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Imagine if you woke up one day and were unable to find your loved one because they spoke out against the government, a prominent drug lord, or simply were at the wrong place at the wrong time. What if you knew that they were detained for years on end, but their whereabouts and fate were unknown? What would you do? Enforced disappearances are still an appalling reality in many countries around the world. For example, did you know that in Mexico more than 26,000 people have been reported missing or in disappearance between 2006 and 2012? That 25,000 people have been reported missing in Colombia? That thousands of suspected opponents of the Syrian government had been arbitrarily arrested and detained since February of 2011?

Enforced disappearance is a recent concept made famous by past and recent Latin American regimes. The United Nations General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearances in December of 2006. It was only then that the crime of enforced disappearances was defined and expressly prohibited as “… the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting, with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty of by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” Some experts consider this to be the strongest human rights treaties ever adopted by the United Nations. So, what is the big problem here? Why is it so hard to get states to ratify this Convention?

The international community seems to be silent on this particular legal issue. Why? Most likely because most countries are involved in committing such an atrocious crime. States must take full responsibility to solve all aspects of this issue. To get states to take full responsibility, victims must start speaking up and raising awareness. We must simultaneously raise awareness to stop enforced disappearances by bringing in the peace negotiators, developing political will, and involving the media. To stop the violence, we must break the silence.


The United Nations General Assembly’s human rights committees has presented a groundbreaking draft resolution recommending the U.N. Security Council inquire into North Korea’s human rights and refer the country to the International Criminal Court. The draft resolution has been championed by the European Union and Japan and has been circulated to a small group of like-minded countries. Since North Korea is not among the 122 signatories to the Rome Statute, only the Security Council could refer it to the International Criminal Court.

The draft resolution, and call for punitive action, stems from a 372-page U.N. Commission of Inquiry report, published in February, which detailed wide-ranging abuses in North Korea. These abuses in clued the use of prison camps, systematic torture, starvation and killings comparable to Nazi-era atrocities. The International Criminal Court, under the Rome Statute, has jurisdiction over war crimes like genocide and other crimes against humanity; the crimes purported to be occurring in North Korea.

However, referral to the International Criminal Court for punitive action is not without major obstacle. China, North Korea’s most powerful ally, would likely use its veto power as a permanent Security Council member to oppose recommendation.

Despite the protection of China’s veto, North Korea has acknowledged that the focus on their human rights issues and purported crimes against humanity will not subside. North Korea has gone on the offensive, attempting to charm their way out of the human rights limelight. In recent weeks, North Korea has offered a string of surprises, including the release of U.S. detainee Jeffrey Fowle, who was taken into custody have allegedly leaving a bible in a night club. Likewise, North Korea recently provided U.N. Diplomats with a draft resolution, saying that they are being targeted unfairly and that the U.N. should perform and unbiased reassessment of the situation in their nation.

It certainly is a good thing that the United Nations, and potentially the International Criminal Court, are noting the human rights crises in North Korea. However, it seems the international legal system faces an uphill battle to hold North Korea responsible for their actions. Do you think there should be a way for the International Criminal Court to hear the case aside from Security Council recommendation? What about sanctions directly responding to the human rights violations, as opposed to simply targeting the nuclear programs?


Sources: ICC Report; U.N. Report; Reuters; Japan Times

132148 600 Appel Ireland cartoons










Last week, Ireland’s Finance Minister, Michael Noonan, announced plans to close the “Double Irish” tax loophole to implement a new tax scheme dubbed the “Knowledge Development Box.” Large tech companies such as Apple, Microsoft, and Adobe Systems have been using Ireland to transfer profits in order to virtually pay no taxes along the way.  It seems Ireland has finally succumbed to the complaints and criticisms voiced by the United States and European Union. There has been much international anger in the past few years about corporate tax avoidance, prompting EU investigations into tax deals between member states and big companies.

The “Double Irish” loophole allowed a tax resident in Ireland to be exempt from paying taxes because their central management and control was outside the country. It consisted of setting up two Irish subsidiaries. One subsidiary would collect profits and pay large, tax deductible fees to the second Irish-registered company. This second Irish-registered company would then have its headquarters in a Caribbean country which levied no corporate tax (such as Bermuda). There is also a rule in the United States where the Internal Revenue Service ignores transactions between subsidiaries of groups that are registered in the same country. Therefore, much of the profits of the second Irish-registered but Irish tax non-resident company escape taxation. Starting January 1, 2015 no company will be allowed to set up a Double Irish tax scheme. For those already in one, they must phase out of it by 2020.

