Mahan, 64 F.3d at 18. According to the Ninth Circuit, a serious medical needis“onethatinvolvesasubstantialriskof serious harm if not adequately treated.” Kosilek, 889 F Supp. 2d at 207 (citing McGuckin v Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). The Second Circuit posits a multi-factor analysis fordeterminingwhetheraprisoner’smedicalneedsaresufficientlyserioustomandatetreatment. Citing Chance v Armstrong, 143 F.3d 698, 702 (2d Cir. 1998), the Court outlined three non-exhaustive factors for consideration: “(1) whether a reasonable doctor or patient would perceive the medical need in question as ‘important and worthy of comment or treatment,’ (2) whether the medical condition significantly affects daily activities, and (3) ‘the existence of chronicandsubstantialpain.” Brock v. Wright,315F.3d158,162(2dCir.2003). The Supreme Court’s definition of what constitutes “deliberate indifference” is slightly more clear. According to the Court, deliberate indifference “lies somewhere on the continuum between negligent conduct and conduct engaged in ‘for the very purpose of causing harm or with knowledge that harm will result’” Farmer v. Brennan, 511U.S.825,(1994).Whenapplied to the issue of prison healthcare, the Court has held that prison officials may be “deliberately indifferent if they purposefully fail totreatthemedicalneedbydenying,delaying,orinterfering withprescribedcare”(Church2016).PrisonofficialsareobligatedundertheEighthAmendment to provide prisoners with medical care, however “this obligation is met in full measure by the provision of adequate services: services at a level reasonably commensurate with modern medical science andofaqualityacceptablewithinprudentprofessionalstandards” United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987). The standard of deliberate indifference extends to the realm of inmate safety as well. Officials may be liable for deliberate indifference if they know of and willfully ignore a substantial threat to inmate safety. Farmer, 511 U.S. 825. However, “[d]eliberate indifference to a prisoner's need is balanced against security concerns” (Church 2016).Prison officials can thus escape liability iftheycandemonstratethattheirdenial of certain medical treatments or failure to take reasonable steps to abate known risks to prisoner’ssafetywas“basedonareasonablesafetyconcern”(Church).

In general, receiving any form of healthcare while incarcerated is difficult, but the lack of education surrounding transgender health issues and limited access to mental health professionals who are qualified to diagnose gender dysphoria, creates a unique set of obstacles that transgender prisoners are forced to tackle (Braver 2020). With limited access to professionals and the requisite of professional diagnosis before receiving care,thehealthissues of many transgender prisonersareleftunnoticedanduntreated.Receivingadiagnosis;however, doesnotguaranteetransgenderprisonersadequatecare.Asof2020,“nineteenstatesdonothave policies addressing treatment for incarcerated transgender individuals” leaving these prisoners’

treatment to the discretion of their prisons (Braver). While some states have defined hormone therapy as an appropriate treatment for the serious medical need created by gender dysphoria, access to gender confirmation surgeries continues to be almost nonexistent. In fact, it was not until January of 2022 that a federal inmate was even approvedforsuchaprocedure,despitethe medicalcommunity'sbeliefintheirlife-savingnature(Porterfield2022).

The serious and sometimes deadly effects of failingtoadequatelytreatgenderdysphoria establish it as a serious medical need that prisons are constitutionally required to treat with the appropriate means, including, in some cases, gender confirmation surgery. That gender dysphoria presents a serious medical need can be determined using any of the lower court’s evaluation standards. The medical community has recognized the importance oftreatinggender dysphoria, emphasizing that the failure to treat it can lead to other “serious medical issuessuch as depression, suicidality and self-castration” (Brown 2014). The consensus of the medical community regarding the importance of treatment and the severityofconsequencessatisfiesthe First Circuit’srequirementthattheneedbediagnosedbyaphysicianasmandatingtreatmentand the Second Circuit’s requirement that a responsible doctor would perceive the medical need as important and worthy of treatment. Research has also found that twenty percent of transgender people sufferingfromgenderdysphoriaandlackaccesstogender-affirmingcaredisplaysuicidal tendencies (Rudolph 2021). The incredibly high suicide rates and the elevated risk for self mutilation make it clear that failure to properly treat gender dysphoria can have life or death consequences. Reports of suicide, self-harm, and self-castration due to the denial of gender-affirming care demonstrate that gender dysphoria poses “a substantial risk of serious harmifnotadequatelytreated”asdescribedbytheNinthCircuit.

