Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Ireland and the Road to Gender Equality

Alison Aminzadeh

When one thinks of a state currently in turmoil, The Republic of Ireland is not usually the first to come to mind. However, the country has faced intense criticism directed at its criminalization of abortion.[1] Is the state suffering from collective cognitive dissonance? It has been lauded for becoming the first country to legalize marriage equality by popular vote, after only decriminalizing homosexuality almost twenty years ago.[2] Many point to this quick turnaround as evidence of the state’s increasingly progressive politics and that Ireland is an “inclusive and tolerant nation.”[3] At the same time that the Irish voters made this historic decision, women and girls still did not have access to safe and legal abortions.[4] The absence of this right is evidence that Ireland is neither a progressive paradise nor an intolerant wasteland; despite the many ways the country has overcome its history of discrimination, half its population does not have access to the reproductive health services that are a hallmark of equality in developed nations.[5]

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Abortion is sometimes considered a right under international law,[6] but women and girls in Ireland can only obtain one if the pregnancy endangers the life of the woman.[7] According to the Irish Family Planning Agency, this also includes suicide, as this would qualify as a serious threat to the mother’s life. The Protection of Life During Pregnancy Act of 2013 provides for this exception.[8] After much deliberation about the suicide exception, the PLDPA was constructed to require two psychiatrists and one obstetrician to ensure that the test (based in the constitution) is met: (1) there is a real and substantial risk that the woman will die from suicide, (2) in the reasonable opinion of the psychiatrists and the obstetrician, terminating the pregnancy is the only way to avert this risk, and (3) in arriving at that opinion, the doctors have held in regard the need to preserve the life of the unborn as far as practicable.[9] Besides Andorra, Malta, and San Marino, Ireland is the only country in Europe that bans abortion, even in instances of rape, incest, and fetal impairment.[10] Amnesty International launched a campaign to encourage Ireland to – at the very least – allow abortions in these exceptional cases.[11] The draconian law, Ireland’s Regulation of Information Act, also criminalizes doctors and counselors who provide patients with information on abortion, including the process for safely obtaining an abortion.[12]

Organizations such as the Irish Family Planning Agency work to provide this information to patients anyway. While it is illegal to counsel women seeking abortions over the telephone, they are permitted to have face-to-face interactions abroad.[13] As is the case in the United States, there are also pregnancy crisis centers that imply they can provide abortions; in reality, however, these locations discourage them through misinformation and intimidation tactics.[14] Despite the many obstacles women seeking abortions face, they have the right to request and receive counseling and other information on abortion services in other states, travel to another state for a safe and legal abortion, and be treated with dignity and respect.[15] Many of these women seek abortions in Britain, where it is legal up to 24 weeks.[16] After returning to Ireland, however, these women also have the right to free post-abortion counseling and medical check-ups in Ireland. Notably, Ireland funds these services.[17]

imageireland_pro_life_rally

Amnesty International published a report based on the Universal Declaration of Human Rights, titled She is Not a Criminal: The Impact of Ireland’s Abortion Law.[18] The report addressed a wide range of topics that address the repercussions of this law, including stigma, suicidal intent and early delivery, and censorship regarding patient counseling.[19] The report also specifically addresses several facets of international law. For example, the report specifically states that there is an international human rights obligation to address gender stereotypes. It argues that a slew of restrictive laws – Eighth Amendment (1983), Article 40.3.3 of the Irish Constitution, Bunreacht na hEíreann, and the PLDPA of 2013 – reinforce a deep-rooted desire to control the sexuality of females.[20] The report also makes a persuasive argument that Ireland has “outsourced” its human rights obligations; in other words, these restrictive laws have forced women and girls to leave the country in order to find what they are entitled to under international law.[21] This is especially true for the most vulnerable populations of women: the poverty-stricken, the ill, migrants, and asylum seekers.[22] Irish women and girls may have a constitutional right to travel abroad to seek safe and legal abortions, but the right is inaccessible to these vulnerable groups.[23]

For the reasons stated, the Irish government should amend the PLDPA and Ireland’s Regulation of Information Act to reflect greater access to reproductive rights, especially safe and legal abortion. Only sixty-eight other countries around the world subject women and girls to such restrictive abortion laws (entire bans, or bans with the exception of saving the life of the mother).[24] Twenty-six percent of the world is subjected to these draconian laws. However, most of these sixty-eight countries are outside of Europe and North America.[25] Compared to those states to which it is most culturally similar, Ireland’s abortion laws are unreasonably restrictive and run contrary to the spirit of international human rights.

Alison Aminzadeh is a third year law student at the University of Baltimore. She is currently a Rule 16 attorney working on the Human Trafficking Project as a part of the Civil Advocacy Clinic. She is also a Senior Staff Editor for the Journal of International Law, and the former President of the Students Supporting the Women’s Law Center. 

[1] Abortion & Irish Law, Irish Family Planning Association (last visited Mar. 28, 2016), available at https://www.ifpa.ie/Pregnancy-Counselling/Abortion-Irish-Law.

[2] Kaitlyn Denzler, Marriage Equality but Not Reproductive Rights: Ireland’s Inconsistency on Human Rights, Amnesty International (Jun. 9, 2015), available at http://blog.amnestyusa.org/europe/marriage-equality-but-not-reproductive-rights-irelands-inconsistency-on-human-rights/.

[3] Id.

[4] Id.

[5] Population – female (% in total) of Ireland, Trading Economics (last visited Mar. 28, 2016) available at http://www.tradingeconomics.com/ireland/population-female-percent-of-total-wb-data.html.

[6] Abortion remains a controversial issue and there is disagreement about whether there is an international right to it. However, it is argued that many sources of international law imply the right. For example, the ICESCR states that women are guaranteed the right to the “highest attainable standard of physical and mental health.” Safe and Legal Abortion is a Woman’s Right, Center for Reproductive Justice 2 (Oct. 2011), available at http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/pub_fac_safeab_10.11.pdf, citing International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16, 1966, art. 12 G.A. Res. 2200A (XXI), U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316 (1966) (entered into force Jan. 3, 1976), [hereinafter ICESCR]; Amnesty International, supra note 2. Furthermore, in 2010, the European Court of Human Rights heard A, B, & C. v. Ireland. While the court did not decide on the substance of the Ireland’s restrictive abortion laws, it did hold that – under international human rights – women were entitled to a clear process that would let them know whether the Irish law would allow them to legally have an abortion. Heike Felzmann, Challenging Public Deliberation: abortion and suicidality in the Protection of Life During Pregnancy Act of 2013, Nat’l Univ. of Ireland Galway 3 (Eds. Allyn Fives & Keith Breen, last visited Mar. 28, 2016), available at http://www.academia.edu/13878703/Challenging_public_deliberation_abortion_and_suicidality_in_the_Protection_of_Life_During_Pregnancy_Act_2013; http://www.echr.coe.int/Documents/FS_Reproductive_ENG.pdf.

