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Mercury is a toxic pollutant that has extreme neurological and environmental effects when emitted into the air and water. The United Nations Environment Programme (UNEP) has taken steps to control mercury emissions with the Minamata Convention on Mercury. In January 2013, the Convention was finalized, and is open for signature until October 9, 2014 at the UN Headquarters in New York. The United States signed and ratified the Minamata Convention on June 11, 2013.

Article I of the Convention outlines that the objective is to “protect human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds.” Article 8 identifies the steps each government needs to take to reduce mercury emissions. Annex D of the convention includes coal-fired power plants in the definition of point sources of mercury emissions.

Coal-fired power plants are a major source of mercury emissions in the United States. Mercury emissions that are emitted into the air from coal-fired smokestacks pollute nearby water bodies in a process known as atmospheric deposition. The water pollution of mercury negatively impacts wildlife and human health, especially causing severe neurological damage in women and children.

In the United States, mercury emissions from coal-fired power plants are not regulated under the Clean Water Act. Any addition of a pollutant from a point source into navigable waters must be regulated under the Clean Water Act permitting program (CWA  § 402 or 404). Therefore, the failure of the United States to include coal-fired power plants as a point source may create a violation of the Minamata Convention.

Currently, the Clean Air Act in the United States regulates mercury emissions as a hazardous pollutant under a permitting regime, but not as a water pollutant. Should the United States amend the definition of a point source to include coal-fired power plants? This would expand the regulation of mercury emissions into the air and water, better protecting human health. The United States is only regulating coal-fired power plants as a point source under the Clean Air Act, is this enough?

Sources: Minamata Convention on Mercury – Text and Annexes; Minamata Convention – List of Signatories and Parties; UNEP

Picture: CBS

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Over 19 million Indonesians with psychosocial disabilities are falling victim to stigma and discrimination. Erifah, is one of the over 19 million affected by this discrimination who began suffering from schizophrenia affective disorder when she was in the sixth grade. Erihah, is now an activist and advocate for people with psychological disabilities, working for the Indonesian Mental Health Association (PSJ), stating that at a young age her parents did not seek medical care for her when she was a child due to a lack of education and awareness. Erifah stated, “My parents thought I was possessed-they used to put garlic and salt on my body to rid me of evil spirits.”

Erifah only began seeking medical help once she started a family due to the stigma surrounded by psychiatric hospitals as only for “crazy people.” Many people suffering like Erifah, usually do not seek the medical help they need but instead first consult faith or traditional healers.

The lack of availability and access to proper medical treatment in Indonesia is evidenced by the fact that Indonesia only has 48 mental health institutions and about 600 to 800 psychiatrists. Due to the shortage of mental health facilities, families end up shackling their relatives with psychological disabilities because they lack the education and awareness to help them.

Despite a ban on shackling, known as “pasung”, which has been in effect since 1977, the practice continues. According to the Health Ministry, nationwide more than 57,000 people with psychosocial disorders live their lives in chains rather than getting the help they need. These people should not be living their lives in shackles solely because the government is not providing enough access to medical treatment and stigmatizing those with psychosocial disorders.

Indonesia’s new health law, which was approved by parliament on July 8, was enacted to address the country’s pressing healthcare situation in line with the National Convention on the Rights of Persons with Disabilities. The Mental Health Law is supposed to put more of a burden on Indonesia to provide health services on a local and national level such as by making drug treatment more affordable for those suffering with psychosocial disabilities and training more mental health professionals. The law also is an attempt to reduce the stigma and discrimination toward those suffering from these disorders in an effort to protect these persons from “violence, neglect, and exploitation.” The law also provides accountability for abuses, including shackling those with psychosocial disabilities.

However, the law has some problems such as it allows other people to approve the medical treatment of a person with a psychosocial disability if the person is deemed “incompetent.” It also allows medical personal to force treatment on a person whom they feel might “endanger” themselves or others. These provisions could lead to abusive treatment based on lack of informed consent to medical treatment.

