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POST WRITTEN BY: Marlon J.W. Bryan (J.D. ’16), Pace Law School

MBryanImageHuman Rights Watch recently commented on the disappointing state of human rights in Haiti. The country’s former President Jean-Claude Duvalier died on October 4, 2014, without ever being tried for the human rights violations that occurred during his ruthless fifteen years in power. Duvalier’s death without trial is an unfortunate failure to investigate and prosecute the human rights violations that took place during his presidency.

Haiti has a unique and rich history. In 1804, the world shook when a slave rebellion defeated Napoleon’s forces and made Haiti the first independent Black nation in the Western Hemisphere. However, Haiti’s rich history has been blighted by poverty, catastrophe and repression. In 1971, Jean-Claude Duvalier, succeeded his father as Haiti’s president. In his fifteen-year reign, “Baby-Doc” Duvalier oversaw a regime of corruption and mass human rights violations. His abuses included, repressing political dissidents and journalists, torture, disappearances, and extrajudicial killings. Most infamous of these abuses were inflicted by his secret police force, the MSVN (Militia of National Security Volunteers). In 1986, Duvalier fled the island after being overthrown in a coup d’état.

In 2011, Duvalier returned to Haiti after 25 years in exile. Human Rights Watch issued a report stating that Duvalier could be liable under international law for his direct command over the security apparatus that engaged in repressive acts. Moreover, there was evidence that Duvalier would have been liable for crimes by subordinates acting on his direct orders. Initially, a Haitian court found that the statute of limitations barred Duvalier from standing trial. However, in 2013 an appeals court overturned the ruling and ordered the testimony of Duvalier and former members of his government. In February of this year, the charges against Duvalier were reinstated with the court finding that statutes of limitation are never applicable in cases involving human rights violations. At the time of Mr. Duvalier’s death, the investigation had resumed. Had Duvalier gone on trial, it would have been a monumental opportunity for closure and reckoning. In life, Jean-Claude Duvalier was a ruthless and corrupt dictator who lived on graft and excess. In death, his supporters remember him as a symbol of a strong and stable Haiti; to his victims he is a painful scar that will never heal.

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The Convention on the Rights of the Child (“CRC”) is 25 years old. Which means,  for 25 years the United States has failed to ratify the treaty, which has become the most ratified human rights treaty in history. In fact, only three countries have failed to ratify the CRC: Somalia, South Sudan and the United States.

The treaty was created out of the belief that children are acutely vulnerable to exploitation and abuse and therefore deserve special protection. The CRC has promoted the best interests of children globally through law and regulation, protecting them from discrimination and abuse and ensuring their right to develop and be heard.

The United States helped lead the drafting of the CRC by contributing provisions to the convention in its final form. Likewise, the treaty incorporates numerous elements of U.S. law and practices.

However, the United States’ failure to ratify the treaty has allowed the U.S. avoids a commitment under international law. The treaty prescribes modest, time-test measures to facilitate the goals of protecting children. These goals require signatory states submit a report within two years of ratification and every five years thereafter to an 18-person committee of human rights experts. The committee then makes non-binding recommendations regarding steps that countries should take to fulfill their obligations. The reports are public in order to make states accountable to their democratic institutions and to the world.

There is a view among U.S. lawmakers that ratification would allow children to sue their parents. However, the treaty contains no such provision and leaves that issue to the discretion of ratifying states. Further, the United States’ failure to ratify suggests an underlying American view that human rights conventions will somehow erode U.S. sovereignty and federalism. This concern is false, considering that the United States has ratified numerous other human rights treaties, including those that protect against torture, discrimination, and genocide. Further, the CRC allows a country to ratify the treaty with reservations, therefore, if the United States fundamentally disagreed with certain aspects of the treaty, they could ratify without being bound.

Even though the U.S. has been a leader on many children’s rights issues, including child labor, problems still persist. Specifically, the United States has been dealing with the influx of unaccompanied minors at the border that are denied due process and the right to counsel in immigration hearings. There are still fourteen states that have no minimum age for trying children as adults, and some of those states still impose life sentences.

The current administration has stated their desire to ratify the CRC. Meanwhile, recent Supreme Court cases have brought American law closer to full compliance with the CRC. However, the United States is currently not subject to the transparent practices required under the CRC. Do you think the United States should ratify the CRC? Is the perceived threat to sovereignty unfounded? Further, what risk is posed to the United States if they subject themselves to self reporting under the treaty? Even if American law complies with the treaty, do you believe that ratification would renew the worlds focus on children’s rights?