The new planned tax scheme dubbed “Knowledge Development Box” is linked to the exploitation of patents that will attract lower tax rates.  Other countries such as Britain and The Netherlands implement a similar tax scheme which applies very low tax rates. This setup would allow tech companies to pay a small percentage in taxes when they license intellectual property to Irish subsidiaries. The government said it was considering a rate of 6.25 percent. Under this arrangement, the effects of “transfer pricing” would be reduced but not entirely eliminated. While this arrangement is better than a zero percent rate, it is still considered a very low tax rate.

I think that Ireland is making the right move by getting rid of its old tax scheme. Although these tax schemes are great for the companies, the United States is losing billions of dollars of taxable income from foreign profits. In a time of economic recovery, the United States and especially countries in the European Union can use this vital income. Although I think the new tax scheme is not a drastic improvement, it is a step in the right direction. In the long run, with a purported 6.25% tax rate under the new plan, billions of dollars from tech giants such as Google will be taxable. Also, the new tax scheme will still allow Ireland to continue to compete for international investment instead of losing all of its investors.

Although it is an improvement in Ireland’s tax structure, do you think it is enough? Do you think the change in Ireland’s tax scheme will drive these major companies away from the country and cause Ireland to lose international investments? Should we leave tech companies such as Google and Apple alone and applaud them for being so tax savvy?

Sources: Reuters, Arstechnia, LA Times

Photo: Cagle


No reason for alarm . . . but a global conflict has erupted, and the struggle continues every day.  The combatants may be all around us, and they could strike at any moment, advancing their agenda and upending the world order and the nature of armed conflict before our very eyes.

No, I’m not a conspiracy theorist.  And no, this isn’t another blog post about The War on Terror.  But the threat posed by world conflict in cyberspace, though often understated, is very real.  The understatement largely results because links to state sanction for cyber-attacks are often tenuous.  Take, for example, Russian cyberattacks against Ukraine, the destruction of Iranian nuclear centrifuges, purportedly by the US/Israeli worm Stuxnet, or the “spear-phishing” attacks allegedly perpetrated by PLA Unit 61398.  At the Atlantic Council’s Brent Scowcroft Center on International Security earlier this month, General Wesley S. Clark (Ret.) has identified that such conflict now occurs continuously.  ”We’re doing it all of the time. So is everybody else; because, I hate to say this, you can’t wait [until] the next war to discover what the enemy’s cyber vulnerabilities are and what his nodes are.”

Clark’s warning belies a serious problem with the pervasiveness of cyber warfare:  There are few, if any, established rules.  On October 17 at the Vertex Innovation Forum on Cyber Security and Financial Technology held in Singapore, Professor Isaac Ben-Israel noted that the Geneva Conventions govern wars between states or armed conflict, rules governing conflict in the online space are nonexistent.  The closest document that yet exists with regards to the subject is the Talinn Manual on the International Law of Cyber Warfare, published in 2013 at the invitation of the NATO Cooperative Cyber Defence Centre of Excellence in Tallinn, Estonia.  Unfortunately, the Tallinn Manual has not yet achieved any widespread acceptance, and attacks both during and outside of “official” conflicts occur with great frequency.

At a SimLab conference and simulation in Tel Aviv last year, General Clark noted that when it comes to fighting a successful cyberwar, “You have to know in advance who has the capacity, who’s been practicing this against you.”   Thus, a justification for preemption may be part of any adopted rules on the law of cyberwar.  The Tallinn Manual asserts in Rule 15 that “[t]he right to use force in self-defence arises if a cyber armed attack occurs or is imminent” subject, of course, to an immediacy requirement.  The issue, of course, is that imminence and immediacy are difficult to prove in cyberspace.  A preemptive strike against an enemy cyber-target might be misplaced . . . or worse, could lead to a “non-virtual” conflict that quickly spirals out of control.

To what extent do you believe it is important to codify the laws of cyberwar?  Should preemptive strikes in cyber-warfare be permissible?

