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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The Two Systems – Economic vs. Moral Rights

Daniel Huchla

The Law of Intellectual Property plays a valuable role in most if not all domestic legal systems.  The drafters of the United States Constitution were so cognizant of the value of this right that a congressional empowerment clause was designated specifically for Intellectual Property, more commonly known as the Copyrights Clause.[i]  Efforts toward the harmonization of intellectual property rights on an international scale have drawn into question two distinct approaches to copyrights, the protection of economic rights, and the protection of moral rights. In its history, the United States has viewed copyrights from an economic perspective. Whereas European nations are more likely to construct copyrights as moral rights. These differing perspectives might be illustrative while considering the pending litigation surrounding the commercialization of the writings of J.R.R. Tolkien.

huchla_blog3_photo1Cover art for editions of novels written by J.R.R. Tolkien and published by Houghton Mifflin in 1999.[ii]

The film adaptation of The Lord of the Rings Trilogy was a massive commercial success which received massive critical acclaim.[iii] This film lead to its own set of disputes over the sharing of profits between the filmmakers and the Tolkien estate. With the success, it was foreseeable that Warner Bros. would want to acquire rights to The Hobbit as well.[iv] A contract was signed, and three films were adapted from the novel. Although The Hobbit films were slightly less successful or acclaimed, this was not the cause for dispute between the Fourth Age, Ltd. (the corporate form of the Tolkien Estate) and Warner Bros. The lawsuit arose from the attempt to commercialize/market the films through the development of Lord of the Rings/ The Hobbit themed casino games.[v]

Under the United States economic rights approach, copyrights are designed to provide the incentives for authors to create. From this approach, an author’s interest is in the exclusivity of the economic exploitation of their work. Generally, from this approach once a copyright is licensed through contract, the author’s interest in the intellectual property is limited by the terms of the contract. Depending on the terms of the contract surrounding the marketing of the film, under a purely economic construction of copyright, Warner Bros. might be entitled to relief under contract law.[vii]

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Image of U.S and U.K flags superimposed.[vi]

Under the European moral rights approach, copyrights are viewed from a perspective beyond pure economics due to a belief that there is an “intimate bond between authors and their works.”[viii]  Under this theory works are viewed as an extension of the individual. Accordingly, countries that subscribe to this construction of copyrights such as France, Germany, and the United Kingdom provide additional protections to authors. Among these protections are a right to ensure the integrity of a work.[ix] The right to ensure the integrity of a work is a separate right from the commercial copyright and accordingly would not be waived while licensing the copyright. This right would likely enable the Tolkien Estates to contest the marketing of the film adaptations through the creation of casino games.

Moral rights are acknowledged under International Law through the Berne Convention and Trade Related Aspects of Intellectual Property (TRIPS) agreement.[x] Article 6bis of the Berne Convention provides:

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. [xi]

The United States, while ratifying Berne, believed  that these obligations were sufficiently met by domestic law without further action.[xii]  This claim does have some basis in the findings of the Second Circuit in Gilliam v. American Broadcasting Companies, Inc..[xiii]  In this case, there was a dispute about the abuse of editorial discretion under a license agreement with the BBC to bring Monty Python’s Flying Circus to the United States.[xiv] The court protected the claims of integrity on behalf of members of Monty Python under the Lanham Act, 15 U.S.C. § 1125.[xv] Though the application of the Lanham Act in this fashion has been questioned. Accordingly, it is uncertain just how the District Court might interpret the moral rights of the Tolkien Estate, creating unclear bargaining position for any potential settlement.

Despite this rather contentious dispute between Warner Bros. and the Tolkien Estate, this has not stemmed interest in the development of additional films set in Middle-Earth. Fans of the novels and films alike have speculated about the possibility of adapting another of Tolkien’s beloved novels, “The Silmarillion.”[xvi]  Perhaps the Silmarillion will make it to the silver screen, but that will depend upon the resolution of the current litigation between Warner Bros. and the Tolkien Estate.  However, if moral rights were more clearly accepted in the United States, “The Silmarillion” might be more likely to become the next blockbuster film.

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] U.S. Const. art. I, § 8, cl. 8.

[ii] https://theliteraryomnivore.wordpress.com/2011/03/20/the-sunday-salon-out-of-print-and-current-us-editions-of-the-lord-of-the-rings/.

[iii] http://www.the-numbers.com/movies/franchise/Peter-Jacksons-Lord-of-the-Rings#tab=summary; http://www.theonering.net/torwp/2004/03/03/24877-complete-list-of-trilogy-oscar-nominations-wins-2/.