Proving that gender dysphoria is a serious medical need has not been a major challenge for those advocating forbetterhealthcarefortransgenderprisoners.AlthoughtheSupremeCourt has yet to rule it as such, as of 2016, six of the United States Courts of Appeals have done so, usingEighthAmendmentanalysis(Matricardi2016).

Despite the seemingly apparent consensus that gender dysphoria constitutes a serious medical need, disagreement persists regarding whether the failure to provide transgender prisoners with gender confirmation surgery constitutes deliberate indifference. One case that highlights this disagreement is Kosilek v. Spencer (Kosilek IV), 774 F.3d 63 (1st Cir. 2014), in which the First Circuit reversed the holding of the First Circuit panel in Kosilek v Spencer (Kosilek III), 740 F.3d 733 (1st Cir. 2014). Kosilek was atransgenderwomanincarceratedina men’s prison for the murder of her wife in 1992. Once imprisoned, she filed a suit against the Massachusetts Department of Corrections (DOC) for violating her Eighth Amendment rightto adequate medical care. In Kosilek v Maloney (Kosilek I), 221 F. Supp. 2d 156, 164 (D. Mass. 2002), the District Court recognized that her gender dysphoria presented a serious medical need, and she was provided with “hormonal treatment, female clothing, electrolysis, and continued mental health treatment.” Also at the recommendation of the gender identity specialist and consistent with WPATH’s StandardsofCare,ayearlaterKosilekwasconsidered for gender confirmation surgery (Church 2016, 23-24). Despite the recommendation of two doctors sex reassignment surgery would be the only adequate treatment, the DOC denied the request, stating that the WPATH standards on which the doctors relied were merely guideline and that the procedure raised concerns regarding security and housing. Kosilek requested an injunction, and the District Court approved, holding that “Kosilek suffered fromseveregender dysphoria and that sex reassignment surgery offered the only adequate medical treatment pursuant to the Eighth Amendment.” (Church 2016, 24). The Court held that the DOC’s

position was inconsistent with prudentprofessionalstandards,andthatdenialwasneithermade in good faith nor based on reasonable security concerns. The First Circuit panel upheld this ruling, but reversed upon enbancreview.Theenbanccourtheldthatthecircumstancesdidnot support a finding of deliberate indifference in the prison’s failure to provide gender-confirmation surgery, as the current treatment was constitutionally adequate despite its departurefromtheWPATHStandardsofCare. Kosilek IV,774F.3dat87.

In contrast, the Ninth Circuit found the exact opposite to be true. Edmo v Corizon, 935 F.3d 757, 797 (9th Cir. 2019). Faced with a prisoner experiencing similar levels of gender dysphoria, the Court held that “when officials deny medicallynecessaryGCStoanincarcerated transgender individual, the responsible officials are indeed deliberately indifferent” (Braver 2020). In their opinion, the Court identifies the WPATH Standards of Care asbeingtheprudent professional standards for the health care of transgender individuals and that these standards should be used in determining transgender prisoners’ medical need for gender confirmation surgery Failure to provide transgender prisoners with gender confirmation surgery whensucha procedure is deemed as medicallynecessarybythegoverningmedicalstandards,inthiscasethe WPATHStandardsofCare,isanactofdeliberateindifference. Edmo,935F.3dat792.

The split in the Circuit leaves it to the Supreme Court to determine whatfactorsshould be considered in analyzing the necessity of gender confirmation surgery and “[t]he proper standard for determining what amounts to deliberate indifference by prison officials” (Braver 2020). Historically, the Supreme Court has given “deference to consensus in the medical communityoveroutlieropinions”(Church2016).Inboth Atkins v Virginia,536U.S.304(2002) and Roper v. Simmons, 543 U.S. 551 (2005), the Court has referred to and relied on expert medical consensus in evaluating Eighth Amendment claims. Whether the Court would stick to thisprecedentisanotherquestion.

