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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Nowhere to Call Home: The sad state of the Island of Hispaniola

Carolyn Mills

Many know it as a beautiful vacation paradise, the Dominican Republic wrought with its lush greenery and beaches, perfect beach getaways and Groupon vacation packages. This summer a disturbing, and not very publicized trend, was happening—the Dominican Republic deported nearly 130,000 Haitians (with whom it shares the island). Why? The answer may alarm you.

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What’s happening?

Since May 2015, nearly 106,000 Haitians were deported or left the Dominican Republic. [1] In 2013, a Dominican court ruling said that, anyone born in the Dominican Republic to “parents without legal residency would no longer be considered Dominican.” [2] As a result of this ruling, nearly 250,000 people became stateless. Those affected were offered a one year, temporary residency card even though they had been born and spent their entire lives in the Dominican Republic. [3] Unfortunately, many of those stripped of their Dominican citizenship are not citizens of Haiti either. [4]

After the court ruling, the legislature made a lackluster effort to ameliorate the devastation caused by enacting Law 169-14. The law placed the burden on the victims, demanding they provide record of their birth in the Dominican Republic.  [5] This, seemingly, good faith measure to assist those disenfranchised Dominicans is hardly altruistic, as many Haitians were denied the ability to register the births of their children simply because they were of Haitian descent. [6] When the registration deadline expired under Law 169-14, many were forced flee to Haiti, or were rounded up by police and forcibly deported. [7] These laws closely mirror that of The Nuremburg Laws of 1935, which essentially stripped the Jews living in Germany of their German citizenship.   It is alarming that a court decision in 2013 can be so reminiscent of such days.  If left unchecked, it’s unimaginable what the ramifications could be. 

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Further, the court ruling is a direct violation of the Universal Declaration of Human Rights. Article 15 states, “Everyone has the right to a nationality, and no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” [8]  Additionally, the United Nations in 1954 Convention Relating to the Statelessness of Persons and defined statelessness and established a minimum number of rights for these individuals including: education, employment and housing—all of which have been deprived from those of Haitian descent who are being forced to leave their homes and communities. In 1961, the Convention on the Reduction of Statelessness went on stress the importance of states establishing measures in which to avoid stateless persons; establishing the right to nationality.

Origins

Called the Dominican Republic’s “most serious human rights problem,” [9] discrimination against Haitians and those of Haitian descent finds its roots in history.[10] The two nations maintained a close relationship, with many Haitians supporting the growing Dominican economy by providing labor for sugar plantations, and development of infrastructure. There was a history of disdain for Haitians in the Dominican and in 1937 it came to an ugly head when, the government conducted a mass genocide of nearly 30,000 Haitian immigrants and their Dominican children, known as the Parsley Massacre. [11]  The massacre was spearheaded by former dictator Rafael Trujillo who was a staunch xenophobe. During the massacre, military officials were instructed to ‘test’ those suspected of being Haitian by holding up a sprig of parsley and asking them what it was. If the person did not roll the ‘r’ in the word, (“perejil”) they were killed.

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This ethnic cleansing, while no longer of genocidal proportions, has become a form of institutionalized racism.  The sad part is, there has been little to no oversight. With a country as poor as Haiti, there is little that can be done to remedy the damage that has been caused. Most recently the Dominican Foreign minister stressed importance, “for each state to exercise its sovereign right to determine whose admitted to its territory…” [12] reinforcing their stance on this issue.

What needs to be done?

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The Inter-American Court of Human Rights has decried the Dominican’s practice.[13] The Dominican Republic has also faced pressure from the United States Department of State and such prominent NGOs as Amnesty International and Human Rights Watch. Amnesty has characterized the mass deportations as, “catastrophic” as there is no real capacity for Haiti to provide protection to the vulnerable masses. [14] This harm, left without remedy, will allow impunity for government leaders and leave a generation in limbo. One route for displaced Haitians to take is to launch a complaint with the Human Rights Council, an organ of the United Nations. This organ comprised on 47 member states is responsible for the strengthening, promotion and protection of human rights and allows for individual complaints. [15] Additionally, both the UN High Commission for Human Rights and the UN High Commission for Refugees have been vocal about the Dominican court ruling, but with little effect. [16] Without the intervention of the international community, there may be no foreseeable solution to the centuries of strife between the two nations.

Carolyn Mills is a 3L at the University of Baltimore School of Law. Carolyn is a graduate of Bowie State University with a degree in Political Science. Carolyn was previously  2L representative for the International Law Society. She is currently the President of the Immigration Law Society. Her interests and focus areas are on Central America and West Africa. Last semester, Carolyn was a law clerk for the Department of Homeland Security’s Human Rights Law Section.This past summer she studied abroad in Ghana at the Ghana Institute of Management and Public Affairs (GIMPA) in conjunction with Fordham’s Law School. Additionally Carolyn is a Rule 19 Student Attorney for the Immigrant Rights Clinic. Her interest in international law is international human rights law and its application abroad.  