[iv] http://www.hollywoodreporter.com/thr-esq/warner-bros-claims-tolkien-estate-428390

[v] http://www.hollywoodreporter.com/thr-esq/tolkien-estate-sues-warner-bros-393212; see Fourth Age Ltd. v. Warner Bros. Digital Distribution Inc., 2013 WL 11316952 (2013); see also http://www.casinocenter.com/hobbit-quest/.

[vi] http://expatessentials.net/education-us-v-uk-education-systems/.

[vii] http://www.hollywoodreporter.com/thr-esq/tolkien-estate-sues-warner-bros-393212

[viii] Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int’ L. J. 353 (2006).

[ix] Id.

[x] Berne Convention, https://www.law.cornell.edu/treaties/berne/overview.html.

[xi] https://www.law.cornell.edu/treaties/berne/6bis.html.

[xii] Edward J. Damich, Moral Rights in the United States and Article 6bis of the Berne Convention: A Comment on the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Bern Convention, 10 Colum.-VLA J. L. & Arts 655 (1985).

[xiii] 538 F. 2d 14 (2nd Cir. 1976).

[xiv] Id. at 23.

[xv] Id. at 24.

[xvi] See e.g. http://www.tolkienlibrary.com/press/1180-on-the-possibility-of-a-silmarillion-movie.php.

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Stay in your Lane: South Korea and China Sea Disputes

Kia Roberts-Warren

It is no big surprise that China has a problem with respecting the territorial waters of others. Recently, the Permeant Court of Arbitration (“PCA”) ruled in favor of the Philippines; a proceeding that China did not participate in and has not abided by the PCA’s decision.  However, since the early 2000s South Korea has been dealing with China encroaching on its waters.[1] The water disputes are really between South Korea and Chinese fisherman who illegally fish in South Korea’s waters. Chinese fishermen have been illegally fishing in South Korea’s waters due to the depletion of seafood in their own waters and the increasing demand that the more prosperous Chinese population has to spend on seafood.[2] The South Korean Ministry of Defense reported that 520 Chinese fishing boats were caught for illegal fishing between January and May of this year and 120 instances in 2015.[3] The South Korea coastguard has reported from 2006-2011 about 2,600 seizures of Chinese fishing for illegal fishing.

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On October 9, 2015, two Chinese fishing boats slammed into a South Korean speedboat that was trying to remove the fishing boats from South Korean waters which caused the speedboat to sink. This resulted in several Chinese fishing boats to come armed with spear-like metal rods, but another coast guard vessel arrived and fired an assault rifle and a grenade launcher.[4] Fortunately, no one was injured or killed. However, about two weeks ago, the dispute turned deadly. A 17 crew Chinese fishing boat was found in South Korean waters by the South Korean coast guard. The coast guard stopped the boat on the grounds of poaching on South Korea’s waters. The crew members locked themselves in the steering cabin to resist questioning and searching of the vessel. In order to force the crew out of the cabin, the coast guards threw flashbang grenades into the cabin. The boat unexplainably caught fire. The coast guards were able to save 14 men. An investigation was launched to find out what caused the fire.[5]

This is not the first instance where illegal fishing has turned violent and deadly between the South Korean coast guard and Chinese fishermen. The escalation for violence is due to Chinese fishermen trying to escape arrest and fines for thousands of dollars. Chinese fisherman have been reported to be in possession of axes and steel pipes in order to prevent the South Korean coastguard officers from entering aboard. Also, Chinese ships chain each other together to resist seizure. Moreover, they have taken advantage of the tensions between South and North Korea. They sometimes sign contracts in North Korea to cross the boundary into South Korean waters.[6]

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The first instance of violence between both parties began in 2008, when a South Korean coastguard officer drowned after he was hit by a Chinese fisherman. In 2010, during a boat seizure a Chinese fisherman drowned and another disappeared when their ship sank after ramming into the South Korean patrol boat. In 2011, a South Korean coast guard was stabbed with glass by a Chinese fisherman trying to evade arrest.[7] After this incident, South Korea once again called on China to do something about its citizens. China responded that allegedly it was working on reducing the illegal fishing by instructing Chinese fisherman about the law and sometimes even physically restricting their boats from crossing into South Korean waters. However, as long as the fisherman can return to Chinese waters no penalties are imposed on them. In 2012, a Chinese fisherman was killed by a rubber bullet fired by a South Korean coast guard. And in 2014, during a vessel search by the South Korean coast guard, a Chinese captain died from a bullet wound from an altercation between the parties.[8]

SOUTH KOREA RETAILATES

The South Korean government expanded its fishing zone and hours on October 1st,  intended to help local fishermen increase their income as well as the struggles they have faced with Chinese fishing boats being there illegally.[9] This appears to be in response to the most recent incident and because South Korea has politely urged China, but to no avail, to deal with its fishermen illegally fishing. The new policy broadens the Yeonpyeong Island zone by 14 square kilometers to the west. Fisherman will be allowed to start fishing 30 minutes before sunrise and one hour after sunset during the months of April-May and October-November, all of which are the peak of crab season.[10] Furthermore, this past Tuesday, the South Korean made an announcement that their coast guard would start using force, this includes ramming into fishing vessels, and crews service weapons or individual weapons for those who try to violently resist.[11] South Korea has also began installing anti-trawl devices on the seafloor near the border which would foul up Chinese fishermen’s nets.