Sources: Al Jazeera ; CRC Text; UN; HuffPo

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ADIZ Blog

Approximately one year ago, China declared to the international community they had established an Air Defense Identification Zone (ADIZ) in the East China Sea. An ADIZ is an extended territorial airspace where a declaring state has the authority to identify any approaching aircrafts before they are permitted to enter into the state’s airspace. Also, in some circumstances, the declaring state can intercept some aircrafts for interrogation if the aircraft is believed to pose a threat.

The fundamental purpose of ADIZs are simply to protect a state’s national security interests. Prior to China’s announcement last year, a number of other nations also adopted ADIZs including the U.S., Japan, and Canada. The authority for a state to establish an ADIZ is recognized under customary international law. It’s founded on the principal that every state has the right to create its own security measures.

Due to the ongoing tensions between China and other South East Asia countries, specifically Vietnam and the Philippines, it didn’t come as a surprise to many nations that China established its own ADIZ. However, it did raise a significant amount of criticism and controversy. Many ASEAN countries, including Vietnam and the Philippines, have perceived China’s actions as aggressive and proactive, while also questioning its authority to establish an ADIZ.

What’s more, China has recently indicated its intention to establish a second ADIZ in the East Sea. If China was to set up a second ADIZ in the East Sea, it would stretch over the airspace of the Vietnam’s archipelago, Hoang Sa. Additionally, the ADIZ would overlap with Japan’s established ADIZ. This would most likely create confusion for aircrafts that receive conflicting instructions from both nations.

The possibility that China may establish a second ADIZ has expanded the concerns of ASEAN countries to across the international community. In March 2014, at an International Civil Aviation Organization (ICAO) Council held in Montreal, the United States and Japan expressed their opposition to the proposal and found that the ADIZ would be contrary to international law. The U.S. and Japan contend that China would be extending its territorial limits too far. “The United States and Japan submitted that China’s ADIZ contravenes the principle of ‘freedom of overflight’ in high seas as codified in Article 87 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).”

Do you think that China would be overstepping its jurisdictional authority if it establishes a second ADIZ? Or do you think that an establishment of a second ADIZ is a reasonable precautionary measure?

Sources:
Experts Worry Over the Possibility of China Setting up ADIZ in East Sea, Tuoitrenews, The News Gateway of Vietnam, November 19, 2014.

Jaemin Lee, China’s Declaration of an Air Defense Identification Zone in the East China Sea: Implications for Public International Law, American Society of International Law, August 19, 2014.

David A. Welch, What’s an ADIZ? Why the United States, Japan, and China Get it Wrong, Foreign Affairs, December 9, 2013.

POST WRITTEN BY: Frank Noriega (J.D. ’15), Pace Law School

Saturday, November 1, 2014 is dark day for human rights activists everywhere. At dawn, Reyhaneh Jabbari, a 26 year old Iranian woman, was executed by hanging in Tehran despite a public outcry from around the world. This outcry included statements from both Amnesty International and the United Nations condemning the execution. She was convicted of killing a man, a man she claimed to have stabbed in self-defense when he attempted to rape her. The United Nations and the European Union questioned this conviction and believed that Reyhaneh Jabbari should have been retried. She had confessed to the crime only after being intensely pressured and threatened by Iranian prosecutors. She had spent the prior 7 years in prison awaiting her execution.

According to Amnesty International’s 2013 report on Death Sentences and Executions, there were 778 executions reported worldwide in 2013. Iran carried out at least 369 executions in 2013, nearly half of all reported executions. By comparison, the United States, a country roughly four times larger in population, executed 80 people in 2013. Shockingly, it is estimated that the total number of executions in Iran for 2014 will far exceed that of 2013. A UN report stated that at least 852 executions have been carried out in Iran between June 2013 and June 2014. The report also noted that some of these executions were carried out on people who had committed crimes as minors under the age of 18. Reyhaneh Jabbari, although not a minor when she was arrested in 2007, was sentenced to death at the age of 18.