7 Irish Family Planning Association, supra note 1.

8 About Us, Irish Family Planning Association (last visited Mar. 28, 2016), available at https://www.ifpa.ie/about_us.

[7] Id.

[8] Irish Family Planning Association, supra note 1.https://www.ifpa.ie/Pregnancy-Counselling/Abortion-Irish-Law. The 8th Constitutional Amendment to the Irish Constitution – Article 40.3.3 – guarantees the right to life to the unborn. Attorney General v. X (“the X case”) made the vague law more specific, forbidding abortion even if cases of rape; however, the 1992 case held that being suicidal was an exception. The inclusion of the suicide exception in the Protection of Life During Pregnancy Act of 2013 was highly contested for several reasons, one of which was the argument that allowing this exception would cause the “floodgates” to open. Incidentally, whether a woman is suicidal from pre-existing mental health conditions or directly as a result of her pregnancy needs not be distinguished. Felzmann, supra note 5, at 2-3.

 

[9] Felzmann, supra note 5, at 9, citing Implementation of the Protection of Life During Pregnancy Act of 2013: Guidance Document for Health Professions, Dep’t of Health, Ireland (2014), available at http://health.gov.ie/wp-content/uploads/2014/09/Guidance-Document-Final-September-2014.pdf.

[10] Denzler, supra note 2.

[11] Id.

[12] Id.

[13] Irish Family Planning Association, supra note 1.

[14] Id.

[15] Id.

[16] Abortion is legal in Britain up to twenty-four weeks, subject to some conditions. Id.

[17] Id.

[18] See generally She is not a Criminal: The Impact of Ireland’s Abortion Law, Amnesty International (2015), available at http://www.amnestyusa.org/sites/default/files/she_is_not_a_criminal_-_embargoed_09_june.pdfs.

[19] Id. at 17, 27-28.

[20] Id. at 13.

 

[21] Ireland: Government Must Accept UN Call for Constitutional Referendum on Abortion, Amnesty International (Jun. 22, 2015), available at http://www.amnestyusa.org/news/press-releases/ireland-government-must-accept-un-call-for-constitutional-referendum-on-abortion.

[22] Amnesty International, supra note 18, at 24.

[23] See generally Id.

[24] Felzmann, supra note 5, at 4, citing R. Boland & L. Katzive, Developments in Laws on Induced Abortion: 1998-2007, International Family Planning Perspectives 110-20 (2008).

[25] Id.

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Burundi: All the Makings of Genocide

John Rizos

Walking through a cornfield you come across a corpse with the heart removed. Further down, by the outskirts of the city, you notice a body in the drainage canal. It appears to have been there for a few days. This is not an episode of “The Twilight Zone”, but rather some of the sights in Burundi, a place where the term genocide is gaining more traction in describing the situation [1]. The UN Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as, “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.”[2]

On Monday, March 14, 2016, the European Union (EU) decided to suspend aid to Burundi’s government following a political crisis, which has resulted in more than 400 deaths and 240,000 refugees to neighboring countries within the last year. The crisis stems from the illegal third term of Burundi’s President, Pierre Nkurunziza[3].

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Pierre Nkurunziza is a former Hutu rebel leader and is the current the leader of the National Council for the Defense of Democracy–Forces for the Defense of Democracy (FDD). He was voted into office by parliamentarians in 2005 and was reelected in 2010. Since then, he has shown signs of authoritarianism by planning attacks on opposition and placing pressures on media[5]. In July 2015, he was reelected for a third term amidst suspicions of poll fraud[6]. Burundi’s Constitutional Court ruled in Nkuruziza’s favor and stated that his first term did not count because he was elected by the country’s parliament, and not directly by citizens. In response to the reelection and the Court’s decision, attacks by rebel groups and protests have increased in the last six months[7]. The government has responded with systematic violence, torture, and imprisonment.

Although the EU has promised to cut financial aid, it will not put a stop on humanitarian aid. Figures from 2014 indicate that the last installment of financial aid was around $68Bn, of which an approximate $16Bn went directly to the government[8]. However, the EU promised to maintain funding projects for basic services and emergency assistance[9].

The EU is keen on upholding the terms in the Cotonou Agreement with Burundi. The agreement was made to safeguard and promote human rights, democratic principles, and the rule of law between the European Community and the African, Caribbean, and Pacific Group[10]. Article 96 of the agreement outlines a consultation proviso with procedures for solving human rights issues covered by the agreement. The EU and Burundi began consultations in December 2015[11]. The consultations resulted in a stalemate as the government of Burundi showed insufficient measures in addressing the state’s violation and securing a progressive plan[12]. The EU Foreign Policy Chief stated that the bloc would resume direct aid once concrete measures were taken by the government[13]. The EU also demands Burundi to release more than 2,000 prisoners, to lift social media restrictions, and to allow the UN to investigate political violence[14].

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Further, the government has been labeling protesters as terrorists and instructing the police to use all force necessary to quell protests. Security forces have been staging execution-style killings of citizens and sending anonymous threats to families of those suspected of protesting against the government[15].Yet, the government has denied any sign of systematic violence. One of Nkurunziza’s spokespeople has accused the opposition of killing innocent people in order to garner international sympathy and attract attention to overthrow the government[16]. However, satellite images indicate five possible locations of mass graves,[17] which, based on Amnesty International, are likely the result of “…deliberate effort by authorities to cover the extent of killings by their security forces…”[18]

Both, the EU and Burundi’s government, have reacted by not calling the situation, “genocide.” The EU, as the main proponent and signatory of the Cotonou Agreement, has not rushed to label the situation genocide. If the EU were to call it genocide, it would force the member states to take action in attempting to prevent or further investigate the situation[19]. Yet, although killings may seem systematic, it is likely too soon to make the call for genocide and there are is insufficient evidence of the government targeting one specific group. Alternative diplomatic methods are preferred before actual interference; suspending financial aid is one such method. However, we see the “teeth” that the European Union is able to exhibit. The EU can suspend financial aid at once, while still fund and create projects without the government’s consent. It can trump sovereignty while abiding by humanitarian principles.