LEGAL REMEDIES?

China has raised concerns that South Korea’s actions of using law enforcement as a violation of the bilateral fishing treaty in force by both parties. China has also made official comments in the past about South Korea using fair and non-prejudicial treatment and procedure when it comes to detaining and questioning of its nationals. Under international law, some of the deaths of its Chinese nationals in past disputes may rise to damages only if South Korea has failed to prevent an unlawful death or injury cause by agents of the state.[12] However, South Korea doesn’t have the same possibility. This is because the fishermen are private individuals and the deaths happened in South Korea’s waters.

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China may also have another claim to the expansion of South Korea expanding its territorial waters if South Korea actually has mechanisms in place to make this policy effective. States are given 12 nautical miles as their territorial waters. Under the Law of Sea there is nothing that allows a State to expand its waters. However, if China wants South Korea to conform to the Law of the Sea convention it would first have to respect the decision of the PCA and cease its activities in the South China Sea.

There may also be some liability to South Korea if the anti-trawl devices are a violation to the ocean and maritime law in general. However, since anti-trawl devices are a new invention it may take the international community some time to decide upon it.

South Korea could bring North Korea before the ICJ because of its violation of its State obligations to South Korea. The North Korean government is allowing Chinese private citizens to use its territory to violate their obligations to South Korea. However, there are questions that remain: would North Korea appear? Would North Korea accept the decision of the ICJ?

The liability issues involving all three States also are entangled with politics as well so one of these countries taking legal actions is very unlikely as well because their relationships are fragile.

Kia Roberts-Warren is a 3L at UB Law. She is concentrating in international 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 international trade and human rights. She is also interested in fashion law and art law in the international context. Last year, she held the position of Career Development Director of the International Law Society and participated in the 2016 Philip C. Jessup Moot Court Competition. She recently attended UB’s Aberdeen Summer Abroad Program.  

[1] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[2] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[3] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[4] http://thediplomat.com/2016/10/south-korea-sees-frictions-with-chinas-maritime-militia-whats-next/

[5] http://www.nytimes.com/2016/10/01/world/asia/south-korea-china-fishermen-deaths.html?_r=0

[6] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[7] http://www.nytimes.com/2011/12/13/world/asia/chinese-fisherman-kills-south-korean-coast-guardsman.html

 

[8] http://www.nytimes.com/2016/10/01/world/asia/south-korea-china-fishermen-deaths.html?_r=0

[9] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[10] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[11] http://www.maritime-executive.com/article/south-korea-to-respond-to-illegal-fishing-with-force

[12] http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1168&context=auilr


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The 21st Century and Witchcraft; A Human Rights Disaster from a Bygone Age

Alexander Ayer
Witchcraft. The very word congers up a myriad of different images, thoughts, and ideas. From popular fiction series about children learning spells to the older fairy tales of the Brothers Grimm, our culture is inundated with tales of magic and those who practice it. However, there was a time in the past when people lived in fear of those they believed possessed malevolent powers. Most people in America today see the idea of witches as the realm of pure fantasy. Further, the days of people accusing each other of actually being witches, and carry out hunts to purge these perceived threats have surely long past. This must have been the product of a darker and more ignorant time in human history.

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Well, witch trials are not just the product of a bygone era where angry mobs dragged oddly hatted women into the center of town claiming she turned someone into a newt. More than 2,000 people have been killed in witch hunts between 2000 and 2015 in India alone.[1] Even more troubling, the practice of witch burning has surfaced in both Asian and African nations.[2]
The Problem
This problem has manifested in several countries around the world, particularly in central and south-east Asia, as well as sub-Saharan Africa. However, this post will be restricted primarily to India, because there has been some fairly reliable reporting on the frequency of these allegations as well as some recent developments.