These figures represent only the publicly reported executions. Many executions are carried out in secrecy, in which the government denies the accused a fair trial, a trial meeting minimal standards of due process. Even Reyhaneh Jabbari was held for over two months without counsel or being permitted to communicate with her family. If such a gross disregard of human life can be committed by Iran in the public spotlight, imagine what else is going on.

As if this atrocity act was not despicable enough, Mohammad Javad Larijani, chief of human rights in Iran’s government, stated to the UN Human Rights Council that Western media was to blame for her execution. In Iran, it is up to the victim’s family to pardon the death sentence. Because the media accused Reyhaneh Jabbari’s assailant of rape, to pardon the accused would bring shame to the family.

A system that holds the value of human life lower than the pride of a family is horrendous. Iran must take the decision as to who lives or dies out of the hands of the emotionally reactive family of the deceased and put in back on the scales of justice. Further laws should be enacted to limit if not abolish the use of the death penalty. It is atrocious that a county that contains 1% of the world’s population is responsible for nearly half of the reported executions worldwide. The world community will not stand for this, as is apparent from the public outcry following this recent execution.

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November 19 is not just another day—it is also “World Toilet Day.” This Day is to raise awareness about all the people who do not have access to something we seem to take for granted on a daily basis, toilets. World Toilet Day was founded on November 19, 2001, by the World Toilet Organization (WTO). The WTO is a global non-profit organization founded by Jack Sim, and it is committed to improving worldwide toilet and sanitation conditions.

According to United Nations Secretary-General Ban Ki-moon, one out of every three women worldwide lack access to safe toilets. This means these women have to defecate in the open, which puts them at risk of assault and rape, simply because they lack the proper sanitation facilities. Furthermore, open defecation also puts people, especially children, in danger of deadly fecal-oral diseases such as diarrhea. According to the UN, more than 340,000 children under the age of five died from diarrhea diseases in 2013 due to a lack of safe water, sanitation and just basic hygiene.

While this issue affects people of all ages and genders, women and children in particular are especially at risk for the reasons listed above. Furthermore, although it is the poorer communities who suffer from a lack of sanitary toilet facilities, everyone still suffers from the contaminating effects of open defecation. Therefore, there is a heightened sense of urgency in addressing this global problem.

According to the UN, “[e]ight-two per cent of the 1 billion people practicing open defecation live in just 10 countries.” These countries include: India, Indonesia, Pakistan, and China—just to name a few. These countries also account for a large part of the world’s population, so without immediate proper action, a large portion of our world’s population could potentially be at risk of the dangers of these contaminating effects.

It is undisputed that we have a right to access clean water and sanitation. So does the fact that some countries lack proper toilet facilities rise to a level that constitute a human rights violation? Should these countries be penalized for their failure to provide these necessary facilities, which in essence, is the cause of the spread of deadly diseases such as diarrhea?

Sources: UN News Center; UN World Toilet Day; World Toilet Organisation.

stop-gendercide

She is crying. I hear a regular and booming heartbeat, accompanied by the sound of her breathing. There are ten fingers, ten toes and a head full of hair. I am grateful.  These are the thoughts that every parent should think when they are handed their baby girl for the very first time. Unfortunately, not every baby girl is exposed to this kind of love and affection when she is first born. For many baby girls, the sentence “it’s a girl” can be more like a death sentence.

Gendercide is “defined as the systematic elimination of a gender,” generally due to cultural reasons. These reasons can include “a social preference for male, financial strains, or superstition.” For example, in India, parents have gone to great lengths to ensure they do not have a girl. It has been reported that 5 million female fetuses are aborted each year. Devastatingly, 1.5 million baby girls are killed by their first birthdays; they are thrown into rivers, strangled, left in garbage dumps or killed at birth. There are 37 million more men in China than there are women. The U.N. roughly estimates that between 113 million and 200 million women are demographically “missing” in the world today because of gendercide.

What solutions are there to end the practice of killing baby girls? Recently, Great Britain voted to ban sex-selective abortions. NGOS, like Invisible Girl Project, have created help centers and shelters to provide food, medical aid and protection to young girls who are at risk of being abandoned or killed. Although these solutions seem like small steps towards ending this vicious cycle, what legal solutions are there?

Does this constitute a human rights violation that the international community can interfere with the sovereign rights of countries like India or China? What if an end was put to the “1-child policy?” Would this change the public’s mind and social norms or has the damage already been done?