[1] http://timesofindia.indiatimes.com/world/rest-of-world/130000-Haitians-face-deportation-from-Dominican-Republic/articleshow/52844684.cms

[2] Id.

[3] Id.

[4] http://www.truth-out.org/news/item/35519-the-dominican-republic-is-deporting-its-haitian-residents

[5] Id.

[6] Id.

[7] http://pulitzercenter.org/reporting/deported-their-own-country

[8] http://www.un.org/en/universal-declaration-human-rights/index.html

[9] http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper

[10] http://pulitzercenter.org/reporting/deported-their-own-country

[11] Id.

[12] http://www.dominicantoday.com/dr/local/2016/9/20/60646/Dominican-Republic-stresses-its-right-on-immigration

[13] http://www.statelessness.eu/blog/inter-american-court-condemns-unprecedented-situation-statelessness-dominican-republic

[14] https://www.amnesty.org/en/latest/news/2016/06/haiti-dominican-republic-reckless-deportations-leaving-thousands-in-limbo/

[15] http://www.ohchr.org /EN/HRBodies/HRC/Pages/AboutCouncil.aspx http://www.democracynow.org/2015/6/17/the_dominican_republics_ethnic_purging_edwidge

[16] http://www.un.org/apps/news/story.asp?NewsID=49285#.V-64FogrLcs; http://www.un.org/apps/news/story.asp?NewsID=51198#.V-61aYgrLcs; http://www.unhcr.org/558417759.html

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My Hair Is Beautiful Too: The Plight of the Black Girls in South Africa and the US

J. Michal Forbes

Both the US and South Africa are parties to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which aims to eliminate racial discrimination and promote understanding amongst all races.[i] In fact, both countries have representatives on the Committee on the Elimination of Racial Discrimination, which is tasked with implementing the ICERD and meets twice a year to work on resolving international issues of discrimination. One issue that has emerged recently that could have wider implications for both state parties is hair style enforcement in public schools.

In the last 6 weeks there have been controversies in the US and in South Africa regarding school policies discriminating against hairstyles worn by black students. School administrations came under scrutiny for both blatant and subtle policies that did not accommodate for reasonable ethnic and cultural practices.

In Pretoria, South Africa, the students at the Pretoria High School for Girls (“PHSG”) alleged that school officials were telling them to straighten their hair. This news took Twitter by storm and the hashtag #StopRacismAtPetoriaGirlsHigh nearly broke the Internet. An online petition started, which now has over 32,000 signatures, claims that the school’s code of conduct discriminates against Black and Muslim girls, the students are banned from speaking in African languages (such as Xhosa, Sotho, Zulu and Venda) at school, and students are prohibited from socializing with one another.

On its face, the school’s policy is not blatantly discriminatory. However, it does imply that African hair in its natural state is “messy.[ii]”  The school’s code of conduct policy states that cornrows and braids were allowed be only a maximum of 10 millimeter in diameter, go straight back, and have no beads or decorations. Hairstyles should be conservative and neat and students should refrain from any kind of eccentric fashion styles. However, what constitutes eccentric? What constitutes a style that is fashionable?

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Looking closely at the language in the school’s policy, many popular styles that black teenager girls would wear would be deemed inappropriate under the policy. Typically black teenagers, in both the US and South Africa wear extensions, beads, Afros or even patterned cornrows in their hair. Under the policy, all of those hairstyles are prohibited.

As a result of international media attention to these issues, PHSG stated that they plan on revising the Code of Conduct and would look for input from all of the students, regardless of ethnicity, and their parents.[iii]  PHSG also reported that they needed to “end all hostilities” and resume classes as normal.

This situation isn’t too far removed from instances in the United States. This past July, Butler Traditional High School in Louisville, Kentucky decided “dreadlocks, braids, twists, and “cornrolls” (they likely meant cornrows) are “extreme and distracting and not allowed to be worn by any of its students.[iv] Essentially, the school banned hairstyles primarily worn by the school’s black population. This wording went unchallenged until the sole black female in the Kentucky State House took to Twitter to display her disgust and disappointment.

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A month later, the school suspended the policy and updated it to better reflect its student population. However, the original policy and the outrage it caused gained little to no media coverage. In fact, most of the time when black students in the US face discrimination in schools, there is no international media coverage.[v]

The blatant ban against black hairstyles in Kentucky and the implied ban against black hairstyles in South Africa are similar. Yet, why does the incident in South Africa receive significantly more coverage and press? News outlets such as NPR, CNN and the Washington Post all covered the issue. But, the incident in Kentucky was covered only by local newspapers and Essence Magazine.