Based on international and human rights law, forcing people to take medication without their knowledge or their consent, except when the patient’s life is in imminent danger is in violation of their rights. Under the CPRD, anyone with a disability has the right to make decisions that affect their life. Thus, this right cannot be denied based on a medical diagnosis.

How do you think countries like Indonesia can project a more positive image of people living with psychosocial disabilities? How much power do you think the government should have in determining a person’s medical decisions? What can we do to raise awareness of psychosocial disabilities internationally?

Source: Human Rights Watch, Break the Shackles of Stigma on Mental Health Care in Indonesia 

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According to the Human Rights Watch, transgender people in Malaysia face criminal prosecution under laws that effectively prohibit “cross-dressing” and discrimination in accessing employment, health care, and education. The Human Rights Watch has found that “state Religious Department officials and police regularly arrest transgender women and subject them to various abuses, including assault, extortion, and violations of their privacy rights. Religious Department officials have physically and sexually assaulted transgender women during arrest or in custody, and humiliated them by parading them before the media.”

Since the 1980s, each state has passed Sharia criminal enactments that institutionalize discrimination against transgender people. All 13 Malaysian states prohibit Muslim men from “dressing as women,” while three states also criminalize “women posing as men.” Boris Dittrich, LGBT advocacy director stated: “Transgender people in Malaysia risk arrest every day they step out of their door simply because of the way they express themselves. The authorities shouldn’t be harassing and punishing people just for being who they are.”

Something needs to be done to stop discrimination against transgender people. Dittrich has further stated that: “Malaysia urgently needs to scrap laws that discriminate against transgender people, adhere to international rights standards, and put in place comprehensive non-discrimination legislation that protects them. It is high time that the authorities recognized that transgender people have the same rights as all Malaysians.” Do you agree with Dittrich? Why or why not? I believe something needs to be done as soon as possible to protect these people’s rights. The Malaysian government needs to repeal these laws that discriminate against transgender people. Malaysia’s law against “cross-dressing” is contrary to the internationally guaranteed rights to non-discrimination, privacy, and freedom of expression and movement recognized by the Universal Declaration of Human Rights, whose provisions are considered reflective of customary international law. Additionally, Malaysia’s federal constitution states that the people have a right to equal protection under Article 8. However, are these transgender people actually being treated equally? What should the Malaysia government do to make sure they are treated equally? The way the police are treating these transgender people is cruel and inhumane. Something needs to be done and it needs to be fast. Transgender people should not be punished for being who they are and should be given equal protection just like everyone else under the law.

 

Source:  Human Rights Watch

Image: Autostraddle

Tags: Malaysia, Malaysian, Transgender, Human Rights Watch, Boris Dittrich, Discrimination, Sharia Criminal Enactments, Arrest, Cruel, Cross-Dressing, Article 8 of Malaysia’s Federal Constitution, Women, Men, Equal Protection

 

Just one week after the now resigning U.S. Attorney General, Eric Holder, urged administrative and judicial entities to increase awards in whistleblower cases, the SEC granted its largest award to date. They’ve awarded an unnamed foreign whistleblower $30 million dollars under the Dodd-Frank whistleblower provision. Under Dodd-Frank, “an individual alone, or jointly with others, must provide [the Commission] with original information about a violation of the federal securities laws that leads to the successful enforcement of a[n action].” The Dodd-Frank Act and the Sarbanes-Oxley Act partially ratify Article 31 of the United Nations Convention Against Corruption—an international treaty requiring employees who have a “reasonable suspicion” of federal statute violations by their employers, to report suspected violations to appropriate authorities. In light of some recent events such as Enron, the NSA, and the economic collapse in 2008, Holder, along with other activist groups, has been pressing for legislation requiring unprecedentedly large awards for whistleblowers. Holder argues that whistleblowers deserve large awards because they are almost always terminated by their employers, and frequently excommunicated from their profession altogether. Larger rewards would provide safeguards for the economic future of whistleblowers, as they will most likely not be able to return to the profession. Additionally, large damages would entice high standing corporate officials to be more forthcoming.