Related Readings:

Andrew Jerell Jones, “Russian Interest in Ukraine Now Includes Cyber Warfare,” The Intercept (October 17, 2014).

Michael B Kelley, “The Stuxnet Attack On Iran’s Nuclear Plant Was ‘Far More Dangerous’ Than Previously Thought,” Business Insider (November 20, 2013).

T.P., “Chinese cyber-attacks: Hello, Unit 61398,” The Economist (February 19, 2013)

Atlantic Council, “Don’t Wait for the Next War: A Discussion on Strategy with General Wesley K. Clark, USA (Ret.).”

Molly Bernhart Walker, “Cyberwarfare underway ‘all of the time,’ says former NATO supreme allied commander,” FierceGovernmentIT (October 13, 2014).

Kevin Kwang, “Cyber warfare needs a ‘Geneva Convention’: Israel’s Space Agency Chairman,” Channel NewsAsia (October 17, 2014).

Tallinn Manual on the International Law Applicable to Cyber Warfare (Michael N. Schmitt, ed. 2013).

NATO Cooperative Cyber Defence Centre for Excellence (CCDCOE), www.ccdcoe.org.

Youtube, “Wesley Clark on Cyber Warfare” (November 17, 2013).


“Don’t like the way your government functions? Well maybe you don’t belong in this country then.” The Kuwaiti government took this extremist approach, when it decided to strip its critics and opponents of citizenship. Regardless of the disapproval of the international community, Kuwait announced third batch of citizenship revocations this year. It seems that the government struggles to avoid criticism and tries to do anything to avoid public display of resistance. The goal is simply to deter dissent by using nationality law as a shield. This technique shall also serve to intimidate and prevent dissenters from voicing their views.

Under Article 13 of the nationality law, authorities can strip individuals and dependents of their Kuwaiti citizenship on several grounds. For example, if it “involves the higher interests of the state or its foreign security,” or the authorities consider that the individual has “promoted principles that will undermine the social or economic system of the country.”  Part of the issue is that there is no way to appeal this decision, which leave the individuals practically “stateless.”  In many circumstances, international law requires the government to provide these individuals with rights to residence, but Kuwait is not very fond of this notion.

According to the Human Rights Watch, there are no legitimate reasons for stripping Kuwaiti nationals of their citizenship. There is no legitimate evidence that would suggest that the government is acting in accordance with the laws. It is also important to note, that many of these citizens are high profile individuals. One of them is Al-Shammari, who had owned the independent Al-Yom television station and Al-Yom newspaper. Another is Nabil al-Awadhi, a conservative cleric widely known for his TV talk shows. Interestingly enough, it is not only the public figure, but also the family that often ends up losing citizenship. Some of the most frequent reasons the government provides in justification of its actions are “a threat to foreign security,” or “undermining the country’s interest.”

The 2013 UN report made clear, that stripping an individual of his citizenship could only be done for “rendering of services to a foreign government or military force” or committing acts “seriously prejudicial to the vital interests of the State.” It is never justified as means for silencing free speech in violation of human rights. Furthermore, all revocation decisions must be subject to administrative or judicial review. What solutions would you propose for solving this issue? Should a government have the power to strip someone of his citizenship? If so, under what conditions?

Sources: Human Rights WatchABC News


In 2011 and 2012, the world’s leading foreign law firms began to create offices in South Korea. This highly tactical move was met with varying levels of intrigue. Some critics said there were concerns that there wasn’t enough work to go around, yet others championed the possibilities of success.

Despite this bifurcated assessment of the legal profit possibilities in South Korea, international firms continue to take an interest in Seoul. Skadden Arps Slate Meagher & Flom is the 19th firm to open in the country, and the most recent. Currently, most firms have been devising plans on  how to corner the market pertaining to overseas litigation. Areas of applicable law include outbound M&A, international capital markets, nationalization of transient workers, and Korean corporate compliance. These legal teams usually start with three and ten lawyers and then grow according to need. Pursuant to recent regulations, these foreign firms are also permitted to co-bill and share profit-pools with local firms on a project-by-project basis. The current question in the legal world  is whether these mega-firms are turning a profit with their Korean ventures and what challenges persist as competition with other firms continues.