Troublingly, just as in the darker days of old, witchcraft allegations are primarily aimed at the most vulnerable in a society; women, the old, the young, the disabled, and those who are too different.[3] Women, just as in the days of Europe’s witch hunts, are particularly vulnerable to these accusations due to ingrained social views in more rural and isolated areas.[4] Of the approximately 2000 people killed in India in recent years most have been women.[5] One particular trend aimed at landed women has been using witchcraft allegations to seize property. Land-owning women are accused of witchcraft, and then firewood for a pyre is gathered in view of their homes. The older women who are usually the targets of these scheme will then flee and their land will be seized.[6]

However, witchcraft allegations are not always used as a thinly veiled cover for privet gain. There are people who genuinely believe in witchcraft and its potential for harm.[7] Worse, there are people who are accused of witchcraft who come to believe it themselves. Some individuals think that they are possessed by evil spirits, or are under the sway of demons and thus might be capable of inflicting magical harm on their neighbors even if they don’t understand how.[8]

Fear and lack of knowledge seems to be the fuel that causes witch frenzies to burn the brightest. Many communities which have seen a rise in witch hunts lack sufficient medical care and education.[9] When confronted with deadly and infectious deceases or other misfortunes many of these communities have turned on each other and blame the already weak or disenfranchised.[10] However, witchcraft has been blamed for other problems as well, including cancer, the death or a child or other family member, or a poor harvest.[11]

Accused witches can face a number of problems. Once branded a witch an individual may be shunned, beaten, banished, beheaded, or even burned alive.[12] These trials and hunts are notoriously lacking in due process. In one incident in 2014, an Indian athlete attended a village meeting after the deaths of four village members, once there she was accused of witchcraft, trapped with a net, and beaten until she lost consciousness.[13] In some cases treatment may even rise to the level of torture; where in addition to suffering severe physical harm, accused individuals may be forced to consume poisonous liquids, animal blood, or human waste.[14]

Just How Bad Is It?
It has been hard for authorities to get a sense of how wide spread the problem has become. Apart from incidents going unreported or being reported as something else, one particular issue has been the fact that most incidents have been occurring in rural or isolated areas.[15] However, the UN estimates that the number could be as high as the tens of thousands killed, and millions harmed in other ways worldwide.[16] Further, just because most of these incidents have occurred in more remote areas, some have not. The U.N. Human Rights Council has been receiving reports from neighboring Nepal that witchcraft allegations are spreading to more developed areas.[17]

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How Did I Not Know This Was Happening!
One of the major difficulties is the unwillingness of some countries to acknowledge these witch hunts are even happening. UN officials have been pushing various governments to acknowledge and address the problem, but there has only been moderate successes thus far.[18] Many governments and local authorities have traditionally been reluctant to intervene, viewing most of it as cultural in nature and thus not wanting to get involved. In other cases, authorities simply lack the resources to fight the poverty and lack of knowledge that spreads much of the witch hunt zeal.[19]

Is There Hope?
Hope does endure. This problem has been defeated before. Witch hunts where far more common in Europe during the 16th century and even occurred in America for a time during the 17th century. They ended, and witch hunts around the world can end as well.

Ignorance and fear are the cause, and poverty is an exacerbating problem. These are factors which can be addressed. South Africa has done as much, stemming a witch hunt pattern in their country by launching an education program about the scientific and medical causes of many diseases such as HIV and AIDS.[20]  South Africa has also begun holding tribal leaders responsible by warning that, if a person is accused and is killed for witchcraft, the South African authorities would get involved and my hold the leaders themselves responsible.[21]

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Action has begun to take place in India as well. In the Indian state of Assam, where witch hunts have been a serious problem, a law was passed in recent years banning witchcraft accusations and making such accusations punishable with possible imprisonment.[22] In The five years between 2001 and 2006 Indian police authorities believe that approximately 300 people were killed in witch hunts in Assam, now advocates are hoping the law will help end this nightmare.[23]

The UN is still determined to get countries to acknowledge and address witch hunting practices. The U.N. High Commissioner of Human Rights stated in relation to witch trials in Liberia that “… human rights obligations must take precedence over any local practices considered to be ‘cultural’ or ‘traditional’ where such practices are incompatible with human rights principles.”[24]

My Thoughts
I think this is a practice which can be beaten once and for all. It is not enough to simply go to these places and explain that the accused are not witches, this has been ineffective in the past.[25] The first step in solving this disaster is to acknowledge that it is happening. The UN has been trying to push more governments to publicly acknowledge that these events are happening in their boarders.[26]  I think this is where the solution has to start. It is hard to address a problem while simultaneously ignoring it.

South Africa’s policy of education is great idea. If people understand the scientific causes behind their misfortunes they are less likely to attack the vulnerable. There is genuine concern due to the spread of infectious disease, possible crop failures, and loosing loved ones. However, it is a lack of understanding which leads to people seeking their own answers by turning on their neighbors. Let us use knowledge to kill ignorance.