Why is this a bigger deal in South Africa? Perhaps it is that the US is seen worldwide as a melting pot where all racial groups are treated equally.  South Africa is still a fairly new democracy, with apartheid ending less than 25 years ago. It may also be that in South Africa, black Africans make up 76% of the population versus, in America, blacks make up a mere 12.3% of the population.[vi]

When the Committee on the Elimination of Racial Discrimination meets again in May 2017, it will be interesting to see if the banning of black hairstyles is discussed. Considering that the U.S. Court of Appeals recently ruled that it is legal for businesses to discriminate against employees with dreadlocks, the world should be paying attention to the work of the Committee next year and any potentially impacts this judicial decision could have.[vii] If this issue is not resolved across the globe, black hair will continue to be seen as unruly, untamed and naturally untidy, instead of as BEAUTIFUL.

J. Michal Forbes is a proud native of Prince George’s County, Maryland, Ms. Forbes has a fiery passion for international law, travel and frozen yogurt. After receiving her B.A. in Political Science from the University of Maryland, Baltimore she taught ESOL in the Washington, D.C. Metropolitan area before joining the US Peace Corps in 2011. Ms. Forbes served in the Peace Corps in Ukraine from 2011 to 2013, in a small town between the Red Sea and the Black Sea in Crimea. Fluent in Russian, Ms. Forbes soon caught the travel bug and traveled/worked extensively throughout Eastern Europe during her 27 month commitment. Currently a 3L, Ms. Forbes is a member of the International Law Society, Immigration Law Society, Black Law Student Association and the Women Lawyers as Leaders Initiative. She has worked for Maryland Legal Aid and the NAACP’s Office of the Attorney General. She was recently awarded the honor of being named Article Editor with the University of Baltimore Law Forum, a scholarly legal journal focused on rising issues in Maryland. It is her dream to work for the U.S. government assisting with asylum seekers and refugee. 

In her free time, Ms. Forbes enjoys eating frozen yogurt with her husband and learning Arabic.

[i] Parties to the International Convention on the Elimination of All Forms of Racial Discrimination“. United Nations Treaty Collection.

[ii] S Africa: Black students protest ‘racist’ hair ruleshttp://www.aljazeera.com/news/2016/08/africa-black-students-protest-racist-hair-rules-160829083905084.html.

[iii] The Way Forward Letter, http://www.phsg.org.za/uploads/cms/files/way_forward_letter.pdf.

[iv] Kentucky High School’s Dress Code ‘Stinks of Racism,’ Bans Dreadlocks, Cornrows And Braids, http://www.essence.com/2016/07/28/kentucky-high-school-bans-natural-hairstyles-racism.

[v] See 6 Times Black Kids Faced Discrimination in School, http://www.huffingtonpost.com/entry/6-times-black-kids-faced-discrimination-in-school_us_562f882fe4b06317990f5a4b.

[vi] See Mid-year population estimates available at http://www.statssa.gov.za/publications/P0302/P03022013.pdf; Census: White majority in U.S. gone by 2043, http://usnews.nbcnews.com/_news/2013/06/13/18934111-census-white-majority-in-us-gone-by-2043.

[vii] Federal Court Rules It Legal to Discriminate Against Employees With Dreadlocks, http://www.cosmopolitan.com/style-beauty/beauty/a3616858/dreadlocks-discrimination-case/.


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Labor Activism Brings Spotlight to Freedom of Speech

Daniel Huchla

Have you ever wondered how your food is made?  More specifically, have you ever wondered if your food is produced ethically? There is one approach that aims to promote compliant business.[i]  The second approach is to expose unethical business practices through investigative journalism. For attempting to expose allegedly unethical practices Andy Hall faced the prospect of up to seven years in prison on the basis of the Thai law of defamation. What about freedom of speech and the press? Using U.S. law as a model, Thailand should modify its law to eliminate the possibility of criminal liability for defamation.

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Photo Credit: Kevin Casper – Public Domain Pictures

 

Andy Hall, a British lawyer and academic, collaborated with Finnwatch, a Non-Governmental Organization based in Finland, as a researcher on labor standards in the Food Industry in Thailand.[ii]  This venture resulted in the 2013 publication “Cheap Has a High Price”, exposing immigration and labor issues related to specific producers of tuna and pineapple products in Thailand.[iii]  As a result, Natural Fruit Company Ltd. lost business and brought suit against Andy Hall in Thailand alleging defamation.[iv]  During the course of the multiyear litigation there was a degree of public outcry from elements of the international community on Andy Hall’s behalf.[v] On September 20, 2016, the Bangkok South Criminal Court found Andy Hall guilty of criminal defamation and cybercrimes.[vi]  Hall received a suspended three year sentence and a 150,000 baht ($4,300) fine.[vii]  But, civil liability still looms in the distance, especially if Thailand follows res judicata, by which Hall could be precluded from arguing his civil liability since he has already been found criminally liable, which presumably has a higher standard of proof.[viii]

 

As a  sovereign nation, Thailand has control over the laws and their application within its borders. The issue of domestic sovereignty echoes the common phrase “When in Rome do as the Romans do.”[ix] Under Thai law, defamation can result in criminal and civil liability.[x] Criminal defamation is defined as “imput[ing] anything to the other person before a third person in a manner likely to impair the reputation of such other person or to expose such other person to be hated or scorned.”[xi] Because Mr. Hall’s work was published online (albeit in Finnish), he was additionally subjected to liability under the Computer Penal Code, which has stiffer penalties.[xii]