“It is hard to generalize on how firms are doing,” says Yong Guk Lee, the chief representative for Cleary in Seoul. “We had a Korean practice based in Hong Kong for more than 20 years and are continuing in Seoul with what we’ve always done. That’s probably true for a handful of firms - they are carrying on doing what they used to do out of Hong Kong. There are others that have a more niche practice, and those that are either brand new players in the market or trying to expand beyond their traditional practice areas.

For a greater set of firms, the reality seems to be that the Seoul branch is not a solitary profit growth center and serves as more of a networking base for new clients and new business prospects for other connected offices. Another problem these firms are having is finding Koreans, either to run or staff offices. A partner at a firm based in the United Kingdom says the Korean employment issue is unlikely to change: “The difficulty in Korea is that it will be hard to make any inroads into the market unless you’ve got a team of Korean-speaking lawyers. That’s a particular challenge for British firms because not many Koreans want to go and study in the UK. The US firms are almost spoilt for choice and so have a natural advantage.”

Source: The Korea Times

Picture: The Korea Times

Kenya's President, Uhuru Kenyatta.

In September 2014, Kenya’s President Uhuru Kenyatta appeared before the ICC to deny five counts of crimes against humanity charged against him. This is also the first time a head of state has appeared to face charges before the ICC since its establishment in 2002. Kenyatta is charged for his alleged role in orchestrating a wave of violent unrest following the 2007-2008 presidential elections, where 1,200 people died and 600,000 displaced. The post-election unrest initially began as political riots, but it quickly turned into an ethnic violence between members of the Kalenjin tribe and the Kikuyu tribe (Kenyatta’s ethnic group). At the hearing, Kenyatta did not make any statements, and deferred answering all questions to his lawyer, Stephen Kay.

This particular case has been delayed numerous times, and during this delay, at least seven prosecution witnesses have dropped out amid allegations of bribery and intimidation from ICC’s chief prosecutor, Fatou Bensouda. Just last month, Chief Prosecutor Bensouda requested an indefinite postponement of this case, because the Nairobi government had refused to cooperate with the prosecutor’s request for financial statements and other documents such as telephone records. This refusal has left Bensouda with insufficient evidence to proceed with trial at this time.

Once again, this trial must be postponed. Without further evidence, these allegations against Kenyatta cannot be fully proved. Nairobi’s uncooperative conduct seems to be just another excuse to intentionally delay this action from proceeding against their leader, although the defense has denied such allegations. In September 2014, Kenya had voted to withdraw from ICC jurisdiction after repeatedly asking the Court to drop these cases against African leaders. Additionally, the ICC has been accused of having bias against Africa, indicating that all the cases currently before the ICC are against Africans in eight different African countries. The withdrawal, if it were to happen, would take time to implement because it would involve a number of steps, including a formal notification to the United Nations. In the meantime, the Court stated that trials will still proceed.

The whole premise of the ICC is to ensure justice for everyone who is a party to the ICC jurisdiction under the Rome Statute, and is a victim of particular heinous war crimes. Countries become parties to the ICC to seek justice, so a withdrawal from ICC jurisdiction would definitely send the wrong message about “Africa’s commitment to protect and promote human rights and to reject impunity.” What do you think the ICC should do to address this issue? Should they allow Kenya to withdraw? Assuming the ICC approves of Kenya’s withdrawal, and in light of the fact that the Nairobi government refused to cooperate with the ICC investigation against their leader, such action would create an unwanted precedent of allowing parties to the ICC, whose political leaders are under investigation, to escape potential prosecution by simply withdrawing from its jurisdictions.

Sources: The Guardian; BBC; CNN.

It is very easy in this age of Facebook, Twitter, MSNBC, Fox News and a never ending news cycle to forget that there is still good in the world. We forget that International Law serves a greater purpose and is actually effective. The violence in Syria has been the main focus of the media for the past few years. However, little has been reported on the safety, shelter, and aid that has been provided to the refugees. Even less has been reported on the governments looking to hold the perpetrators of mass murders and tortures accountable. These outside governments, most notably Germany, France and the Netherlands, have created units that utilize universal jurisdiction. In Germany, prosecutors have started broad investigations aimed at countries in crises including Syria and Libya. These investigations called structural investigations focus on the crimes that have been committed during  mass unrest. The governments of Germany, France, and the Netherlands are proactive in their investigations by identifying refugees who might be witnesses.  Germany and a few other European countries collect testimony from asylum seekers on their testimony in order to use in later investigations and prosecutions. These investigations serve two purposes. First, crimes that are committed in these war torn countries are usually not prosecuted until years later. At the point when the investigations would usually start potential witnesses are scattered all over the world and most perpetrators have gone missing. By interviewing asylum seekers at the beginning these investigations are more likely to lead to prosecutions of crimes. Second, these interviews prevent countries from being safe havens for the perpetrators of heinous war crimes. Since many of these crisis countries are years away from having a functional government and even further away from prosecuting war criminal, universal jurisdiction is the best option. Universal jurisdiction is the bright line that international lawyers look to for justice. In all the bad news, there is a remedy and more countries should follow the example of Germany, France and the Netherlands.