For confidentiality purposes, the SEC did not release any facts regarding the case, but they did find that U.S. anti-retaliation laws do not protect foreign whistleblowers. Under Dodd-Frank and the Sarbanes-Oxley Act employers cannot retaliate against employees who “blow the whistle.” That is, employers cannot demote, terminate, or intimidate employees based on their whistleblowing. However, because U.S. statutes do not protect foreign whistleblowers, they are subject to the laws of their governing nation regarding retaliation.

Here, it appears the SEC awarded large damages to give further protection to the foreign whistleblower—but is that fair? Further, do you think U.S. federal statutes regarding anti-retaliation should protect a foreign citizen who is working for a U.S. corporation? I reason the SEC acted appropriately in granting a larger-than-usual award if the aim of the statute is to protect the whistleblower. However, such implicit protections may cause problems that the U.S. is not prepared to deal with. For one, how much is too much? As David Smyth, of Brooks, Pierce, McLendon, Humphrey & Leonard, LLP points out,  “[w]hat if the 2010 Goldman Sachs case, with sanctions of $550 million, had been ignited by a whistleblower and the SEC decided to award that person 20% of it… [w]ould the whistleblower program have more or less credibility after paying out $110 million for that case?”

Sources: JD Supra; WSJ; Mod. Corp. Checklist (Westlaw)

Image: News Room

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President Petro Poroshenko seems to be Ukraine’s golden ticket to becoming a member of the European Union. Recently, Poroshenko expressed his adamant determination to lead Ukraine towards a more democratic state by eliminating political corruption and implementing judicial and economic reform. Poroshenko’s domestic policy is widely supported by the Ukrainian population. In fact, many Ukrainians demanded reform during the administration of former President Viktor Yanukovych.

In November 2013, the Ukrainian people responded in outrage to Yankovych’s rejection of the Ukraine-European Union Association Agreement. Under the agreement, Ukraine was to establish political and economic relations with Europe and receive aid for economic and judicial reform. Instead, Yankovych planned to pursue an economic policy with Russia. Yankovych’s actions lead to social unrest, wherein Ukrainians occupied Kiev’s Independence Square and openly protested the administration. In February 2014, after many violent protests and killing of civilians, it became clear Ukraine was on the brink of civil war. Ultimately, Yankovych fled the capital and went into hiding in southern Russia.

Afterwards, further investigation into Yankovych’s administration proved that the regime was involved in political corruption, money laundering and tax evasion. The Ukrainian parliament recently issued a resolution ordering Yankovych to be tried by the ICC after his capture. His international crimes include money laundering, corruption and mass murder of Ukrainian activists.

President Poroshenko, a pro-Western successful businessman, was elected as Yankovych’s replacement. However, Russia reacted with hostility to Poroshenko’s election by invading eastern Ukraine. Russia’s military occupation in eastern Ukraine is in violation of numerous international treaties including Article 39 of the U.N. Charter and the 1994 Budapest Memorandum on Security Assurances. Under the Budapest Memorandum, Russia agreed to guarantee Ukraine sovereignty and political independence in exchange for Ukraine’s surrender of nuclear arsenals. In addition to Russia and Ukraine, the U.S. and U.K. also became signatory parties to the agreement.

So far, the U.S. has issued some sanctions against Russia for its invasion into eastern Ukraine. During a G7 summit in June 2014, the U.S. and its allies further condemned Russia’s military occupation and stand ready, although cautious, to issue additional sanctions.

Meanwhile, despite Russian occupation, President Poroshenko continues to work diligently on moving Ukraine towards a stable democratic state and ensuring justice be served on Yankovych. During a press conference he explained, “I was always opposed to the absentee court hearings. But now I’m ready to change my mind. We can’t be waiting for the accused to be extradicted …. So I think the parliament must vote to give a special resolution (to convict them).”