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Photo Credit: MBogdan – Mary’s Rosaries

Thailand does allow defenses in actions for defamation. A defendant may prove the truth of his statement, or if the plaintiff is a “subject of public criticism” the defendant may assert the statement was a “fair comment” made in “good faith.”[xiii]  In the case of Andy Hall it is uncertain where the gap exists that the defense of truth was unsuccessful. But, there has been criticism regarding the limited sample size for interviews, leading one to believe that the facts may not be inherently false, but just overgeneralized.[xiv]  That this is sufficient to find liability is an unfortunate byproduct of a system that places the burden upon the defendant to prove truth.

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What if Andy Hall had investigated a company in the United States instead? Under United States law, the company as Plaintiff would have to show that a false statement was made.[xv]  Changing the burden of proof in this instance would have drastic effect. If the publication was just overgeneralized, it would be equally difficult to prove the statement was false in the United States as it was to prove that it was true in Thailand. Even if the company were able to prove the statement to be false there are further protections for speech in the United States. Depending on whether the company is considered private or public, they would additionally be required to show either negligence or knowing culpability (“actual malice”) on behalf of Mr. Hall.[xvi] With all these protections, Mr. Hall likely would not have been found civilly liable for defamation in the United States. Within the U.S., there are several states that allow for criminal liability for defamation; but, these laws are confined by the same robust protections as civil defamation.[xvii]

However, these protections have not always existed in the United States. The law of defamation has evolved massively over the past sixty years in the United States. Prior to 1964, defamation allowed for per se liability.[xviii] Under this system, falsity was the only thing that needed to be proved.[xix] We don’t have to look very far in United States history for some level of liability to be foreseeable. This change additionally reflects that legal reform is possible and valuable.

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Going forward, what should be the reform priorities on this issue in Thailand? Ideally, the burden of proof should be shifted from the Defendant to the Plaintiff. Placing the burden upon the defendant can have a chilling effect on speech. The burden of proof coupled with criminal responsibility for defamation is guaranteed to limit speech. In this regard, Andy Hall is just the tip of the iceberg; a Thai woman is facing similar criminal charges for attempting to bring light to the alleged graphic murder of her relative.[xx]

Daniel Huchla is a third year law student at the University of Baltimore and a graduate of Miami University with a Bachelor of Music. During his undergraduate studies, he performed in an International Opera Festival located in Brazil. He also serves as Associate Managing Editor for the University of Baltimore Law Review. Areas of interest include Administrative Law, International Humanitarian Law, International Criminal Law, and National Security Law. He is currently a Law Clerk with the Law Offices of McCabe, Weisberg & Conway.

[i] http://fairtradeusa.org/about-fair-trade-usa/mission

[ii] http://www.finnwatch.org/en/news/408-andy-hall-found-guilty-in-a-shock-ruling-by-bangkok-court

[iii] http://www.bbc.com/news/world-asia-37415590

[iv] Id.

[v] See e.g. https://www.walkfree.org/andy-hall/

[vi] BBC, supra note iv.

[vii] Id.

[viii]  Finnwatch, supra note iii; see e.g. Taylor v. Sturgell, 553 U.S. 880 (2008).

[ix] http://www.phrases.org.uk/meanings/when-in-rome-do-as-the-romans-do.html

[x] See Finnwatch, supra note iii.

[xi] https://www.samuiforsale.com/law-texts/thailand-penal-code.html#325

[xii] https://www.samuiforsale.com/law-texts/computer-crime-act.html

[xiii] http://kellywarnerlaw.com/thailand-defamation-laws/

[xiv] http://www.dw.com/en/rights-activist-andy-hall-sentenced-for-defaming-thailand-fruit-company/a-19562755

[xv] See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); 1 Law of Defamation § 5:13 (2d ed.).

[xvi] 1 Law of Defamation § 1:34 (2d ed.)

[xvii] http://www.firstamendmentcenter.org/criminal-libel-statutes-state-by-state

[xviii] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[xix] Id.

[xx] http://www.prachatai.com/english/node/6590


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In Defense of Villainy

Esther-Jane Grenness

Mr. International-Lawyer sits down at his desk and boots up his laptop. As is his usual practice, he opens his email and sips his coffee while the morning sun streams pleasantly through his office window. He first peruses a Listserv email from the international arbitration committee of which he is a member. In that email, there are links to a four-part BuzzFeed investigation[1] examining investment treaty arbitration (ITA), sometimes referred to as investor-state dispute settlement (ISDS). Mr. International-Lawyer’s interest is highly piqued, after all, he has served as arbitrator on several investment treaty tribunals.