There must also be more social help for the accused. The accused must feel as though going to the authorities will help them, and that means the authorities must be willing to get involved to end this heinous practice. India’s law, providing some legal protection for the accused by making it illegal to openly carry out witch trials, is an excellent way to start. Further medical support and economic development would probably also help these already stressed communities from descending down the dark road of the witch hunt.

This human rights nightmare can be ended. We know what it will take, and we have existing models to work from, both from history and the present day. We have ended this scourge before, let us do so again.

Alexander Ayer  is a third year (3L) law student at the University of Baltimore School of Law. His undergraduate studies were completed at Hood College, where he majored in history and graduated cum laude in 2014. Alexander is expected to graduate from the University of Baltimore School of Law in the Spring of 2017. As part of his international law background he took part in a study abroad program at the University of Aberdeen School of Law in Scotland. Alexander is drawn to international law by the comparative approach of seeing how different societies solve similar problems in different ways, as well observing how history has effected the laws and policies of various nations, and the behaviors demonstrated by counties interacting with each other on the world stage. In addition to international law, Alexander is also interested in disability law and copyright law.

 

[1]http://www.nytimes.com/2016/02/25/world/asia/india-assam-state-witch-hunts.html?_r=0

[2] http://nationalgeographic.org/news/witch-trials-21st-century/

[3] http://www.reuters.com/article/us-religion-witchcraft-idUSTRE58M4Q820090923, http://nationalgeographic.org/news/witch-trials-21st-century/, & http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16904&LangID=E

[4] https://www.washingtonpost.com/news/morning-mix/wp/2014/07/21/thousands-of-women-accused-of-sorcery-tortured-and-executed-in-indian-witch-hunts/

[5] http://www.nytimes.com/2016/02/25/world/asia/india-assam-state-witch-hunts.html?_r=0

[6] http://nationalgeographic.org/news/witch-trials-21st-century/

[7] http://www.bbc.com/news/world-asia-india-35975360 & http://www.nytimes.com/2016/02/25/world/asia/india-assam-state-witch-hunts.html?_r=0

[8] http://www.nytimes.com/2016/02/25/world/asia/india-assam-state-witch-hunts.html?_r=0, http://www.bbc.com/news/world-asia-india-35975360, http://www.nytimes.com/2016/02/25/world/asia/india-assam-state-witch-hunts.html?_r=0

[9] http://nationalgeographic.org/news/witch-trials-21st-century/

[10] http://www.bbc.com/news/world-asia-india-35975360

[11] http://www.nytimes.com/2016/02/25/world/asia/india-assam-state-witch-hunts.html?_r=0 & https://www.washingtonpost.com/news/morning-mix/wp/2014/07/21/thousands-of-women-accused-of-sorcery-tortured-and-executed-in-indian-witch-hunts/

[12] http://www.bbc.com/news/world-asia-india-29655662

[13] http://www.bbc.co.uk/news/world-asia-india-29655662

[14] https://www.washingtonpost.com/news/morning-mix/wp/2014/07/21/thousands-of-women-accused-of-sorcery-tortured-and-executed-in-indian-witch-hunts/

[15] https://www.washingtonpost.com/news/morning-mix/wp/2014/07/21/thousands-of-women-accused-of-sorcery-tortured-and-executed-in-indian-witch-hunts/

[16] http://www.reuters.com/article/us-religion-witchcraft-idUSTRE58M4Q820090923

[17] http://www.reuters.com/article/us-religion-witchcraft-idUSTRE58M4Q820090923

[18] http://www.reuters.com/article/us-religion-witchcraft-idUSTRE58M4Q820090923

[19] http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16904&LangID=E & http://nationalgeographic.org/news/witch-trials-21st-century/

[20] http://nationalgeographic.org/news/witch-trials-21st-century/

[21] http://nationalgeographic.org/news/witch-trials-21st-century/

[22] http://www.nytimes.com/2016/02/25/world/asia/india-assam-state-witch-hunts.html?_r=0