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Nkurunziza’s administration has acted strategically in order to avoid the situation being branded as “genocide.” Although the government’s actions are likely to be deemed systematic and illegal, the killings have been spread out, limited to smaller settings, and have been done indiscriminately against alleged protesters. However, in recent trends, large-scale violations are not needed for the international community to intervene, especially if assessments/investigations show early warning signs of genocide[21]. IGOs and NGOs have been able to intervene in every facet of life and can raise awareness about any topic through improved methods. Actions by the Burundian government have been noticed internationally and officials have compared them to the Rwanda Genocide[22]. Even a Senior Burundian Political Analyst has recognized that the EU’s “muscle” coupled with unprecedented NGO involvement will bring the demise of Nkurunziza by stating, “The President has no chance. He knows human rights groups are recording all the extrajudicial killings, assassinations, torture. He knows he’ll be arrested in the end by an international tribunal so he wants to achieve as much as he can.”[23] Although the process of handling genocide may seem slow, such assurance, by a native analyst nonetheless, shows that the EU and the UN have greatly improved genocide prevention methods and persecution of responsible criminal officials within the last 20 years.

John Rizos is a 2L at the University of Baltimore School of Law. He has an interest in human rights and international criminal law. In addition to being a CICL Fellow, he is the Secretary for Phi Alpha Delta. He graduated with honors from Towson University with a BA in International Studies (2013). He has interned at the Press Office of the Greek Embassy in Washington, D.C. and the International Civil Advocacy Network (ICAN), a non-profit organization advocating for women’s rights in the Middle East.

[1] http://www.independent.co.uk/news/world/africa/burundi-election-president-pierre-nkurunzizas-victory-has-reignited-fears-of-genocide-like-that-a6734026.html

[2] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx

[3] http://www.nytimes.com/2016/03/15/world/africa/european-union-suspends-aid-to-burundi-over-political-crisis.html

[4] http://www.bbc.com/news/world-africa-13085065

[5] http://www.bbc.com/news/world-africa-13085065

[6] Id.

[7] Id.

[8] http://www.nytimes.com/2016/03/15/world/africa/european-union-suspends-aid-to-burundi-over-political-crisis.html

[9] http://www.dw.com/en/eu-cuts-financial-aid-to-burundi-government/a-19115523

[10] http://www.europarl.europa.eu/document/activities/cont/201306/20130605ATT67340/20130605ATT67340EN.pdf

[11] http://reliefweb.int/report/burundi/burundi-eu-closes-consultations-under-article-96-cotonou-agreement

[12] Id.

[13] http://www.dw.com/en/eu-cuts-financial-aid-to-burundi-government/a-19115523

[14] http://www.nytimes.com/2016/03/15/world/africa/european-union-suspends-aid-to-burundi-over-political-crisis.html

[15] Id.

[16] http://www.independent.co.uk/news/world/africa/burundi-election-president-pierre-nkurunzizas-victory-has-reignited-fears-of-genocide-like-that-a6734026.html

[17] http://abcnews.go.com/International/wireStory/burundi-govt-58-people-buried-notifying-families-37547395

[18] Id.

[19] http://www.eurojust.europa.eu/Practitioners/Genocide-Network/Pages/Genocide-Network.aspx

[20] http://www.independent.co.uk/news/world/africa/burundi-election-president-pierre-nkurunzizas-victory-has-reignited-fears-of-genocide-like-that-a6734026.html

[21] http://www.un.org/en/preventgenocide/adviser/responsibility.shtml

[22] http://www.independent.co.uk/news/world/africa/burundi-election-president-pierre-nkurunzizas-victory-has-reignited-fears-of-genocide-like-that-a6734026.html

[23] Id.


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Understanding and Combatting Slavery in Mauritania

Alison Aminzadeh

Mauritania is a country in West Africa, and has become the fourth country overall and second African country to approve a UN Treaty designed to put “teeth” in its efforts to stop modern day slavery – specifically, forced labor and trafficking[1].  The 2014 Protocol modernizes the Forced Labour Convention of 1930.[2] The states that ratify the new protocol must “change laws to improve victim protection, compensation, and access to justice.”[3] . The protocol includes (1) measures to prevent modern forms of slavery and (2) to compensate victims. The International Labor Organization (ILO) seeks to have at least fifty countries sign the protocol by 2018. The ILO estimates that 21 million people are forced into labor worldwide, which is a $150 billion dollar a year industry (in illegal profits). Common places where slaves are used include: brothels, farms, fisheries, factories, construction and domestic service.[4]

Mauritania Political Map

Mauritania Political Map with capital Nouakchott, national borders, most important cities, rivers and lakes. 

However, one problem that arises when discussing slavery in Mauritania is that Americans do not have a framework for what slavery looks like in other countries.  Slavery in Mauritania looks different than slavery in American history books.[5] The slavery that dominated the southern U.S. states was based on human exploitation. Some argue that in Mauritania, in contrast, is a “rural fiefdom within an agro‑pastoral lifestyle, marked by social stratification and division of labour” rather than “systematic torture and segregation.” Slaves are still subordinate in society, but not marked by shackles and physical abuse in the way it was in the American south.[6] One particular gendered form of slavery is that girls from Mauritania are commonly trafficked to the Middle East, according to U.S. State Department’s Annual Trafficking Report.[7]

Slavery in Mauritania is also determined by a caste system. The slave caste is called the Haratin, descended from Black African ethnical groups along the Senegal River. They are usually Herders and domestic servants.[8] In contrast, the ruling caste – a minority – is the Beydanes (Arab-Berbers), who hold the wealth and political power.[9]

Aminzadeh Blog 1_Photo4

Slavery is a de jure crime in Mauritania, but it is still practiced.[10] Mauritania criminalized slavery in 2007. In 2015, the government passed a new law that makes the offense a crime against humanity, doubling the prison term to twenty years.[11] However, the Global Slavery Index indicates that Mauritania has the highest prevalence of slavery in the world, with 4% of population is enslaved (Four percent of the population totals about 150,000 people).[12] Although now technically freed according to the law, majority of those not enslaved still live in slums and unemployment.[13]

Even after slavery was criminalized in 2007, those campaigning for its abolition still face many obstacles. Anti-slavery advocates allege that “complaints [that people are still being enslaved] are not properly investigated and that anti‑slavery campaigners have been arrested and jailed [for making those complaints].”[14] The jailing of these advocates is not surprising in the context of Mauritania’s judicial system, as the assertion that the justice system is failing victims of slavery in Mauritania is not unprecedented. The judicial system is heavily influenced by the government and has a reputation for being corrupt. Most of the members of the judicial system are also Beydanes, the ruling caste.[15] Nema Oumar is a journalist who wrote an article that alleged that a defense attorney had bribed three judges with 25 million ouguiyas (68,650 euros) to release a police officer and businessman accused of drug trafficking. Oumar was arrested and held for defamation as a result of his article.[16]

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Shortly before the UN Human Rights Council in Geneva was set to review the “Roadmap to Combat Vestiges of Slavery” (a 49-page report published by the Mauritanian government), a group of NGOs released a report of their own. This group consisted of the Society for Threatened Peoples, in cooperation with the Unrepresented Nations and Peoples Organization (UNPO), Anti‑Slavery International, IRA‑Mauritania, SOS‑Esclaves, and Kawtal Ngamyellitaare. Their report, titled “Slavery in Mauritania: The Roadmap to combat the vestiges of slavery is not being implemented convincingly,”  argues that the Roadmap has failed to effectively implement any of its goals. Speaking on behalf of the group, Johanna Green of the UNPO stated that “[t]he lack of implementation of the Roadmap clearly points to the absence of political and judicial will to address the problem of slavery which is exacerbated by the Mauritanian Government’s denial of its very existence.”[17] Her statement summarizes the critical position that many have taken to the Mauritanian government’s efforts, which is that there needs to be more support among government officials, judges, and attorneys in order to effectively enforce the goals involved in ending slavery.