Transgender prisoners are also disproportionately vulnerable due to prison housing practices (Jenness and Fenstermaker 2016).Mosttransgenderprisonersarehousedinfacilities based on their sex assigned at birth rather than their gender identity.This housing policy has enormous impacts of the health and safety of transgender prisoners (Taylor, Lewis, and Haider-Markel 2018).Researchhasshownthat“transgenderprisonersare13timesmorelikely than their non-transgender counterparts to be sexually assaulted in prison” (Jenness and Fenstermaker2016).

In one study, “Fifty-nine percent oftransgenderinmates…inCaliforniaprisonsreported being sexually assaulted while incarcerated” (Jenness et al. 2007).For transgender women, in particular, being “housed in a general population male prison rather than a female prison,” greatly exacerbates the risk that she will “suffer from violence and sexual assault” (Taylor, Lewis, and Haider-Markel 2018, 289).According to one author, fortransgenderwomen,men’s prisons are synonymouswith a “torture chamber of incessant sexual humiliation” (Rosenblum 2016). The increased victimization of transgender women may be a result of the unique environment of men’s prisons, that “tend[s] to reinforce and reward extreme masculinity and aggression” (Braver 2020). By displaying femininity in this hyper-masculine culture, these inmates become “ever-available targets of sustained derogation” (Jenness and Fenstermaker 2016).

In response to the epidemic of sexual assaults in prisons, the 2003 Prison Rape Elimination Act was enacted. In 2012, the Obama Administration built off of these initial guidelines with theirenactmentoftheNationalStandardstoPrevent,Detect,andRespondto Prison Rape (Department of Justice 2012). These standards included provisions specific to

the treatment and protection of transgender prisoners, including a mandated screening for risk of sexual victimization and abusivenessthatacknowledgestheirincreasedvulnerability Under these standards, housing decisions for transgender prisoners were to be made on a case-by-case basis to ensuretheinmate’shealthandsafety,andwouldbereevaluatedatleast twice per year In makingthesehousingdeterminations,theofficialsmustseriouslyconsider a prisoners’ views regarding their own safety and “may not simply assign the inmate to a facility based on genital status” (Department of Justice 2012). According to the standards, protective custody and isolation from others may only be used as a temporary last resort when other, less restrictive measures are inadequate, thereby limiting the prison’s typical method of “protecting” transgender prisoners. While these standards theoretically offered a number of protections for transgender prisoners, a major constraint on the effectiveness of these standards was the Department of Justice’s failure to audit facilities to ensure compliance(Rudolph2021).

In 2018, President Trump reversed many of these Obama-era protections with his updated version of the Transgender Offender Manual which stated that initial housing be determined by the prisoner’sbiologicalsex,andthat“thedesignationtoafacilityoftheinmate’s identified gender would be appropriate only in rarecases”(Gathright2018).InJanuaryof2022, President Biden reimplemented the Obama-era Transgender Offender Manual, but the effect of this on the housing of transgender prisoners remainstobeseen(Sosin2022).Solongaspolicies give officials the unbridled discretion to determine housing onacase-by-casebasis,transgender women will continue to be incarcerated in men’s prisons where they are unconstitutionally vulnerable to violence.Bycontinuingtohousetransgenderwomeninmen’sprisonsdespitetheir vulnerability, corrections officials fail to “take reasonable steps to protect inmates against physicalandsexualharassmentandabuse,”asrequiredbytheEighthAmendment(Cahill2017).