[23] http://www.reuters.com/article/us-religion-witchcraft-idUSTRE58M4Q820090923

[24] http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16904&LangID=E

[25] http://nationalgeographic.org/news/witch-trials-21st-century/

[26] http://www.reuters.com/article/us-religion-witchcraft-idUSTRE58M4Q820090923


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Greed Over Life

Christian Kim

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The air was tense as the wind softly fluttered a weather-worn flag on top of a pole.  A deep thud echoed in the air as a tribal elder slammed the ground with his staff.  A quiet echo of “mni wiconi, mni wiconi” (“Water is Life,” in Lakota) accompanied each thud from the elder’s staff.[1]  A static crackle came a hundred or so meters from the group.  Suddenly a loudspeaker blared, “Please disperse.  You are disrupting progress!”  The slow chants of “mni wiconi, mni wiconi” progressively grew louder as another cackle from the loudspeaker echoed, “This is your final warning, please disperse!”  What was meant to quiet the chants seemed to fuel it even more as the chants of “MNI WICONI, MNI WICONI” made the loudspeaker inaudible to those near the protestors.  Then, a bang, accompanied by smoke, filled the air and silence immediately descended on the arid Dakota soil.  The tribal elder, fell to the ground in unison with his staff.  Shrieks of anger and outrage rang as the protestors ran towards the aid of the tribal elder.

The Dakota Access Pipeline is a 1,170 mile long pipeline that could potentially transport over 570,000 barrels of fracked crude oil daily.[2]  It is not uncommon to stumble upon a news report showing footages of rescuers picking up seagulls or sea otters drenched in thick black sludge.  Like many oil pipeline projects, the danger of an oil leak isn’t a far-fetched concern.  The concern here is that this pipeline, which is less than half a mile upstream from the Standing Rock Sioux Tribe’s drinking water source, has the potential to leak.  For many months, Native American protestors occupied land across the Missouri River to show their outrage at the Dakota Access Pipeline.  These protestors, who would rather be called “Water protectors”, attempted to stop construction through united tribal gatherings.  In order to continue with the construction, North Dakota and six other states sent police officers to arrest and even to attack the “Water Protectors” often leading to disastrous results.  Many of those arrested were sent to the Morton County Correctional Center and placed in cramped cages.  Some, were even placed in makeshift dog kennels to follow the sudden demand of prisoners.  In prison, many of these “water protectors” received food, water, and medical attention in an extremely delayed manner.  In an attempt to stop the construction, some of the “Water Protectors” even chained themselves to construction equipment.  As a result, officers water boarded these individuals to quell the protests.[3]

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Under the United Nations’ Convention against Torture and Other Cruel, Inhuman or Regarding Treatment or Punishment (UN Convention), all of these treatments can fall under Article 1 which states

“Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person …or for any reason based on discrimination of any kind.”.[4]

Article 1 is even more applicable in the situation at hand since most of these “water protectors” are of Native American descent, a historically discriminated group even before the creation of the United States.

In addition, the construction violates one of the basic rights that a human could have, the right to water.  Clean drinking water is an indispensable necessity to sustain life.  Although it is common knowledge that drinking oil contaminated water is deadly, not many individuals are aware that drinking even post-treated water that was contaminated by oil is unsafe to drink due to chemical residue.[5]  Since the Dakota Access Pipeline spans for more than a thousand miles, it is foreseeable that it will leak at one point or another.  The recent Alabama pipe explosion which killed a pipeline worker demonstrates the dangers of oil pipeline projects.[6]In the 29th Session of the United Nations Committee on Economic, Social and Cultural Rights, general comment 15 stated that “the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.”[7]  Although Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states that everyone has the right to an adequate standard of living “including adequate food, clothing and housing,”[8] general comment 15 clarified that the use of the word including means that the list was not exhaustive.  The Committee stated that within this category, “water clearly falls within the category of essential for securing an adequate standard of living.”  “The human right to water is indispensable for leading a life in human dignity.  It is a prerequisite for the realization of other human rights.”[9]  The General Comment also clarified the obligation of states and also international obligations which include: respect the right to water by refraining from interfering directly or indirectly with the enjoyment of the right, protect the right to water by preventing third parties from interfering in any way with enjoyment of the right to water, fulfill the right to water by adopting the necessary measures directed towards the full realization of this right.  Although the U.S. signed but did not ratify the ICESCR, the signing of the treaty expresses the willingness to refrain in good faith, from acts that would defeat the purpose of the treaty.

kim_blog3_photo3

Recently, a UN Group stated that they would investigate the human rights abuses going on in South Dakota.[10]  With the election season over, it is time for the United States to take charge and address this situation right away before it plays out as an international embarrassment. Even though the United States is not a party to the Declaration on the rights of indigenous peoples, it should make strides to improve the quality of this historically discriminated group.[11]   Sadly, the ill-treatment of Native Americans is not a novel concept in our nation’s history.  Countries with terrible record of human rights would often reflect U.S. official’s criticisms of their country human rights violations by pointing out various human rights violations going on in the United States.  Some fall in the form of discrimination within our country, the continued use of capital punishment, and now these countries can point to the Dakota Access Pipeline as another.  Even though the United States only signed but did not ratify the ICESCR and UN Convention, as a global leader on human rights, the United States has to halt the construction of the Dakota Access Pipeline and stop the terrible treatment of these “water protectors.”