I agree with President Yankovych that the Ukrainian parliament should issue a resolution for an absentee hearing of Viktor Yanukovych. I also agree with the Obama Administration issuing sanctions against Russia for their military occupation. However, shouldn’t there be a more aggressive approach from the U.S.? Especially since the Ukrainian population seek acceptance and support from Europe and the West. Furthermore, shouldn’t there be a joint international approach against Russia’s actions?

Sources: Congressional Research Service, Ukraine: Current Issues & U.S. Policy; Chatham House, International Law Programme: Russia and Eurasia Programme Summary; KyivPost, Poroshenko favors trials in absentia for those charged with crimes during Yanukovych era (Live)The Economist, Ukraine’s Stolen Assets, A Long, Hard Slog

Iraqi Detainee from Abu Ghraib

When a multinational force led by the United Stated invaded Iraq in 2003, Iraqi civilians expected to live under constant bombardment, shortages of food and water, and instability. What the Iraqi Civilians did not expect was for their husbands, fathers, and children to be exposed to brutal torture and humiliation by US military and Corporations in secret prisons, like Abu Ghraib.

In 2008, previously detained Iraqis filed a civil action in Federal Court against CACI Premier Technology, Inc. (CACI) alleging various claims under the Alien Tort Statute (ATS), including claims of war crimes, torture, crimes against humanity, sexual assault and cruel, inhuman or degrading treatment. CACI, a corporation with headquarters in Virginia, was hired by the U.S. Government to conduct “interrogations” of detainees in Abu Ghraib in 2003 due to a shortage of military personnel. On June 30, 2014, the Fourth Circuit Court of Appeals overturned the lower court’s dismissal and ruled that the case had sufficient ties with the US for a US court to hear the plaintiff’s claims. The main issue is whether the ATS, as interpreted by the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum Co. will allow for a jurisdictional basis to hold U.S. corporations and its employees liable for torture and war crimes committed in a foreign territory.

The United States, just like every nation, must implement the provisions of the International Covenant on Civil and Political Rights (ICCPR) into domestic law, including taking “the necessary steps… to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present covenant,” such as the “right not to be subjected to torture.” Since CACI was hired by the U.S. Government to assist with interrogations of Iraqi detainees, they should be held liable to such standard. If they are not held liable, the United States can get away with torturing detainees by simply hiring third-party “hitmen.”

Furthermore, pursuant to Article 2(1) of the ICCPR, the phrase “each state party to the present Covenant undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction” has been construed to include all persons in a State’s territory or under its control. Since Iraqi civilians are being held in a prison controlled by the United States, those individuals are entitled to protections of the ICCPR. The United States and all of its employees are not permitted to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.

If the Fourth Circuit affirms the lower court’s decision, it will release all U.S. corporations and their employees of liability for committing war crimes, crimes against humanities and torture. What kind of model is the United State setting for the rest of the world to follow?

Sources: International Enforcement Law Reporter: “U.S. Appellate Court Reinstates Abu Gharib Torture Suit against CACI” (October 2014);  Business and Human Rights Resource Center: “Abu Ghraib Lawsuits Against CACI, Titan”;   International Covenant on Civil and Political Rights

Image: Restoring Humanity

 

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U.S.Trade Representative Michael Froman recently announced that the Obama administration is proceeding with a labor enforcement case against Guatemala. The case arises under the Labor Provisions of the U.S.-Dominican Republic-Central America Free Trade Agreement (“CAFTA-DR”) and is the first case to be litigated under any free trade agreement. The CAFTA-DR is a free trade agreement the United States entered into with five Central American Countries; Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua and the Dominican Republic. Since its creation, the treaty has been used to create new economic opportunities by opening markets and promoting transparency in the region.

The thrust of this case rests on Chapter 16 of the CAFTA-DR. Chapter 16 outlines the parties shared commitment under the International Labor Organization to ensure internationally recognized labor norms. More specifically, article 16.2 contains an “enforce your own laws” standard: “A party shall not fail to effectively enforce its labor laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the parties, after the date of entry into force of this Agreement.”