Dee Farmer, a transgender women incarcerated in a men’s prison filed a suit against prison officials, alledgeing that they acted with deliberate indifference when they placed her in the general prison population despite their knowledge of the presence of violent offenders and her increased risk of victimization. While being kept in the general prison population, Farmer was repeatedly raped and beaten by otherinmates.Thecase, Farmer v. Brennan (1994),reached the Supreme Court in 1994. In their decision, the Court held that prison officials can be held liable under the Eighth Amendment when they act with “deliberate indifference” to inmate health or safety. According to the Court, to be deliberately indifferent, officials must know of and disregard “an excessive risk to inmate health or safety” Farmer, 511 U.S. at 837. Thus, it must be shown thatofficialshadrequisiteknowledgeofasubstantialriskandthattheyfailed“to take reasonable measures to abate it.” Farmer, 511 U.S. at 847–48. The Court also states that “evidence showing that a substantial risk of inmate attacks was “longstanding, pervasive, well-documented, or expressly noted by prison officials in the past,” along with circumstances that suggest the official being sued was exposed to “information concerning the risk and thus ‘must have known’ about it,” may be sufficient in demonstrating that the official actedwiththe requisite knowledge of the risk. Farmer, 511 U.S. at 842–43. With this decision, the Court indicates “that excessive risks include situations where an inmate belongs to “an identifiable group of people who are frequently singled out for violent attacks by other inmates” (Cahill 2017).

Based on this definition of deliberate indifference and the overwhelming evidence that transgender women in men’s prisons are at an exorbitant risk of being victimized, one could argue that the incarceration of transgender female prisoners in male prisons violates their

Eighth Amendment right to safety while incarcerated. Reports of transgender women experiencing elevated levels of violence in men’s prisons are “longstanding, pervasive, [and] well-documented.” Violence against transgender women in prison has even been portrayed in popular television shows such as Orange is the New Black. Based on thewidespreadpublicity of the victimization of this group, it is reasonable to infer that the average person is aware of the greater risk transgender prisoners face while incarcerated. By continuing to house transgender women in men’s prisons, officials disregard a known “excessive risk to inmate healthandsafety,”andshouldthusbeliableundertheEighthAmendment. Current Department of Justice Standards dictate that housing of transgender prisoners should be decided on a case-by-case basis considering a number of factors including the inmate’s own feelings about where they would feel safest. This policy, however, has numerous shortcomings. It recycles the ambiguous “case-by-case” standard mandated by the 2003 Prison Rape Elimination Act without implementing any safeguards to ensure that all factors are thoroughly considered. This may allow states to continue to claim that they have “carefully considered each placement even if every one of their 1,000 transgender prisoners was housed according to sex assigned at birth” (Sosin 2022). Another shortcoming is that this policy does not extend to state prisons, where, according to a 2020 NBC news investigation 0.3% of transgender prisoners are housed in facilities consistent with their gender identity(Sosin2020). The immense discretion inherent in this policy provides no insurance for the safety of transgender prisoners, specifically transgender women, while incarcerated. By ruling that the incarceration of transgender women in men’s prisons in spite of evidence of their disproportionate victimization, is an act of deliberate indifference, the Court could establish a constitutional foundation for policies that mandate the housing of transgender women in women’s prisons. Such a ruling would guarantee that transgender women who wantedtoreside in and would be safer in female facilities have the ability to do so. This rulingwouldalsooffer an opportunity to ensure the rights of transgender prisoners in state prisons, as the Eighth AmendmentisapplicabletotheStatesthroughtheFourteenth. Not only would this change in housing policy likely reduce the violence faced by transgender individuals in prison, in doing so it would weaken one of their “strongest” arguments against providing transgender prisoners with access to gender-affirming healthcare. The standard of deliberate indifference does not hold officials liable for failing to provide adequate care when their failure to do so is based on safety concerns. Helling v. McKinney,509 U.S. 25, 36-37 (1993). Thus, when denying gender-affirming care to transgender prisoners suffering from gender dysphoria, officials argue that due to the nature of hormone therapy and gender confirmation surgery, in that it affects physical appearance, create a security risk. Battista, 645 F.3d 449, at 451; Kosilek II, 889 F.Supp.2dat197-98; Soneeya v. Spencer,851F. Supp. 2d 228, 240, 247-48 (D. Mass. 2012). Capitalizing on the issue of sexual assault, prison officials attempt “to make this denial of medical care look likeadisplayofconcernforprisoner safety” (Agbemenu 2015). They argue that providing transgender women with care that could increase their presented feminity, these individuals would become a bigger target in the hyper-masculine detentionenvironment.Thus,bydenyingtransgenderwomenthiscare,theyare taking reasonable steps to ensure institutional security. By housing transgender women in women’s prisons, this concern for institutional safety becomes obsolete, as appearing feminine in a women’s prison would not be ostracizing and transgender prisonersarestatisticallysaferin thesefacilities(Rosenblum2000).