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The ILO’s Africa director (Aeneas Chapinga Chuma,) stated that the ratification of the UN Protocol is “a first concrete step in putting in place the legal framework to protect people from the scourge of human exploitation and forced labor.[18] By essentially updating the Forced Labour Convention and improving laws to focus more on victims, states such as Mauritania will have more powerful enforcement mechanisms in place for ending slavery, a practice that is woven into the fabric of its culture.

Alison Aminzadeh is a third year law student at the University of Baltimore. She is currently a Rule 16 attorney working on the Human Trafficking Project as a part of the Civil Advocacy Clinic. She is also a Senior Staff Editor for the Journal of International Law, and the former President of the Students Supporting the Women’s Law Center.

[1] The other three countries are Norway, Niger, and Britain. Jasmine Nelson, Mauritania Joins Fight Against Modern-Day Slavery, Approves U.N. Treaty to End Trafficking, Atlanta Blackstar (Mar. 16, 2016), available at http://atlantablackstar.com/2016/03/16/mauritania-joins-fight-against-modern-day-slavery-approves-u-n-treaty-to-end-trafficking.

[2] International Labour Organization (ILO), Forced Labour Convention, C29, 28 June 1930, C29, available at http://www.refworld.org/docid/3ddb621f2a.html (accessed 21 March 2016).

[3] Atlanta Blackstar, supra note 1.

[4] Id.

[5] Ahmed Meiloud & Mohammed El Mokhtar Sidi Haiba, Slavery in Mauritania: Differentiating Between Fact and Fiction, Middle East Eye (last updated Apr. 21, 2015), available at http://www.middleeasteye.net/essays/slavery-mauritania-differentiating-between-facts-and-fiction-103800371.

[6] Id.

[7]Atlanta Blackstar, supra note 1.

[8]Id.

[9] Id.

[10] Mauritania Fails to Implement Roadmap to Combat Vestiges of Slavery, Unrepresented Nations and Peoples Organizations (Feb. 29, 2016), available at http://unpo.org/article/18958.

[11] Atlanta Blackstar, supra note 1.

[12] Id.

[13] Middle East Eye, supra note 5.

[14] Atlanta Blackstar, supra note 1.

[15] Alexis Okeowo, Freedom Fighter, New Yorker (Sept. 8, 2014), available at http://www.newyorker.com/magazine/2014/09/08/freedom‑fighter.

[16] Mauritania: A Journalist and Publisher Arrested for Accusing Judges of Corruption, African Press Organization (Jul. 22, 2008), available at https://appablog.wordpress.com/2008/07/22/mauritania-a-journalist-and-publisher-arrested-for-accusing-judges-of-corruption/.

[17] Unrepresented Nations and Peoples Organizations, supra note 12.

[18] Atlanta Blackstar, supra note 1.


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The War on Culture

Kia Roberts-Warren

The destruction of culture has become an instrument of terror, in a global strategy to undermine societies, propagate intolerance and erase memories. This cultural cleansing is a war crime that is now used as a tactic of war, to tear humanity from the history it shares,” (Irina Bokova, head of UNSECO).[1]

The destruction and looting of art is a widespread and systematic attack to erase people’s memories and identities. The Nazis destroyed and looted hundreds and thousands of books, art, and other cultural relics.[2] Paintings were vandalized during the armed conflict between Macedonia and the National Liberation Army[3] The siege of Dubrovnik, damaging the ancient Mostar bridge, and the Sarajevo national library during the Yugoslav wars.[4]

Terrorist organizations have put destruction of cultural heritage back on the war agenda. Since ISIS’ has taken over territory in Syria and Iraq, they have destroyed and looted numerous World Heritage Sites that the group deems idolatrous and blasphemous.[5] A World Heritage Site is determined by United Nations Educational, Scientific, and Cultural Organization (UNESCO) and is defined as “belonging to all peoples of the world, irrespective of the territory on which they are located.”[6] By historical standards, ISIS’ actions in Iraq are “on a rampage of destruction not seen since the Mongol’s sacking of Baghdad in 1258.”[7]

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Temple of Bel (or Baal) in Syria. The Temple was one of the main attractions Palmyra, a Roman-era trading outpost in the desert, northeast of Damascus, Syria

In Syria, ISIS has destroyed the ancient cities of Palmyra, Mar Elian Monastery, Apamea, Dura-Europos, and Mari.[8] In Iraq, ISIS has destroyed the oldest Christian monastery (Dair Mar Elia), Assyrian Empire artifacts in the Mosul Museum, Nineveh archeological site, razed the Tomb of Jonah and other religious sites, Nergal Gate (an entrance to the ancient Assyrian city of Nineveh, where the men use power tools to destroy a pair of massive statues of winged bulls with a human heads), and the Nimrud archaeological site.[9]

Moreover, the Sunni Muslim library, the Mosul Museum Library, and the library of the 265-year-old Latin Church and Monastery of the Dominican Fathers have also been heavily damaged. These libraries contained collections from the Ottoman Empire, Iraqi newspapers from the early 20th century, and other ancient texts were burned in the streets.[10] Irina Bokova stated that it was “one of the most devastating acts of destruction of library collections in human history.”[11] (You can see video here)

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A member of ISIS destroying an ancient Assyrian lamassu (screenshot from an ISIS propaganda video)

Intelligence officials say looting is the terror group’s second largest source of income after oil.[12] ISIS encourages civilians to plunder historic sites and then charges a 20 percent tax on anything they sell.