The opening image of the BuzzFeed investigation’s first installment is enough to get Mr. International-Lawyer’s intellectual-battle-adrenaline pumping. He opens the articles one-by-one and reads on, glued to the pages, his indignation rising with each salacious detail. His fingertips rest on his warm coffee cup. Heat travels from his fingertips along the length of his arm, rushes up his neck, and boils over into his face. He’s almost, though not quite, livid. Having finished reading the exposé, Mr. International-Lawyer fires off a reply-all to the recipient list of the original email. The four-part BuzzFeed article, he argues, is full of wild claims and factual errors. Most graciously, Mr. International-Lawyer directs his colleagues to a factsheet[2] published by the International Bar Association (IBA), which contains point-by-point refutations of assertions made by critics of ITA/ISDS.

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In the four-part BuzzFeed series, there are several examples of the very worst abuses of ISDS mechanisms available to foreign investors in the 3,000+ investment treaties dotting the globe. When discussing the role of the lawyers in these examples, one of Mr. International-Lawyer’s colleagues referred to the behavior as the “gamesmanship” in which less scrupulous counsel sometimes engage. While the stories are despicable, and an in-depth analysis of investment treaty arbitration is beyond the scope of this post, a couple things did stand out to me as I read two of the narratives in particular.

In the case of Sri-Lanka’s[3] bad oil-derivatives investment with a contract that was despicably one-sided, I’m quite struck at how little responsibility the BuzzFeed article placed on the executive who signed the deal. Conventional wisdom would say that one should have to pay the natural consequences of one’s own foolish actions, but the BuzzFeed article placed blame entirely on the bank for not doing the executive’s due-diligence for him. Any person heading a corporation, whether state-owned or not, should be at least marginally business savvy. The man who bound an entire nation was one who merely “dabbled” in the stock market. He admitted he didn’t completely understand what he was signing, yet he didn’t seek counsel from those who would understand the contract—lawyers. Even worse, he didn’t even read all parts of the contract.

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Ashantha de Mel, the man who didn’t read the contract

While there certainly is an expectation of good-faith negotiations and sound policy reasons for protecting against unconscionable contracts, we’re talking about the head of a corporation here, not a sole-proprietor with little to no bargaining power. Advocating against allowing the bank to collect its money is disruptive to the rule of law—certainly in this instance at least. While morally despicable, law and morality don’t always intersect. Sri-Lanka wanted to block a legitimate enforcement of a contract because it deemed the contract “substantially tainted” and heartily disliked the manner in which the bank courted a signature. Sri-Lanka’s refusal to honor its foolishly-entered obligation is the very sort of arbitrary State action against which investment treaties are designed to protect. Unfortunately, sometimes such a reprehensible outcome is the unsavory result. But the burden lies on the signer to do his due diligence—especially one who signs on behalf of a corporation where a nation foots the bill. The burden should not be placed on a foreign investor to sift through another country’s policies on signatory authority to determine whether the person signing actually had the power bind the corporation over which he presides. An ordinary executive, acting in the ordinary course of business, usually has the authority to bind the company he heads. As such, the bank had a legitimate expectation and a legally vested right to realize its profits, ill-gained as they may have been.

The Mississippi funeral home case[4] is a clear illustration of why investment treaties have provisions to protect foreign investors in the first place. It makes no difference here that the nation against whom the case was brought has a well-developed, usually fair justice system. When the law of the country in which a foreigner invests returns an unjust, clearly biased result, investors have recourse to remedy the wrong. Without such recourses for individuals against States, an investor would have to rely on his or her country of citizenship to intervene. Nations have a choice whether they will intervene on their national’s behalf or not. Investment treaty ISDS mechanisms provide individuals with standing against a Nation.

While the Canadian investor may certainly have been at fault and deserved to lose his case, he was entitled to a fair trial. Clearly, xenophobia, and outright hostility to the “other” element in the case prevailed. Had this been a situation in which the tables were turned and it was an American investor who received the same treatment in, say, Mexico, there would have been no sovereignty objection. The possibility of a foreign tribunal having the ability to question and overturn a sovereign nation’s determination would have been applauded. Only recently have developed countries been truly faced with having to answer for their own capricious actions, if any. Why is it that we now hear such loud protestations over threats to America’s sovereignty? Suddenly objecting to ISDS mechanisms we largely wrote, and founding the objection on grounds of sovereignty and the availability of sophisticated judicial systems is plain arrogance.

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Mississippi case jury award

Notwithstanding the above defenses, the BuzzFeed investigation was truly appalling. As one reads the articles, questions churn within one’s mind: How on earth can this happen?!? Who would sanction such egregious abuses? Aren’t the provisions meant to incentivize infusions of much-needed capital into developing countries? Isn’t this a system that protects foreign investors from the vagaries of all-too-often capricious regimes? What went awry? Unfortunately, the answers, and the possible solutions that may reform a legitimacy-challenged system, are complex and difficult to boil down into a high-level, easily digestible summary. There are no easy approaches, but before we advocate for throwing out the kitchen with the sink, we need to consider the costs of dismantling an entire system.