The Eighth Amendment requires thatprisonofficialstakeactiontoprotectthehealthand

safety of persons whiletheyareincarcerated. Estelle, 429U.S.97(1976); Farmer, 511U.S.825. Nearly one in six transgender persons report having been incarcerated intheirlifetime.In2016, the incarceration rate of transgender individuals was twice that of the general population. With significant percentages of this community being subject to the prison system, their continued victimization is unacceptable. Current policies are insufficient in securing protections for members of this group. The denial of life-saving gender confirmation surgery and their continued incarceration in facilities thataredemonstrablyunsafeisunconstitutional.Thecurrent system was not built with this group in mind and will continue to abuse and overlook this community unless their right to gender-affirming care, which may include gender confirmation surgery,andsafelivingfacilitiesbecomesjudicialprecedent.

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LYNCH V. DONNELLY (1984)CASESTUDY

byNatalieMcDermott

A week beforeChristmasDayin1980,Pawtucket,RhodeIslandcitizenDanielDonnelly —alongside other city residents, respondents, and theAmericanCivilLibertiesUnion—brought an action in Federal District Court against the city’s mayor, Dennis Lynch (Witte, Nichols, and Garnett 2022, 92). It was in response to the Christmas displaythatthecityerectedannuallyina high-visibility park ownedbyanonprofitorganizationinthecity’sshoppingdistrict.Itconsisted of a Santa Claus house, a decorated Christmas tree, reindeer pulling a sleigh, and a life-size Nativity scene beneath a banner that read “SEASONS GREETINGS.” The creche consisted of “traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals, all ranging in height from 5” to 5’” and cost the city $1,365 when purchased in 1973 (Lynch v Donnelly,3).Ittookuptenpercentofthedisplayspace,andmadeupfifteenpercentof the various figurines (Witte, Nichols, and Garnett 2022, 101). Donnelly and his colleagues believed that the inclusion of the creche, whichhadbeenatraditionsinceatleast1943,violated the Establishment Clause of the FirstAmendment,applicabletothestatesthroughincorporation in the Fourteenth Amendment. The District Court ruled in favor of the plaintiffs, and the Court ofAppealsaffirmedthisdecision.

However, in March 1984, the Supreme Court of the United States found that, notwithstanding the religious significance of the Nativity scene, Pawtucket had not violated the Establishment Clause. The city was allowed to continue displaying the creche, to the dismay of the plaintiffs who were seeking its omission from the display in the future. Chief Justice Burger delivered the opinion of the Court, which, in a 5-4 decision, upheld the constitutionality of what they deemed a “passive” creche display (Lynch, 11). Burger applies the Lemon Test – a framework for Establishment case analysis from Lemon v Kurtzman in 1971 – but maintains that “this Court has been unwilling to be confined to any single test or criterion” (669). Thus, his argument is three-pronged: that the creche display had a secular purpose, lacked a principle effect that promoted or inhibited religion, and did not foster excessive entanglement between government and religion. The most relevant contextual facts to Burger’s argument were the commercially secular purpose served by the display in the Christmas holiday and the similarity between the display’s supposed ceremonial deism and other widely-accepted instances of connection between church and state, like the inclusion of religious art in federally-funded museums and “In God We Trust” operating asanonsectarian mottoonUnitedStatescurrency(693,714).

The Burger Court defined Establishment in Lynch as “making adherence to a religion relevant in any way to a person’s standing in the political community” (687), repeatedly emphasizing the inevitability and necessity of “acknowledgement” to prevent the government from adopting “a stiltedindifferencetothereligiouslifeofthepeople”(714).AlthoughBurger insists this understanding of the Establishment Clause “comports with the contemporaneous understanding of the Framers’ intent,” (668), it liberally adopts specificity that is loosely derived from the Constitutional definition, “Congress shall make no law respecting an establishment of religion” (U.S. Const. amend. I). Notably, Lemon - which provided the test employedbyBurgerinhisopinion–hadadifferentdefinitionofEstablishment:“toprevent,as far as possible, the intrusion of either [the church or the state] into the precincts of the other” (Lemon, 614). Applying the Lemon Test without maintaining its definition of Establishment results in a significant blindspot in Burger’s majority opinion, as an individual or community