It is apparent the United States has been concerned with the action or inaction of the Guatemala government in implementing its labor laws for a while now. In 2008 AFL-CIO and six Guatemalan labor unions filed a complaint with the U.S. Labor Department alleging that the Guatemalan government was failing to enforce its own labor laws, as required under the trade agreement. Then in 2011, due to Guatemala’s continued and apparent failure to comply with Article 16.2, the United States requested the establishment of an arbitral panel under the CAFTA-DR’s dispute settlement chapter. Soon thereafter, Guatemala and the United States agreed to suspend the arbitral panel in hopes an implementation and enforcement plan would be effective.

Through the Enforcement Plan, Guatemala promised to strength its labor inspections, streamline the process of sanctioning employers, increase labor law compliance by companies, and enforcement by labor court order. Guatemala has since failed to meet the terms of the Enforcement Plan, and therefore, is still in violation of Article 16 of CAFTA-DR. As such, The United States is expected to file a brief for the arbitration panel within four weeks.

This step by the Obama Administration has been applauded by AFL-CIO President Richard Trumka who knows this arbitration could have important implications on the trade agreements currently being negotiated by the United State, such as the Trans-Pacific Partnership (“TPP”) and Transatlantic Trade and Investment Partnership (“TTIP”). Trumka hopes these treaties will include stronger labor protections with mechanisms that are powerful toprotect workers’ rights in a timely manner.

Depending on the outcome of the arbitration, there may be an uptick in arbitral enforcement of treaties, and human rights provisions therein. But is this enough? Trumka’s statements suggest the arbitral panel and provisions of the CAFTA-DR are not strong enough protections for workers under a trade agreement. Is the arbitration a clear enough message to future trade partners that labor rights are fundamental to a trade relationship with the United States? If not, what provisions could be drafted into TPP or TTIP to ensure our future trade partners will meet their obligations and enforce labor rights?

Sources: CAFTA-DR Art.16; U.S. Trade Rep. Treaty BackgroundU.S. Trade Representative Press Release; U.S. Trade Rep. Announcement; Bloomberg

Image: Export.gov

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Financial institutions now have a duty to know exactly who their customers are. This week a United States federal jury found Arab Bank PLC, the major bank in Jordan, liable for supporting terrorism efforts in the Middle East. This is the first time a financial institution has been held liable in a civil suit under an anti-terrorism statute.

Family members of victims affected by the suicide bombings and attacks in Israel, the West Bank, and Gaza in 2000 sued Arab Bank for violating the Anti-Terrorism Act and the Alien Tort Claims Act. Arab Bank, which has branches in the United States, processed transactions for charities that were fronts for the terrorist organizations who committed those attacks.

The bank argued that it followed the proper compliance procedures and checked transactions against the appropriate terrorist list. Specifically, it claimed that the charity in question, Saudi Committee, was never listed as a terrorist organization by the United States. It admitted that one customer, Hamas leader Sheikh Ahmed Yassin, was on a designated terrorist list but was missed due to a spelling error.

This case certainly highlights the role that banks can play in funding terrorist groups and the extent to which they can be held responsible for monitoring their customers. As a result, banks are now expected to identify terrorists on their own.  This case poses two questions that need to be answered. First, does this verdict undermine the compliance systems that are used by financial institutions around the world? Second, does it create uncertainty and risk in conducting business with the United States?

This verdict may be unfair to banks that follow the proper banking compliance procedures, and will certainly make them more cautious when dealing with groups or individuals in unstable parts of the world.  Banks should be required to conduct proper due diligence when dealing with customers in these areas. This verdict is in the United States’ best interest in preventing the funding of terrorists groups. Although international banks may think twice about doing business with the United States, our financial sector is still in high demand.

Do you think it is fair to hold banks responsible for funding customers who they may not know are terrorists?  What do you think are other implications of this verdict?  Do you think that it is the government’s job to make sure banks are not funding terrorists or should banks create their own terrorist lists?