Last February the UN Security Council adopted a new resolution, UNSCR 2199, which was drafted by Russia and co-sponsored by the United States.[13] The Resolution prohibits the trade of artifacts illegally removed from Syria since 2011 and Iraq since 1990.[14] The UN General Assembly, also, passed a resolution called “Saving the Cultural Heritage of Iraq,” which states that ISIS’ actions may amount to war crimes as well as details about ISIS’s attacks on cultural heritage sites and demands its members be stopped and held accountable.[15]

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In the wake of ISIS’ cultural destruction, Italy has teamed up with UNESCO to create a task force.[16] This task force called The Peacekeepers of Culture, will be a 60-person team of art detectives from the art-squad police from Italy’s Carabinieri military police, historians, and Italian-trained restoration experts.[17] The goals of the peacekeepers are to protect ancient artworks, artifacts, and archaeological sites in conflict zones from extremists, protect against “cultural cleansing” and the fear-mongering propaganda, and to cut off some of the Islamic State’s funds acquired through the sale of looted artifacts, statues, and other antiquities on the black market.[18] It will establish facilities in Turin, where it will train cultural heritage protection experts. It aims to “assess risk and quantify damage done to cultural heritage sites, develop action plans and urgent measures, provide technical supervision and training for local national staff,” as well as help move some objects to safety.[19] The task force has not chosen a country for its first mission but is ready to go where UNESCO sends them.[20]

In April 2013, the Smithsonian Institute created the Safeguarding the Heritage of Syria and Iraq (SHOSI) Project. It provides emergency preservation work, conservation materials, and training to Syrian and Iraqi museums to help salvage damaged collections and sites.[21] In the summer of 2014, SHOSI held an emergency workshop in Syria. One of the missions was to provide equipment and supplies for workshop participants to secure the immovable mosaics collection at the Ma’arra Museum in Idlib Province. This museum housed one of the most important collections of third-to-sixth century Roman and Byzantine mosaics in the Middle East.[22]

This may seem to be weak enforcement on the part of the international community. However, destruction of art is as war crime under the Rome Statute of the International Criminal Court (ICC). Article 8 (2)(b)(ix) states: “Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”[23]

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Ahmad al-Faqi al-Mahdi, on trial at the International Criminal Court in The Hague

The ICC is currently hearing its first ever war crime trial addressing the destruction of cultural heritage.[24] Malian Jihadi leader, Ahmad al-Faqi al-Mahdi is accused of destroying ancient mausoleums in Timbuktu, specifically, medieval shrines, tombs of Sufi Saints, a 15th century mosque and over 4,000 ancient manuscripts were lost or destroyed all which were considered World Heritage sites.[25] This case is considered to be an important case at the ICC in fighting against war crimes directed at cultural heritage.[26] The last time a case like this was brought to trial was in 2013 when Balkan warlords were charged with the shelling Dubrovnik in the early 1990s, damaging the ancient Mostar bridge, and the Sarajevo national library by the International Criminal Tribunal for the former Yugoslavia (ICTY).[27]

When we think of atrocious crimes committed by ISIS, destruction of art and cultural sites are not on the list. We think of targeting civilians, rape, and general pillage. However, it is important because these sites aren’t just the destruction of Iraqi or Syrian history, but, rather history that belongs to the world. These artifacts and sites cannot be repaired or replaced. Once they are destroyed, they are gone completely. To let them perish at the hands of terrorists cannot go unpunished or unnoticed any longer.

Kia Roberts-Warren is a 2l at UB Law. She is concentrating in international law and business law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in private international law particularly trade and business as well as public international law. She also interested in fashion law and art law in the international context. Last spring, she was an extern at the Hudson Institute, a think-tank in DC that deals mainly with national security issues. Kia is currently the Career Development Director of ILS and recently participated in the 2016 Philip C. Jessup Moot Court Competition. She also plans on attending the Aberdeen Summer Abroad Program this  summer. 

 

[1] http://saudigazette.com.sa/world/mena/this-map-reveals-full-extent-of-daeshs-cultural-destruction/

[2] http://saudigazette.com.sa/world/mena/this-map-reveals-full-extent-of-daeshs-cultural-destruction/

[3] http://www.dailyevergreen.com/news/article_38faf3bc-da91-11e5-a5e1-fb5b07906df6.html

[4] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882

[5] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882

[6] http://whc.unesco.org/en/about/

[7] http://saudigazette.com.sa/world/mena/this-map-reveals-full-extent-of-daeshs-cultural-destruction/

[8] http://news.nationalgeographic.com/2015/09/150901-isis-destruction-looting-ancient-sites-iraq-syria-archaeology/

[9] http://nymag.com/daily/intelligencer/2015/03/isis-destroys-ancient-art.html#

[10] http://nymag.com/daily/intelligencer/2015/03/isis-destroys-ancient-art.html#

[11] http://nymag.com/daily/intelligencer/2015/03/isis-destroys-ancient-art.html#

[12] http://hyperallergic.com/183201/un-security-council-takes-aim-at-isis-antiquities-trafficking/

[13] http://hyperallergic.com/183201/un-security-council-takes-aim-at-isis-antiquities-trafficking/

[14] http://hyperallergic.com/183201/un-security-council-takes-aim-at-isis-antiquities-trafficking/

[15] http://hyperallergic.com/210944/un-says-isiss-cultural-destruction-may-amount-to-war-crimes/

[16] http://hyperallergic.com/276208/italy-and-unesco-establish-task-force-to-protect-cultural-heritage-in-conflict-zones/

[17] http://hyperallergic.com/276208/italy-and-unesco-establish-task-force-to-protect-cultural-heritage-in-conflict-zones/

[18] http://hyperallergic.com/276208/italy-and-unesco-establish-task-force-to-protect-cultural-heritage-in-conflict-zones/

[19] http://hyperallergic.com/276208/italy-and-unesco-establish-task-force-to-protect-cultural-heritage-in-conflict-zones/

[20] http://hyperallergic.com/276208/italy-and-unesco-establish-task-force-to-protect-cultural-heritage-in-conflict-zones/

[21] http://unitetosave.si.edu/projects/response/

[22] https://global.si.edu/success-stories/safeguarding-cultural-heritage-syria-and-iraq

[23] http://legal.un.org/icc/statute/99_corr/cstatute.htm

[24] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882

[25] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882

[26] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882

[27] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882


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Renunciations on the Rise: U.S. Natural Status Is Dangerous Under FATCA

 

Julia Brent

On March 18, 2010, President Obama signed a “jobs” bill into law, paid for by the revenue raising Foreign Tax Compliance Act (FATCA).  Execution of FATCA would access a deep pocket: there is an estimated $40 billion per year in international tax evasion.[i]  Thus far, the U.S. Treasury has taken in $800 million in FATCA-related revenue.[ii]  FATCA doesn’t change the obligations of U.S. taxpayers to pay their taxes on overseas earnings, but creates an enormous reporting obligation on 200,000 foreign financial institutions (FFIs) worldwide to pass on information from accounts of U.S. citizens to the IRS. [iii]  Failure to do report results in a 30% penalty on payments into the account, payable to the IRS.[iv]