can still feel coerced intoaparticularreligionwithoutitpalpablyaffectingtheirstandinginthe political community Burger first defends the creche’s secular purpose, which the Court construed as “the Government’s acknowledgement of our religious heritage andgovernmental sponsorship of graphic manifestations of that heritage” (677). He references precedents set in Committee for Public Education & Religious Liberty v Nyquist (1973), which affirmed that “not every law thatconfersan‘indirect,’‘remote,’or‘incidental’benefitupon[religion]is,for that reason alone, constitutionally invalid” (Nyquist, 771). Nyquist, a case in which Burger himself concurred that all sections of Chapter 414 of New York’s Education and Tax Laws unconstitutionally favored Roman Catholic private schools, notably led the court toclaimthat “it has never been thought either possible or desirable to enforce a regime oftotalseparation” (760). Burger then straddles a trepidatious line between acknowledgement, accommodation, and favoritism as he deems the criticism of the creche highly hypocritical when compared to other permissible State-affiliated endeavors. He lists other tangentially-related examples, like “congressional and executive recognition of the origins of Christmas, or the exhibition of religious paintings in governmentally supported museums” (Lynch, 669). The only example that Burger gives credence to, beyond mentioning it in passing, was Marsh v Chambers, a 1983 case from the previous term in which the Court upheld the chaplaincy practice in Nebraska state government. He compares the level of “endorsement” ofreligionbythecreche in Lynch as equal to that of the legislative prayers approved in Marsh, and suggests that a ruling against Lynch would call into question the legitimacy of the opinion in Marsh (Lynch, 693)

Secondly, Burger argues that the central effect of the inclusion of the creche was secular, simply serving the purpose ofacknowledgingthepublicholiday.TheConstitutionwas not intended to “require complete separation of church and state; it affirmatively mandates accommodation,” he writes, and the creche, a “passive display,”wasanexampleofthiscaveat (673). The Court expresses concern that the omission ofthecrechefromtherestofthedisplay - which includes several clear references to the Christmas season - would be perceived as “callous indifference” to the religious practices of Pawtucket citizens (673). This reasoning, Burger insists, harkens back to the Court’s decision in Zorach v. Clauson in 1952, in which New York schools’ “released time” for offsite religious observance was deemedconstitutional in an act of considerable religious accommodation (Zorach, 315). Burger also references Justice Brennan’s concurring opinion in School District of Abington Township, Pennsylvania v. Schempp in 1963, that religious symbolism may “serve such wholly secular purposes as solemnizingpublicoccasions…inamannerthatsimplycouldnotbefullyservedinourculture if government were limited to purely nonreligious phrases” (Lynch, 717). Thus, Burger not only believes thatthecrecheisconstitutionallyacceptable,butalsocrucialtoaccommodatethe purpose of the Christmas display itself – even though he claims this purpose is nonsectarian. He calls back to Marsh prayers at the conclusion of this phase of the argument once again, saying that the creche’s “reason or effect merely happens to coincide or harmonize with the tenetsofsome…religions”(682).

Finally,theCourtbrieflyreconciledthat,whilethecreche’sdisplaydidcausesomelevel of governmententanglementwithreligion,itonlymanifestedinpoliticaldivisivenessthatwasa product of thepublicityofthecaseitself.BurgercriticizestheDistrictCourt’sassertionthatthis case involved excessive entanglement because “a litigant cannot, by the very act of commencing alawsuit…createtheappearanceofdivisivenessandthenexploititasevidenceof entanglement” (684-85). Furthermore,sincethereisnoevidenceofcommunicationbetweenthe

city council and local churches about the erection or purchase of the creche over forty years prior, he argues, it is incorrect to presume the affiliation of a specific church with this specific creche (684). Burger omits any argument directed at whether the creche was an instance of excessive entanglement with religion in general, rather than a particular type. Thus, he fails to disprovethegovernment’sendorsementoftheismasawhole. Ultimately, the majority opinion’s assessment of Lynch through Lemon was based on the principles of ceremonial deism and religious acknowledgement, which permeated through all three prongs of the Lemon Test. Burger, and O’Connor in her concurrence, emphasize that the United States’ religiousorigins,describedinintentionallyvagueterms,areanindeliblepart of patriotic spirit - and omitting the creche would elicit “callous indifference” toward that history(673).