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<img height=”1″ width=”1″ style=”display:none” src=”https://www.facebook.com/tr?id=1772280696341572&ev=PageView&noscript=1″ />

Esther-Jane Grenness is an evening student in her fourth year of studies at the University of Baltimore School of Law. She graduated from the University of Baltimore in 2013 with a Bachelor of Arts in Jurisprudence and obtained her Associate of Arts from Howard Community College in 2001. Esther is a member of the International Arbitration Committee’s Investment Treaty Working Group of the American Bar Association’s Section of International Law. She also participated in the Mentorship program with the Women in International Law Interest Group of the American Society of International Law. In addition to her studies, Esther coordinates government procurement contracts in the mobility sales operations group for AT&T’s Global Business – Public Sector Solutions segment.

[1] https://www.buzzfeed.com/globalsupercourt

[2] http://www.ibanet.org/Article/Detail.aspx?ArticleUid=1dff6284-e074-40ea-bf0c-f19949340b2f

[3] https://www.buzzfeed.com/chrishamby/not-just-a-court-system-its-a-gold-mine?utm_term=.bjWJaxGwM#.lyzX4wNOq

[4] https://www.buzzfeed.com/chrishamby/homegrown-disaster?utm_term=.jtNOQjN3w#.bcN9yEN0K


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Welcome to the New Age, to the New Age (of Dark Tourism): They’re Breathing in…the Chemicals

Margie Beltran

April 26, 2016 marked the 30th anniversary of the Chernobyl disaster, the most devastating nuclear power plant meltdown in global history.[1]  To celebrate the disaster site’s big “3-0,” Chernobyl has opened its doors to welcome tourists from around the world.[2]  While Prypyat, Ukraine, home of the Chernobyl power plant, was deemed a tourist site in 2011[3], the increased interest in dark tourism has drawn crowds at astonishing numbers over the past year.[4] Kiev-based touring company, SoloEast, estimates that they will be escorting at least 10,000 tourists annually to the abandoned ghost-town and they are not alone in this business venture.[5]

Three decades removed, the Chernobyl disaster has faded from front-page headlines.  The 1986 meltdown is believed to be a consequence of flawed Soviet engineering, lack of safety culture during the Cold War, and detrimental mistakes made by the plant operators during routine testing.[6]  During the test, a lethal interaction of cooling water and hot fuel mixed in the reactor, leading to overwhelming pressure and eventual destruction of the reactor, entitled Chernobyl 4.[7]

Researchers have calculated that the exposure of the inner reactor following the explosive pressure released a mere 5% of the radioactive reactor core.[8]  The materials released are believed to be 400 times more radioactive than the materials released from the atomic bomb used to attack Hiroshima, Japan in World War II.[9]

On the evening of the incident, two plant workers were killed and, throughout the following weeks, 28 more people died due to acute radiation poisoning.[10]  Further, in 2005, 4000 lives were taken from cancer strongly correlated with the exposure of the incident.[11]  The meltdown has also led to an epidemic of thyroid cancer in radiation-exposed children (estimates totaling at least 1800 children)[12] and caused over a third of a million people to flee from their homes, leaving their possessions behind.[13]

Knowing full well of the ongoing devastation and the health risks of radioactive exposure, tour groups continue to flock to Prypyat in astounding and increasing numbers to see first-hand the remnants of the Ukrainian town.

Initially, it seems crass and disrespectful, but here’s the thing: this draw to the morbidity and darkness of human history is not a new development.[14]

Think about it:

  • Pompeii
  • New York City’s Ground Zero
  • Auschwitz Concentration Camp
  • Alcatraz Island
  • London Dungeon

To name a few, all of these sites are hugely popular stops for tourists.  Yes, it is bothersome that there are some companies capitalizing on the exploitation of human disaster areas as a source of revenue, but the macro-level impact of exposing the masses to the darker side of history generally outweigh this concern.  Giving people the opportunity to experience walking along the paths of human atrocity can stimulate conversations and create forums for sharing ideas on how to improve international human relations.

Louisiana State University’s faculty member, Michael Bowman made a statement to U.S. News critiquing the term dark tourism, “It’s more than just gawking at the misery of other people…One of the most profoundly human things we can do is to walk in another person’s shoes, even if only for an hour-long tour.”[15]  In fact, many tour operators in Chernobyl have personal ties to the area.[16]

So then, why is the draw to visiting Chernobyl so disconcerting?  Well, visiting Chernobyl gives rise to potentially dangerous radiation exposure and increased health risks.[17]  Since the incident, the United Nations Scientific Committee of the Effects of Atomic Radiation (UNSCEAR) has been monitoring the and short- and long-term effects of acute radiation exposure.[18]  While the health effects are not as severe as researchers assumed post-meltdown, there are still increased risks of developing cancer and other disturbing health risks.[19]