Sources: The United Nations Report: Take Action to End Impunity for Violence Against Women an GirlsSevenly: The Invisible Girl Project; CNNImage Source

Under Brazil’s Corporation Act, insiders include “corporation officers, directors, or controlling shareholders, but virtually anyone may be subject to the prohibition, as long as he/she possesses information and, knowing it has not yet been made public.” The Act also states that insider trading occurs when “anyone with any information not yet revealed to the public, which he obtained directly or indirectly and which may significantly affect the quotation of securities, and that they may not make use of such information to obtain any advantages for himself or for third parties by purchasing or selling securities.”

Only a fraction of suspicious trades are investigated and because Brazil’s prosecutors lack the employees and technology to pursue the cases. In Brazil, no one ever goes to jail for insider trading … until now.

Eike Batista, one of Brazil’s richest men, is facing accusations of insider trading and stock market manipulation. If convicted, Batista will be the first person in Brazil to serve time for this crime. In October 2012, Batista promised to inject $1 billion into the petroleum company he founded, OGX, if management requested it. This pledge caused a temporary increase in the company’s stock. In May 2012, he began to sell millions of his shares. A few months later, the company acknowledged that key petroleum fields were economically unviable. When management requested the $1 billion he promised, Batista refused. As a result, OGX defaulted on $5.8 billion and filed for bankruptcy, causing creditors and shareholders to lose billions. Prosecutors accuse Batista of trading the OGX stock with insider knowledge about key petroleum fields’ lack of economic viability.

Insider trading is harmful to the economy because it makes investors reluctant to invest in the stock market since they believe they do not have an equal chance to make a profit. When investors are driven from the market, the market becomes less liquid and less able to fuel expanding capital demands.

I think Brazil is sending the right message in prosecuting Batista. This prosecution comes at a time where the country is seeking to restore confidence in the country’s institutions. Punishing a high-profile person sends the message that this conduct will no longer be tolerated.   Although I get the impression that they are simply using him as a scapegoat, other corporate officers and directors will think twice before engaging in insider trading, knowing that the government is no longer sitting back and tolerating this conduct. I hope that Brazil continues its efforts to prosecute those who engage in insider trading.

Do you think that Brazil is prosecuting Batista out of a genuine effort to decrease the amount of insider trading in Brazil or do you think it is using him as a scapegoat?  What should Brazil do to improve its insider trading prosecutions? Do you see a connection between insider trading convictions and economic conditions in countries around the world, including the United States?

Sources: Bloomberg, New York Times, Macrothink Institute

Picture: Telegraph UK

Like a Virgin…

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Recently, Human Rights Watch reports that female applicants have to undergo “virginity tests” for Indonesia’s National Police force.  However, this is not a new practice and is not unique to Indonesia. The “virginity test” have been a part of the application for women to enter the police force since women were first allowed to join the work force. The so-called virginity test is listed as mandatory for all female recruits under a mandatory obstetrics and gynecology examination. The tests are conducted under the Chief Police Regulation on Health Inspection Guidelines for Police Candidates. The test is given early in the recruitment process as part of the physical exam. They are primarily tested in police-operated hospitals and  includes a check to make sure the hymen is still intact. The “two-finger test”  is an invasive and physically intrusive test to make sure the applicants are virgins. These test are also conducted in Egypt, India, and Afghanistan. Many Human Rights activist have called for  the abolishment of these “virginity test” as discriminatory and unscientific.

The test has been internationally recognized as human rights violations under the “cruel, inhuman, and degrading treatment” provision under article 7 of the International Covenant on Civil and Political Rights. Article 7 also applies to the mental suffering of the victim. Many of the women have reported feeling humiliated, stressed, and degraded. These practices obviously need to be stopped. The virginity of a potential police officer has no bearing on their abilities. In 2012,  a memo from a senior National Police official stated it was a necessity to inspect female candidates’ hymens to ensure their virginity.  The test is so widespread that there are books and videos encouraging women to take the test and advising them on what to do when you “fail” the test. These coerced and forced test violate these women’s physical and mental integrity.

What is the rationale for these “virginity test” and should it be required?

How can the international community help these women avoid the “virginity test”?