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The simple solution is to take advantage of one of several U.S. Tax amnesty programs, and many are struggling to pay their taxes before the reporting begins.  However, the legislation has created complex problems for both the institutions and for taxpayers.  For example, an FFI to merely register its own company with the IRS (much less implement the giant reporting scheme) must master a 135-page guide of registration details.  Similarly, taxpayers face multiple forms and banker’s-box size submissions. For many, hiring an accountant to handle compliance is prohibitively expensive.[v] Some foreign individuals who were born in the U.S. but raised overseas by foreign parents don’t realize they have U.S. citizenship.  Some are “accidental Americans” because their parent was born in the U.S.  Staff at the IRS report that they have been overwhelmed by calls from Americans overseas regarding what they are supposed to furnish under FATCA.[vi]

The result of this high-consequence complexity is that many individuals overseas are eliminating their U.S. citizenship. Those that hold dual citizenship often are nationals with a quality country the EU, Canada, Australia, or New Zealand and are allowed travel without a visa through much of the world (including to the United States).[vii]  In the face of accessing the value of their U.S. passport, the conclusion by many is that there is a real danger.  Many institutions are ill-equipped to handle FATCA compliance, much less retracing steps to correct an error.  Already, the IRS has extended reporting deadlines because foreign governments and FFI’s haven’t finished developing IT systems, and aren’t prepared.  Some believe the scale of implementation is so large that the cost of implementing FATCA will “far outweigh the revenues.”[viii] Scotia Bank in Canada, alone, has already spent $100 million.[ix]  There is a high likelihood of a taxpayer getting caught between the cracks of an imperfect system, and being the victim of incorrect reporting, which comes with significant consequences.  An account holder does not have to be a U.S. citizen for their FFI to report them based on U.S. indicia the distinguishing information on their account.  U.S. indicia can mean as little as a U.S. telephone listed as contact information.  One would hope that if an account held by a true non-U.S. citizen was incorrectly reported as that of a U.S. citizen, the false report would be quickly corrected.  However, the sheer size of the players the IRS, state governments, and FFIs – creates a likelihood that corrections will take months, even years, to sort out in litigation against the IRS or a foreign tax administrator.

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In addition to imperfect reporting, those with American only or dual citizenship are concerned that FACTA requirements compromise privacy and the right to data protection as a taxpayer.  Many governments have executed Intergovernmental Agreements (IGAs), either without considering the rights of the individuals affected or complying by means of what is essentially coercion.[x]  Privacy issues for Canadians have been raised by former Canadian Finance Minister, Jim Flaherty.  His concern is the “far reaching and extraterritorial implications” of FATCA which, in effect, mandate that Canadian banks become extensions of the IRS and jeopardize Canadians’ privacy rights.[xi] Banks in Canada are not required to know the nationality of their clients, and, to conform to FATCA, Canada would have to change its privacy laws.[xii]  All the countries under the Model 2 International Governmental Agreements (IGA’s) have laws which either prevent disclosure or require individual consent.[xiii]  The difficulty with consent is that in many cases it is logistically impossible.  For example, Japanese banks have several hundred million bank accounts, not digitized, all with opening forms in Japanese.[xiv]

FATCA has changed Americans into outsiders in the international financial world.[xv]  As one officer of a global bank reported, the banks are ridding themselves of the “U.S. Person pollution!”[xvi] American Citizens Abroad (ACA) has received multiple testimonies from Americans abroad who have had their foreign bank accounts closed, been refused entry into a foreign pension fund, or who cannot enter into insurance contracts overseas.[xvii]  Some claim that “American citizens are being denied savings accounts, investment accounts, mortgages, credit cards and many of the basic financial services required to live and work in modern society, raise a family and to save for retirement.”[xviii] This is due to the fact that, while there are 780 million American bank clients overseas,[xix] this number is a drop in the bucket for banks who serve a much higher number of non-Americans.

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These difficulties explain why the amount of renunciations since FATCA was implemented has quadrupled.[xx]  Renunciations have caused such a backlog of paperwork that, in November last year, the fee for renunciation was increased by 400%.[xxi] The U.S. response has been inadequate:  Robert Stack, Treasury Deputy Assistant Secretary of International Tax Affairs, described the claim that Americans living abroad will give up their U.S. citizenship because of liabilities and burdens created by FATCA as Myth No. 3.[xxii]  Meanwhile, the New York Times reports, “The bureaucratic burden of identifying, verifying and reporting has caused many banks to regard American clients, particularly those of moderate means, as more trouble than they are worth.”[xxiii]

There is currently a push to make renunciation “easy and harmless,” financially and mentally, since new regulatory burdens on non-resident US citizens make living with that status nearly impossible.[xxiv]  Recently, a “renunciation meeting” was held in Canada, the first of its kind, to permit 22 Americans together to renounce their U.S. Citizenship, in spite of the $2,350 fee and paperwork. Tara Ferris, then Senior Counsel at Chief Counsel IRS, and others did an outstanding job in drafting the internal revenue rules and regulations of FATCA, an unprecedented behemouth of legislation.  However, the code implements policies that have significant unintended consequencesMass renunciations, a sort of reverse of our naturalization ceremonies, may become a thing of the future.[xxv]

[i] http://www.fas.org/sgp/crs/misc/R40623.pdf, Summary

[ii] Id.

[iii] http://www.acfcs.org/fatca-may-identify-tax-cheats-but-its-dragnet-for-financial-criminals-may-produce-an-even-bigger-yield/

[iv] http://fatca.thomsonreuters.com/about-fatca/

[v] http://cnsnews.com/news/article/gabrielle-cintorino/tax-laws-pushing-americans-living-abroad-renounce-their-us

[vi] http://www.bloomberg.com/news/features/2015-04-08/an-emotional-audit-irs-workers-are-miserable-and-overwhelmed

[vii] http://opiniojuris.org/2012/01/08/fatca-fallout-mass-renunciations/

[viii] http://www.acfcs.org/fatca-may-identify-tax-cheats-but-its-dragnet-for-financial-criminals-may-produce-an-even-bigger-yield/

[ix] http://business.financialpost.com/news/fp-street/electronic-spying-a-big-issue-for-banks-scotia-ceo-waugh-says

[x] http://www.keepcalmtalklaw.co.uk/accidental-americans-the-us-citizenship-conundrum/

[xi] http://sundominica.com/articles/fatca-and-you-1462/

[xii]http://web.archive.org/web/20130601041733/http://americansabroad.org/issues/fatca/fatca-is-bad-for-america-why-it-should-be-repealed/

[xiii] https://www.irs.gov/Businesses/Corporations/FATCA-Governments

[xiv] http://web.archive.org/web/20130601041733/http://americansabroad.org/issues/fatca/fatca-is-bad-for-america-why-it-should-be-repealed/

[xv] Id.