Chernobyl is not simply a touring area.  Tour businesses are capitalizing on the dark tourism movement and are putting their customers in danger.  The effects of radiation exposure have been measured and Chernobyl continues to hold high levels of radiation.[20]  Admittedly, researchers who have been monitoring Chernobyl feel the long-terms effects of the radiation should not hold such high concern and the outlook is relatively positive compared to the previously assumed horrors.[21]

However, researchers from both the U.S. and Japan monitoring the long-term radiation health effects of atomic bomb survivors from Hiroshima and Nagasaki for over 60 years fear there are continued risks including, but not limited to, accelerated immunological aging, higher likelihood of cardiovascular disease, thyroid disease, cataracts, and various cancers.[22]  Some of these diseases have developed over 50-55 years post radiation exposure and are continuing to do so at higher than average rates.[23]  Also, let’s not forget that Chernobyl released materials that were 400 times more radioactive than the atomic bomb dropped on Hiroshima.[24]

While the tour groups and researchers promise safe trips to Chernobyl, they really have no way of knowing how much risk they are exposing their tourists to.  Dark tourism is meant for learning about the history of human death and destruction…not to continue the death and destruction.

Margery Beltran is a third year law student at the University of Baltimore School of Law (Candidate for J.D., May 2017).  She holds a Bachelor of Science in Family Science with a minor in Psychology from Towson University.  Her interests include mental health and disability law and international alternative dispute resolution. Margie currently serves as the Volume V Comments Editor for the University of Baltimore’s Journal of International Law. She participated in the 2016 Summer Abroad Program at the University of Aberdeen School of Law in Aberdeen, Scotland.  She is currently an intern in Washington D.C. for the U.S. Department of Health and Human Services, Alternative Dispute Resolution Division.

 [1] http://www.cnn.com/2016/04/25/world/containing-chernobyl-dome-anniversary-radiation/index.html

[2] http://www.dailymail.co.uk/travel/travel_news/article-3047031/Chernobyl-thriving-holiday-destination-following-rise-dark-tourism-phenomenon.html

 [3] http://www.world-nuclear.org/information-library/safety-and-security/safety-of-plants/chernobyl-accident.aspx

[4] Id.

[5] http://www.dailymail.co.uk/travel/travel_news/article-3047031/Chernobyl-thriving-holiday-destination-following-rise-dark-tourism-phenomenon.html

[6] http://www.world-nuclear.org/information-library/safety-and-security/safety-of-plants/chernobyl-accident.aspx

 [7] Id.

[8] Id.

[9] http://www.abc.net.au/news/2016-04-12/chernobyl-nuclear-disaster-marks-30-years-with-extreme-tours/7317678

 [10] http://www.world-nuclear.org/information-library/safety-and-security/safety-of-plants/chernobyl-accident.aspx (Acute radiation poisoning is a rare illness primarily found in people near places where nuclear industrial accidents have occurred or those exposed to the atomic bombs of Hiroshima and Nagasaki, Japan in WWII.  Radiation sickness is caused by exposure to large doses of radiation usually over a small period of time.  Symptoms vary depending on the amount of radiation the body absorbed, whether contamination is external or internal, and the sensitivity of the tissue affected.  In cases of very severe exposure, weakness, fatigue, disorientation, hair loss, bloody vomit and stools, infections, and poor wound healing are among the immediate effects of radiation exposure.  See, http://www.mayoclinic.org/diseases-conditions/radiation-sickness/basics/definition/con-20022901).

 [11] http://ngm.nationalgeographic.com/2006/04/inside-chernobyl/stone-text/2

 [12] http://www.cnn.com/2015/04/14/travel/chernobyl-tourism/index.html

 [13] http://ngm.nationalgeographic.com/2006/04/inside-chernobyl/stone-text/2

 [14] http://www.usnews.com/news/articles/2016-04-26/chernobyl-a-toxic-tourist-destination

 [15] Id. (U.S. News notes that tours in New Orleans, LA observing post-Hurricane Katrina damage have led tourists to return to the city as volunteers, relocate, or invest in the rebuilding.).

 [16] Id.

[17] http://www.unscear.org/docs/reports/2008/11-80076_Report_2008_Annex_D.pdf

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3907953/

[23] Id.

[24] http://www.abc.net.au/news/2016-04-12/chernobyl-nuclear-disaster-marks-30-years-with-extreme-tours/7317678


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Burkini & Beachside Oppression: Islamophobia Wave Hits France

J. Michal Forbes

Warm sand, clear blue skies and a seamlessly endless ocean. France’s beaches along the Mediterranean have been known as some of the most beautiful beaches in the world, as well as some of the sexiest.  Whether it’s Cannes or Saint-Tropez, visitors expect the same things from French’s shores—sunlight, small swimsuits and sexy women. Then along came the burkini, which to some, threatened France’s cultural beach identity.