Cite: http://www.hrw.org/news/2014/09/19/extending-reach-justice

Image: http://blog.athirtyeight.com/2012/10/universal-jurisdiction-political-liability.html

Got Trash?

Boy in Lagos

In 1989, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposals treaty was created. This treaty, better known as the Basel Convention, was established to prevent developed nations from transferring their hazardous waste materials to less developed countries. The United Nations and 181 states are parties to the international treaty; the United States signed the Convention but they have yet to ratify it.

The current issue is determining what developed nations should do with their waste. Many developed nations, like Canada for instance, has been shipping their waste products off to less developed countries. This is a prime example of the “out of sight, out of mind” philosophy. Recently, the Philippines has requested to re-export 50 storage containers back to Canada. Representative Leah Paquiz stated, “I filed for a Congressional Inquiry in aid of legislation regarding the unlawful importation of the 50 container vans filled with garbage. Clearly, this is a reflection of our dignity as a nation.” While both Canada and the Philippines are parties to the Basel Convention, neither of them have ratified the Basel Ban Amendment which completely prohibits the shipment of hazardous wastes to less developed countries.

The main reason that developed nations are shipping their waste to less developed countries is to avoid the costs of appropriate treatment for the waste. The European Union (EU) has set up a system to regulate transboundary shipments of waste within other EU countries or to outside developing countries called Waste Shipment Regulation (WShipR). WShipR implements the Basel Convention which bans exports of hazardous waste from developed countries to less developed countries. Less developed counties do not have proper and sufficient waste treatment capacity to dispose of the waste in an environmentally safe manner.

So while some nations are taking steps towards implementing the Basel Convention, others are holding off on ratifying the treaty. Do you think that the United States should ratify the treaty? If a nation creates waste, shouldn’t it be their responsibility to dispose of it properly? If we keep sending our waste to less developed nations, it will lead to severe environmental degradation. Who should have the ultimate burden of waste disposal?

Sources: Treaty Collection; InterAksyon; European Commission

Photo: Basel Action Network (BAN)

At least that seems to be the idea spreading across the globe.

The world will always commend those who peacefully speak out for the people who cannot. A most recent example is Nobel Peace Price Winner, Malala Yousafzai.  Unfortunately, even peaceful Malala, who at 17 is the youngest person to receive a Nobel Peace Prize, experienced violent retaliation.  So much so, her life was nearly taken from her by the Taliban.

But, while advocates of rights and protestors in general may start out with the best intentions, too often brutality breaks through.  This is the case numerous cities across the globe. What the media indicates to be the most pressing of the moment is the police’s sudden retaliation to protestors opposing the Chinese government’s involvement in Hong Kong’s upcoming elections.  Footage of this retaliation emerged today, showing a police officer violently attempting to restrain a protestor. Despite indications of Hong Kong Chief Executive Leung Chun-ying’s wishes to engages in talks with the demonstrators, this footage follows reports of previous usage of pepper spray and dangerous bouts to block the crowds.  Even with speculation of such talks, the Hong Kong chief shows no wishes to negotiate.

When protesting takes a turn for the worst, as it almost inevitably does in most situations, the media takes it upon themselves to report that moment.  While the public does have a right to be informed before, during and after these instances, the public also has a right to feel safe in standing up for their rights.  The issue here is how can governments, police officials, other influential bodies and the acting protestors work together to maintain the peaceful nature that seems to be lost over time? Some may say the answer is don’t protest in the first place, but that does not seem to be a realistic solution.  Then it must be asked, does any realistic solution even exist?

Sources: ABC, The Guardian, BBC

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