[xvi] http://www.finance.senate.gov/imo/media/doc/Republicans%20Overseas,%20Inc.1.pdf, page 3

[xvii] Id.

[xviii] http://www.finance.senate.gov/imo/media/doc/Republicans%20Overseas,%20Inc.1.pdf

[xix] http://money.cnn.com/2016/02/08/news/americans-citizenship-renunciation/

[xx] http://intltax.typepad.com/intltax_blog/2016/02/new-expatriate-record-2015-nearly-4300-expatriations.html

[xxi] http://www.bbc.com/news/35383435

[xxii] https://www.treasury.gov/connect/blog/Pages/Myth-vs-FATCA.aspx

[xxiii] http://www.nytimes.com/2015/05/14/opinion/an-american-tax-nightmare.html?_r=0

[xxiv] http://www.keepcalmtalklaw.co.uk/accidental-americans-the-us-citizenship-conundrum/

[xxv] http://opiniojuris.org/2012/01/08/fatca-fallout-mass-renunciations/


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Faux-Pas Fashion “Caveat Emptor”: Let The Buyer Beware

Kia Roberts Warren

Growing up in one of the fashion capitals of the world (NYC), I am, admittedly, a bit of a fashionista. I learned at a very young age that if you go down to Canal Street and enter a store looking for a Chanel boy bag that someone will take you to the small back room or a van filled with every designer name imaginable. This is the second oldest profession: counterfeiting. Many consumers believe that these counterfeiters are doing a service because consumers do not want to pay an exorbitant price for the real thing. However, counterfeiting is not a victimless crime.

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A counterfeit is a trademark infringement, a manufactured good being passed off as an original under the trademark.[1] This is harmful to luxury brands because their trademark is their business. Luxury brands rely on their trademarks to attract consumers and the brand mark signals to consumers the high quality of their products. Counterfeiting hurts the economy. The United States economy loses up to $250 billion in sales each year and 750,000 jobs lost.[2] In 2015, the EU economy reported a value 9.7% of their total sales every year or $28.7 billion and 363,000 jobs lost.[3]KRW Blog2_Photo2

Counterfeiting is a $600 billion industry and represents 5-7% of total world trade.[4]  And, these numbers are only increasing due to modern technology and the Internet. Because consumers can now shop within their own homes, counterfeit sales are on the rise because companies cannot watch the internet 24/7 looking for counterfeit sites [5] In 2007, for example, $119 billion worth of knock-off merchandise were purchased on the web.[6]

If clothing does not interest you like it does me, just know that more than clothing and handbags are counterfeited. Counterfeits have spread to toys, electronics, cosmetics, and pharmaceuticals,[7] many of which are sold through legitimate retail stores and websites.[8] These are public safety issues; these counterfeits are made with hazardous materials to the environment and to people’s health. Counterfeit luxury goods, also, have serious criminal ramifications that are not known to most consumers.

Bangladesh

Shakil Khan, 10, has worked for 4 months in a garment factory in Old Dhaka, making money for his impoverished family in Chandpur, Bangladesh. Nafeesa Binte Aziz/Toronto Star

Counterfeit luxury goods aren’t just hurting the economy, but promote child labor exploitation, human trafficking, drug trafficking, and even terrorism as well as other civil, criminal, and administrative crimes.[9] A Vietnamese crime gang leader earned $13 million selling counterfeit watches in New York.[10] Children, as young as six, are treated to excessively cruel and criminal treatment.[11] Forced laborers are smuggled into the country with the products to sell them and to place the finishing touches on the goods after getting across the borders.[12] There have been reports of authorities uncovering operations where proceeds from drug trafficking were channeled into counterfeiting and, vice versa, where profits from the sale of counterfeit goods were used to further other illicit operations.[13] The FBI has evidence that the World Trade Center 1993 bombing was financed with counterfeit luxury goods on Canal Street.[14] In 1996, the FBI found that followers of Sheik Omar Abdel Rahman, a blind cleric who was sentenced to 240 years in prison for plotting to bomb New York City landmarks, had made millions of dollars selling counterfeit t-shirts bearing Nike and Olympics logos.[15]

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So what can be done to protect fashion maisons and stop crime? Louis Vuitton employs about 40 lawyers, 250 independent investigators, and spends over $20 million each year to fight counterfeiting of its products.[16] Fashion maisons also turn to MarkMonitor (a corporation that accesses data and detects unauthorized channels and shuts them down) for help.[17] Of course, all of these costs get passed on to the consumer. There are also national laws in place. For example, the U.S. enacted the Lanham Act and Copyright Act of 1976.[18] In France, consumers can be forced to pay a costly fine and possible jail time for owning a counterfeit.[19] This idea is catching on in Italy and Britain as well. The European Union has placed two new regulations dealing with counterfeits.[20] On the international level there is International Anti-Counterfeiting Coalition (IACC), Office for Harmonization in the Internal Market, Anti-Counterfeiting Group, International Intellectual Property Alliance. The World Trade Organization has its members sign the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement.[21]

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In 2008, Louis Vuitton sued eBay in a French court. The French court ruled that eBay did not do enough to prevent the counterfeit sales from occurring on the site and eBay was ordered to pay $60.8 million in damages.[22] In a UK court, Cartier and Montblanc were recently granted orders ruling Internet providers to block websites selling counterfeit watches under their trademark.[23] Moncler has recently become victorious in the judicial arena. The Uniform Domain Name Dispute Resolution Policy under the World Intellectual Property Organization (WIPO) granted the transfer of 50 domain names incorporating its trademark.[24] In its case against Royalcat (a Chinese company), the Beijing IP Court awarded the maximum statutory damages in a trademark infringement action.[25]

As consumers we have the power to stop the counterfeiting industry. We are hurting ourselves. We have a responsibility to protect ourselves and each other. So, if you see someone considering buying a counterfeit Prada tell them “caveat emptor.” We need to educate each other about where and who are money is going to.

For more info on how to spot a fake, click here.

Kia Roberts-Warren is a 2l at University of Baltimore. She has always had an interest in international affairs. She is interested in private international law as well as international humanitarian law. She is on the executive board of ILS as the Career Development Director and is on the Phillip C. Jessup Moot Court Team.