Christian Kim is a 3L at the University of Baltimore School of Law with a concentration in International and Comparative Law.  He graduated from the University of Maryland (2012) with a Bachelor of Arts in Criminal Justice.  He served as the President of the Asian Pacific American Law Student Association and is currently the Chief of Staff for the Student Bar Association.  His interests are East Asian politics, international conflicts, and human rights.  Before law school, Christian worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years.  He is currently a legal researcher for the U.S. Commission on International Religious Freedom and a law clerk for the Law Office of Hayley Tamburello.

[1] http://www.walkinbeauty-bethechange.com/mniwiconi.html

[2] http://www.globalresearch.ca/the-dakota-pipeline-the-human-right-to-water-at-standing-rock/5555110

[3] http://www.counterpunch.org/2016/10/28/standing-rock-water-protectors-waterboarded-while-the-cleveland-indians-romped/

[4] http://wrweb.org/legal/cat.html

[5] http://en.hesperian.org/hhg/A_Community_Guide_to_Environmental_Health:Oil_Spills

[6] http://www.al.com/news/birmingham/index.ssf/2016/11/alabama_pipeline_explosion_fir.html

[7] http://www2.ohchr.org/english/issues/water/docs/CESCR_GC_15.pdf

[8] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

[9] http://www.righttowater.info/progress-so-far/general-comments-2/

[10] https://www.theguardian.com/us-news/2016/oct/31/dakota-access-pipeline-protest-investigation-human-rights-abuses

[11] http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx


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Bad Air? Have no fear! Bottled Air is here!

Jasmine Pope

Can’t breathe? Have no fear, bottled air is here! Yes, you read that correctly. No, this is not a joke. Companies are bottling and selling air. Not just any air though: companies are selling the best of the best, thehighest quality air money can buy. The idea of bottled air might have started as a joke, but it is no laughing matter now. But don’t judge air by its bottle, air also comes in cans and even bags! Companies, such as Vitality Air, Aethaer, and Green and Clean, are making millions of dollars in this emerging industry. Many of these companies started as a joke, with some even selling bagged air on eBay. So then why sell air? Well, because people will actually buy it.

Leo De Watts is the founder of Aethaer, a British company with the goal that “buyers would come to regard [the] product as a collectible, like a sculpture or a limited-edition print made by an artist.”[i] How could air in a bottle become a collectible? De Watts notes that “clean air is actually a very rare commodity.”[ii] He’s not wrong. Places like India, China, and Southeast Asia are being choked by smog.

Pollution & The World Health Organization

Air pollution is defined as “contamination of the indoor or outdoor environment by any chemical, physical or biological agent that modifies the natural characteristics of the atmosphere.”[iii] In 2012, World Health Organization (WHO) reported that 12.6 million people died as a result of living or working in unhealthy environments.[iv]  As of this year, 92% of the world’s population is living in an environment where the air quality exceeds WHO limits.[v] This means that only eight percent of the world’s population lives in an environment where the air quality meets WHO regulations. What are the risks of living and breathing polluted air? Overtime, as air quality declines, “the risk of stroke, heart disease, lung cancer, and chronic and acute respiratory diseases increases for the people who live in them.”[vi]

The Eastern World

Cities and towns in Southeast Asia, China, and India are being smothered by smog. When pollution levels are high in China, “you can definitely smell the pollution. Your eyes itch, you cough. It’s like a very rich, dense soup.”[vii] Until very recently, the Chinese government refused to address the issue of air pollution, let alone recognize that there was indeed air pollution. In December 2015, for the first time ever, Beijing issued a pollution red alert, canceling classes for days, pulled cars off the road, shut down barbeque stalls, and halted outdoor construction.[viii] A red alert is the highest level in a four-tier system. Some people have viewed the declaring of a red alert as a sign of progress because “[the government is] understanding how they should react and respond to these extreme conditions.”[ix] In 2015, Southeast Asia saw one of the worst, most prolonged period of haze. The haze spread to Malaysia, Singapore, the south of Thailand and the Philippines.[x]  India also suffers from polluted air, mostly due to its major cities, like Delhi, having some of the highest vehicle density per kilometers in the region.[xi]

Back to Bottled Air

What does bottled air have to do with all of this? The market is exploding in places like China, India and Southeast Asia for an innovation that could possibly tackle the smog choking many cities. There are more practical innovations, such as air purifiers which can attach to outdoor towers or bikes and suck up smog, but bottled air represents an interesting innovation in the marketplace.[xii] Pan Li, who works in Beijing states that bottled air makes her lungs “feel clean…it might just be [her] imagination, but [she’s] willing to try anything.[xiii] And she’s not the only one. Green and Clean, an Australian bottled air company plans to ship 40,000 containers a month to China.