Sources: Bloomberg, New York Times, Linde v. Arab Bank

Picture: PJ Tatler

Freedom-of-Speech-megaphone

Free speech is undoubtedly one of the most fundamental rights in the United States. In what became known as the “Pentagon Papers Case,” the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a “classified” Defense Department study regarding the history of United States activities in Vietnam. President Nixon argued, that preventing the press from publishing the study was necessary for protection of national security. Still, the Supreme Court found that publicizing the study did not actually pose a serious threat to national security, and denying press the right to do so would therefore constitute a violation of free speech.

Australia currently faces similar issues. According to the International Criminal Court, the Australian parliament is scheduled to debate new set of laws, which are supposed to aid in counterterrorism efforts. The laws will criminalize the reporting of “special intelligence operations,” even though the true definition of the term has not yet been provided. Based on the case discussed above, it should be clear that classifying something as “confidential” or “secret” does not necessarily mean that it should not be published. The fear is that severe punishments (imprisonment for up to 10 years) associated with such reporting and whistle blowing will lead to infringement on free expression. I believe this concern is legitimate.

It is hard to imagine that people, both the general public and reporters, would be willing to risk potential jail time, for reporting on controversial issues often associated with actions of the government. Furthermore, the offense currently covers “recipients of an unauthorized disclosure of information” who “engage in any subsequent disclosure.” This means that not only those who report, but also the ones who share what has been said could be held responsible for the disclosure. This fact creates a huge social media concern because all it takes to violate the new set of laws is basically a click of a button. Does this seem reasonable?

Counterterrorism laws and activities became a necessity in the post 9/11 world, but how far can the government take the efforts to protect national security? There have been some issues with determining where to draw the line. Most people have no problem with heightened security checks, but is infringing on the information published by the press going too far? What could be the repercussions of limiting the press? All of these questions need to be taken into consideration.

Sources: Human Rights Watch NY Times v. United States Human Rights-Whistleblower Protection

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On September 16, 2014, the European Court of Human Rights (ECHR) issued a judgment in the case of Mansur Yalçin and Others v. Turkey. The principal issue was whether or not Turkey’s compulsory religious education violated Article 2 of Protocol No. 1 to the European Convention on Human Rights (right to religion). The 14 applicants practice the Alevi faith. They alleged that the religious education their children were receiving in school contradicted their own convictions and contained prejudicial treatment. Specifically, the applicants complained that only Jewish and Christian students had an opportunity to be exempt and that the textbooks treated the Alevi faith as a tradition, not as a belief system in its own right. The ECHR ruled that Turkey had violated three of the fourteen applicants’ right to religion.

This case was particularly interesting to me because of the lack of support the applicant received from the Turkish government even after the case of Hasan and Eylem Zengin v. Turkey. In Hasan, the ECHR ruled that the educational system in Turkey violated the rights of Alevi parents as it focused predominately on the majority interpretation of Islam. Furthermore, the fact that Alevi students did not have the possibility of exemption was deemed extremely unreasonable.  Shockingly, the Alevi parents in the present case filed a request with the Ministry of Education to overhaul the curriculum only to have it rejected. This action by Turkey forced its own citizens to seek assistance in an International Court even after the country was found to have violated certain citizens’ right to religion.

The ECHR did note that there was some improvement as Turkey began to include information about various beliefs after Hasan.  However, in light of their treatment of the applicants, the court found that it was not enough to ensure respect for the parents’ convictions. The ECHR emphasized the State’s duty of neutrality and impartiality in regulating matters of religion. I personally feel that the ECHR judgment in Hasan only affected Turkey’s educational practices on a minimal level. That is why it is so disturbing that Turkish citizens are not able to receive a proper remedy or course of action in their own country. The practices in question are a clear violation of basic human rights but the parents must resort to an international court that does not possess a clear enforcement procedure.

In the bigger picture, what impact will this judgement have if Turkey seemed to ignore the earlier decision in Hasan on an extremely similar issue? How can the proponents of the Alevi faith gain any traction on this issue if they lack the respect of the majority of the Sunni population in Turkey?

Source; Mansur Yalçin and Others v. TurkeyHasan and Eylem Zengin v. Turkey.

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