Justice O’Connor wrote a concurring opinion in which she agreed with the result of Burger’s opinion, but not the method he employed to arrive there, the Lemon Test. She expresses her concern that “it has never been entirely clear… how the three parts of the test relate to the principles enshrined in the Establishment Clause,” instead choosing to only consider “institutional entanglement and… endorsementordisapprovalofreligion”(688).Also, Justice Brennan wrote a dissentingopinionthatwasjoinedbyJusticesMarshall,Blackmun,and Stevens. Ardently critical of both the Lemon Test itself and itsapplicationbyBurger,heclaims that Lynch fails two of its prongs. Brennan writes that both the secular purpose and effect “are fully served by the elaborate [decorations]... that are already a part of Pawtucket’s annual Christmas display,” and theinclusionofthecrechemovesthedisplayfromacknowledgementto endorsement (699-700). While Burger claims that the creche’s secularity is evidenced by the commercialism of the holiday display, Brennan rebuts that “unlike every other element of [the display]... the creche reflects a sectarian exclusivity thattheavowedpurposesofcelebratingthe holiday season and promoting retail commerce simply do not encompass” (700). At the end of hisopinion,BrennanconcedesthatBurgerwascorrectincallingthecrecheathreattoexcessive entanglement, without actually qualifying it as such. He warns that the decision in Lynch mightresultincivilunrestandfurtherpoliticaldivisioninPawtucket(703). My view on Lynch almost entirely aligns with Brennan’s dissent, as I find the majority decision to be dishearteningly weak. Firstly, the method itself was deeply flawed; while I think that Lemon provides useful guardrails for the difficult analysis of the Religion Clauses, strict adherence to it did a disfavor to this specific case. As Brennanpointsout,“theCourt’sdecision implicitly leaves open questions concerning the constitutionality of the publicdisplayonpublic property of acrechestandingalone,orthepublicdisplayorotherdistinctivelyreligioussymbols such as a cross” (695). Furthermore, in defending its supposedly secular purpose, Burger continuously draws false connections, like between the creche and “the exhibition of religious paintings in governmentally supported museums” and ceremonial prayer in governmental settings (669). These are false equivalencies, as there are distinct secular, even educational, benefits to studying historical religious art orfollowingalong-heldtraditionthatarenotpresent in the creche display, which is solely reflective of specific sectarian roots and scripturewithout palpable scholarly merit.Also,Burgeroftenrelates Lynch to Marsh,whenthemethodsandfacts of these cases were quite different. For instance, theLemonTestwasnotevenappliedto Marsh – the dissenting opinion claimed it would have violated all three prongs, if it had been(Marsh, 797). Lynch lacked the rich, well-documented history of the Nebraskan government’s chaplaincy, which predated its very statehood and was widely understood to be purely ceremonial through “rote repetition” (Lynch, 716). Additionally, on a morepersonalnote,Ifind

these comparisons to be offensive asanindividualforwhomthecrecheholdsdeepsignificance. Reducing it to an image as secular as the other highly-commercialized or otherwise vapid elements of the display does not accommodate religion, but obstructs it. This effect also plays out in Burger’s weak designation of the creche as central to American history, which I agree with Brennan is “insulting to those who insist for religious or personal reasons thatthestoryof Christ is in no sense a part of ‘history’ nor an unavoidable element of our national ‘heritage’” (712). The only point that I disagree with both the majority and dissenting opinions on is their claim to appropriate disentanglement of church and state. Although there was no particular affiliation between a specific church and the town of Pawtucket, the fact that religious symbolism of any kind was displayed suggests preference of theism over atheism by the city. Ultimately, I can understand how ceremonial deism can operate secularly in United States government – but the creche, in the context of Lynch and the Lemon Test, does not qualify as such.

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