Source: http://www.hrw.org/news/2014/11/17/indonesia-virginity-tests-female-police; http://time.com/3591439/indonesia-sexual-assault-virginity-tests-police/

image: http://time.com/3591439/indonesia-sexual-assault-virginity-tests-police/

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On the margins of the G20 Summit in Brisbane, Australia, leaders met to discuss pressing issues. The conversations were centered around the Ebola outbreak, combating Iraq, climate change and of course the Ukraine crisis. Even though the invasion of Ukraine was not officially discussed, many leaders subjected President Putin to private criticism and asked that he would get out of the country.

The G20 Summit events were market by the following powerful and telling words. Prime Minister Tony Abbott of Australia and Prime Minister Stephen Harper of Canada, told Putin, “I guess I’ll shake your hand, but I have only one thing to say to you: You need to get out of Ukraine.” The consensus reached by all G20 leaders is that Russia’s actions in Ukraine have dire effects on the country and destabilize it.

The Secretary-General himself explained that these actions have effects reaching far beyond the region, and the situation calls for political, rather than military solution. Even though Russian officials denied that they’re supplying men and materials to rebels who have carved out people’s republics in eastern Ukraine, the international community treats this information as a fact. During the Summit, all members expressed their concern and disagreement with the current situation. Unfortunately these efforts have not been particularly fruitful.

During the news conference in Brisbane, Prime Minister David Cameron of Britain also condemned Mr. Putin’s actions, saying the Russian leader was at a crossroads. “If he continues to destabilize Ukraine, there’ll be further sanctions, further measures, and there will be a completely different relationship between European countries and America on the one hand, and Russia on the other.”

President Obama described his conversation with President Putin as “blunt and businesslike” as usual. On the other hand, what matters is that Mr. Putin was shown u “real unity of purpose” between the U.S. and Europe over Ukraine. Putin ended up leaving the conference early; many believe that he did so due to the controversy and criticism he received, even though Mr. Putin himself explained that the sole reason for his early departure was the inconvenience of a long flight ahead.

Do you believe that the Summit will have some profound effect on Mr. Putin’s decisions in regards to Ukraine? What actions should be taken to resolve this issue? Is there some justification for Russia’s actions?

Sources: UN News CenterBloomberg NewsNY Times

 

military court

On October 27, Egyptian President Abdel Fattah al-Sisi put forth a law that extensively furthered the scope of matters that can be handled by Egyptian military courts.  The new decree, Law 136 of 2014 for the Securing and Protection of Public and Vital Facilities, states that the military “shall offer assistance to the police and fully coordinate with them in securing and protecting public and vital facilities.”  Even more disturbing is that this incorporates electricity stations, gas pipelines, oil wells, railroads, road networks, bridges, and any other state-owned property. Finally, Law 136 specifically these public facilities under military jurisdiction for the next two years and conditions that all state prosecutors are to pass on any crimes committed at any of these places to the military.

Military judges have presided over trials of civilians in Egypt for decades, despite efforts by activists and some politicians to eliminate the practice. Dissenters fear that this new law will exponentially increase the amount of civilian protestors and government opponents being tried by military tribunals. Egypt’s military courts, which already had questionable respect for due process guarantees displayed by normal courts, have heard over 11,000 cases involving civilians since the 2011 uprising. Sarah Leah Whitson, Human Rights Watch Middle East and North Africa director, was not afraid to voice her opinion on the matter. She stated, “This law represents another nail in the coffin of justice in Egypt. Its absurdly broad provisions mean that many more civilians who engage in protests can now expect to face trial before uniformed judges subject to the orders of their military superiors.” Before Law 136, Egypt’s constitution and code of military justice theoretically limited military courts to cases that directly affected the armed forces, though for the last three decades, the president was allowed to refer civilians to the tribunals.

To put in this in perspective, I ask you to imagine if a similar situation ever arose in the United States. Many people take our constitutional guarantees for granted such as the right to free speech. We enjoy the protection of a judicial system in which every court, judge, and attorney must respect our constitutional rights no matter how much we may protest or dislike governmental actions. The Egyptian decree and its ramifications leave Egyptian civilians with basically no method of fighting back against a government that is constantly abusing their basic human rights. Law 136 can be seen as “scare tactic” to deter citizens from opposing governmental action and this decree has no place in international law.

How can civilians bring any matter into court that speaks negatively about Egyptian governmental actions if they have to fear being placed in front of a military tribunal? Can the international community, including international courts, provide these civilians with even a scintilla of justice?

Sources: Human Rights Watch, Ahram Online, Aswat Masriya.

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