Last month, amidst much international scrutiny and speculation, over 30 French towns banned the burkini from their shores.[i] The first question that comes to most people’s mind is what exactly is a burkini.  Designed by Australian Aheda Zanetti, the burkini is a custom swimsuit designed specifically for Muslim women who adhere to the Islamic tradition of dressing modestly.[ii]  The burkini resembles a full body suit and covers the whole body with the exception of the swimmer’s face, hands and feet.

 

Within a matter of hours, the ban on burkinis took social media by storm and suddenly the entire world was looking at France’s shores. French Premier Manuel Valls even supported the towns that wanted to ban the burkinis claiming that France’s beaches should be “free of wardrobe associated with religion and politics”.[iii] He also said the burkini is “an expression of a political project, a counter-society, based notable on the enslavement of women.” Social scientists around the world even chimed in, alleging that the ban was not about swimwear, but about protecting France’s non-Muslim majority from having to confront a changing word and protecting Muslim women from patriarchy. [iv]

France’s ban on burkinis, did not last however. In matter of a few weeks, France’s highest courts held that mayors do not have the right to ban burkinis.[v] Since 1905, the French government has practiced laïcité, under which the government does not recognize any kind of religious influence in governmental affairs. The current ban on burkinis was seen by some as a violation of laïcité, and the government’s interface in religious affairs.

forbes_blog1_photo3

 

The question arises: is the ban on burkinis really an attempt to maintain and cultivate the culture of France’s shores? It may have been originally, but around the world many critics see it as France’s latest attempt to suppress the Islamic faith within its country.  In light of the recent terrorist attacks in Nice this past summer, the ban, which was enacted weeks later, is more like Islamophobia masked as cultural preservation.

The ban on the burkinis was nothing more than a push to further ban Islamic garments. A movement that first began in 2004, when the French government previously banned Muslim headscarves (hijabs) from schools. Then again, in 2011, when France became the first European country to ban wearing in public the burqa, a full-body covering that includes a mesh over the face, and the niqab, a full-face veil with an opening for the eyes. Though the ban was ultimately upheld by the European Court of Human Rights in 2014, debate still occurred across the world whether or not this constituted religious oppression. This burkini ban is just the latest law enacted to suppress Islam within France.

forbes_blog1_photo4

The debate surrounding the Ban on Burkinis is far from over. This issue will likely reemerge in the next French presidential election slated for 2017. There is no doubt that the issue of keeping France “homogenous “will be at the forefront.  Once again, burkinis may be banned from France’s shores.

 

If the ban on burkinis becomes national law in France where does religious oppression stop? Will nuns be prohibited from wearing coif? Perhaps priest will be prohibited from wearing clerical collars? However in a country where Catholics make up almost 88% of the population those bans are likely not to happen.[vi] The real issue is Islam and Islamophobia within France.  France’s attempts to remain homogeneous in a world that is multicultural could lead to negative implications for France. And to think, the ban on burkinis was the spark that started the fire.

 

J. Michal Forbes is a proud native of Prince George’s County, Maryland, Ms. Forbes has a fiery passion for international law, travel and frozen yogurt. After receiving her B.A. in Political Science from the University of Maryland, Baltimore she taught ESOL in the Washington, D.C. Metropolitan area before joining the US Peace Corps in 2011. Ms. Forbes served in the Peace Corps in Ukraine from 2011 to 2013, in a small town between the Red Sea and the Black Sea in Crimea. Fluent in Russian, Ms. Forbes soon caught the travel bug and traveled/worked extensively throughout Eastern Europe during her 27 month commitment. Currently a 3L, Ms. Forbes is a member of the International Law Society, Immigration Law Society, Black Law Student Association and the Women Lawyers as Leaders Initiative. She has worked for Maryland Legal Aid and the NAACP’s Office of the Attorney General. She was recently awarded the honor of being named Article Editor with the University of Baltimore Law Forum, a scholarly legal journal focused on rising issues in Maryland. It is her dream to work for the U.S. government assisting with asylum seekers and refugee. In her free time, Ms. Forbes enjoys eating frozen yogurt with her husband and learning Arabic.

 

[i] http://www.cnn.com/2016/08/24/europe/woman-burkini-nice-beach-incident-trnd/

[ii] The Surprising Australian origin of the ‘burkini’, https://www.washingtonpost.com/news/worldviews/wp/2016/08/17/the-surprising-australian-origin-story-of-the-burkini/

[iii] Manuel Valls: Burkini ‘not compatible’ with French values, http://www.politico.eu/article/manuel-valls-burkini-not-compatible-with-french-values/

[iv] France’s ‘Burkini’ Bans Are About More Than Religion or Clothing, http://www.nytimes.com/2016/08/19/world/europe/frances-burkini-bans-are-about-more-than-religion-or-clothing.html?_r=0

[v] French court suspends burkini ban, http://www.cnn.com/2016/08/26/europe/france-burkini-ban-court-ruling/

[vi] The Church in Decline: France’s Vanishing Catholics, http://www.ibtimes.com/church-decline-frances-vanishing-catholics-1125241