[1] http://www.oecd.org/sti/ind/2090589.pdf

[2] http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1254&context=honors

[3] http://qz.com/460932/fakes-are-costing-europes-fashion-industry-10-of-its-sales-and-thousands-of-jobs/

[4] http://michiganjb.org/issues/1/article4.pdf

[5]http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1254&context=honors

[6] http://michiganjb.org/issues/1/article4.pdf

[7] https://www.iwu.edu/economics/PPE17/lewis.pdf

[8] https://www.iwu.edu/economics/PPE17/lewis.pdf

[9]  https://www.unodc.org/documents/counterfeit/FocusSheet/Counterfeit_focussheet_EN_HIRES.pdf

[10] https://www.iwu.edu/economics/PPE17/lewis.pdf

[11] https://www.unodc.org/documents/counterfeit/FocusSheet/Counterfeit_focussheet_EN_HIRES.pdf

[12] https://www.unodc.org/documents/counterfeit/FocusSheet/Counterfeit_focussheet_EN_HIRES.pdf

[13] https://www.unodc.org/documents/counterfeit/FocusSheet/Counterfeit_focussheet_EN_HIRES.pdf

[14] http://michiganjb.org/issues/1/article4.pdf

[15] http://michiganjb.org/issues/1/article4.pdf

[16] http://michiganjb.org/issues/1/article4.pdf

[17] http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1254&context=honors

[18] http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1254&context=honors

[19] http://crefovi.com/articles/fashion-law/efficiently-fight-counterfeiting-fashion-luxury-sectors/

[20] http://crefovi.com/articles/fashion-law/efficiently-fight-counterfeiting-fashion-luxury-sectors/

[21] http://www.oecd.org/sti/ind/2090589.pdf

[22] http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1254&context=honors

[23] http://www.thefashionlaw.com/home/cartier-wins-court-order-blocking-sites-selling-fakes

[24] http://www.wipo.int/amc/en/domains/search/text.jsp?case=DNL2015-0031

[25] http://www.worldtrademarkreview.com/Magazine/Issue/59/News/Beijing-IP-Court-grants-maximum-amount-of-statutory-damages-for-the-first-time


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Restricting Schengen – Keeping out Refugees

Raiven Taylor 

Recently, European countries have come up with plans to keep migrants out. In June of 2015, the EU had an emergency meeting and came up with a “10-point plan” to “capture and destroy” boats used to smuggle in migrants.[i] Not long after this plan hatched, Hungary and other European countries erected wire fences to keep migrants out. [ii] Germany, Denmark, Austria and a few other countries suspended their willingness to adhere to the Schengen rules and reintroduce border controls.[iii] The Schengen treaty allows for open travel in the 26-nation bloc known as the Schengen area.[iv] This area, created in 1995 and originally consisting of 26 EU nations, abolished passport controls at common borders.[v] The recent suspension of this was thought to shock the rest of EU when it came to border controls to deal with the migration crisis. Because Germany borders nine other countries, without its participation, Schengen fails.[vi] This led other countries to begin closing their borders, criminalizing most new arrivals as illegal immigrants.[vii] With all of the changes, it has been difficult for migrants to find a country that will allow them to enter. This also makes it difficult for those countries that CAN take these immigrants into their territory because resources are tight. As of September 2015, 63,000 asylum seekers from Hungary and Austria entered Bavaria, which is more than the total of asylum seekers for the enter year of 2014.[viii]

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The EU proposed a deal with Turkey, promising $3.3 billion for it to close down its borders.[ix] Denmark has also passed a law allowing it to seize valuables from asylum seekers in order to pay for their upkeep.[x] All of this is leads to bigger problems because even though countries are locking down their borders, migrants are finding other, often very dangerous ways, to get in anyway. On February 12, 2016 the UN High Commission for Refugees (UNHCR) expressed its concern for the increasing restrictive measures on the part of EU states, stressing that something must be done to protect the fundamental human rights of the people trying to reach Europe.

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Spokesperson for the Office of the UN High Commissioner for Refugees (UNCHR) stated that more than 80,000 migrants arrived in Europe by boat in the first 6 weeks of 2016, with 400 dying in their attempt. Statistics show that 58 percent of migrants coming to Europe are women and children. One in 3 people arriving in Greece are children, compared to the 1 in 10 in September 2015.[xi] It has also been reported that two children drown every day, on average, since September 2015 as their families attempt to cross the Mediterranean Sea, totaling more than 340 children.[xii] UNCHR and the UN Children’s Fund (UNICEF) urge countries to cooperate and make dangerous journeys like this safer for children.[xiii]

A UN Special Rapporteur on Human Rights of Migrants, François Crépeau, stated that although “Europe has always been a strong advocate of human rights in Europe and elsewhere… its struggle to maintain control of its borders however…is being tested…[and by]stripping away the rights of asylum-seekers and migrants, Europe is creating a scary new ‘normal.’”[xiv] Over-reliance and securitization of borders will not work to keep migrants out because they will find another way in order to survive, allowing smugglers to continue to adapt, prosper, and exploit migrants.[xv] In order to combat smuggling, states must provide regular, safe and cheap mobility solutions, including both identity and security checks.[xvi]

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The European public, predominantly, has the view that Europe needs stricter controls, bigger fences, and more military control.[xvii] Although the public might favor these stricter policies, politicians view them as an immoral and an unworkable approach.[xviii] The question is how will European countries pursue this issue and in what ways will immigration be affected long term? Will countries continue keeping its borders open? Will countries continue with daily limits on migrants? I believe countries should find a less dangerous way for migrants to travel while also coming up with a way to stem the tide of migration. It is somewhat understandable for countries to not want to be overpopulated and have an extra burden on state-run agencies. However, risking the lives of migrants is not the way to overcome this problem. Many organizations are attempting to convince the politicians to work this issue out as peacefully as possible and in a way that lessens the dangers for migrants. Something needs to be done – sooner, rather than later!

[i] http://www.theguardian.com/commentisfree/2016/jan/31/europe-bind-act-morally-on-immigrants-heed-its-citizens

[ii] Id.

[iii] Id.

[iv] http://www.theguardian.com/world/2015/sep/13/germany-border-crackdown-deals-blow-to-schengen-system

[v] http://www.theguardian.com/commentisfree/2016/jan/31/europe-bind-act-morally-on-immigrants-heed-its-citizens

[vi] http://www.theguardian.com/world/2015/sep/13/germany-border-crackdown-deals-blow-to-schengen-system

[vii] Id.

[viii] Id.

[ix] http://www.theguardian.com/commentisfree/2016/jan/31/europe-bind-act-morally-on-immigrants-heed-its-citizens

[x] Id.

[xi] http://www.un.org/apps/news/story.asp?NewsID=53217#.VsxxWMfiQtg

[xii] http://www.un.org/apps/news/story.asp?NewsID=53272#.VsxxYsfiQtg

[xiii] Id.

[xiv] http://www.un.org/apps/news/story.asp?NewsID=53217#.VsxxWMfiQtg

[xv] id.

[xvi] Id.

[xvii] http://www.theguardian.com/commentisfree/2016/jan/31/europe-bind-act-morally-on-immigrants-heed-its-citizens

[xviii] Id.