Aethaer’s website states that they are dedicated to “[providing] clean, fresh and pure natural air in bottled form,” and that Aethaer is “collected from fresh natural air flowing over a range of prime locations from fertile lush pastures and wild untouched meadows, to wind-kissed hilltops and heavenly snow-capped mountains.”[xiv] This might sound wonderful and amazing, but in reality, “an individual requires a minimum of eight to ten packed bottles every minute to breathe.”[xv] So why are people buying bottled air? Fortunately, many are buying it as gag gifts or as Leo De Watts stated, as collectibles. But there are many people, like Pan Li, families with children, athletes, and business executives alike, that genuinely think bottled air is the answer for all of the problems. Whether or not they’re right or wrong, companies are making millions of dollars because hundreds of thousands of people are buying bottled air.

Jasmine Pope is a second year law student at the University of Baltimore. She graduated from Towson University in 2015 with a Bachelor of Science in Political Science, with a minor in History. Jasmine is extremely interested in and passionate about international human rights, particular the rights of women and children. She also participated in the Summer Study Abroad Program in Aberdeen, Scotland. She has also studied abroad in Benalmádena, Spain. Currently, she serves as the Secretary for the International Law Society. Jasmine is currently a member of the Inter-American Human Rights Moot Court Team. Jasmine is also a Staff Editor for the Journal of International Law and works for the Law Office of Hayley Tamburello.

[i] Javier Hernandez and Emily Feng, “Selling Air (a.k.a. the Idea They Thought of Next)” October 31, 2016, http://www.nytimes.com/2016/11/01/world/what-in-the-world/china-bottled-air-pollution.html.

[ii] Javier Hernandez and Emily Feng, “Selling Air (a.k.a. the Idea They Thought of Next)” October 31, 2016, http://www.nytimes.com/2016/11/01/world/what-in-the-world/china-bottled-air-pollution.html.

[iii] http://www.who.int/topics/air_pollution/en/.

[iv] http://www.who.int/gho/phe/en/.

[v] http://www.who.int/phe/health_topics/outdoorair/en/.

[vi] http://www.who.int/mediacentre/news/releases/2016/air-pollution-rising/en/.

[vii] “What is China doing to tackle its air pollution?” http://www.bbc.com/news/world-asia-china-35351597.

[viii] https://priceonomics.com/why-is-the-pollution-so-bad-in-beijing/.

[ix] “What is China doing to tackle its air pollution?” http://www.bbc.com/news/world-asia-china-35351597.

[x] http://www.bbc.com/news/world-asia-34265922.

[xi] http://www.hindustantimes.com/india-news/delhi-s-air-pollution-bad-other-cities-not-far-behind-pollution-watchdog/story-NBQSt0XGUuUrX9eDjOOlaN.html.

[xii] http://www.nytimes.com/2016/11/01/world/what-in-the-world/china-bottled-air-pollution.html.

[xiii] http://www.nytimes.com/2016/11/01/world/what-in-the-world/china-bottled-air-pollution.html.

[xiv] http://www.aethaer.com/about.

[xv] http://www.thenewsminute.com/article/fyi-delhi-bottled-air-being-sold-china-52290.


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South Africa’s Opposition to LGBTI Watchdog

 

John Rizos

“It would turn back the clock on the progress made globally in relation to LGBTI rights.” The Director for ARC International lamented in response to the opposition for denouncing the UN Human Rights Council’s resolution to monitor and investigate LGBTI rights violations more closely[1]. Although the resolution is not binding, by merely calling upon and encouraging State cooperation[2], the protections it offers cover basic human rights and treatment.

On June 30, 2016 the UN Human Rights Council (UNHRC) adopted the resolution, establishing an independent expert for the protection against violence and discrimination based on sexual orientation and gender identity[3].  The UNHRC recommended the position of an independent expert after reports of widespread violence and deaths in the LGBTI community[4]. It mandates the expert with the responsibilities to assess implementation of international instruments, to raise awareness of discrimination, to work in cooperation with States, to address forms of violence, and to conduct advisory services[5]. Vitit Muntarbhorn was appointed as the independent expert on September 30, 2016[6]. However, the resolution is currently receiving strong opposition with a call for cancellation from a coalition of African states. .

Through a separate resolution to the General Assembly, the African bloc is seeking to suspend and subsequently repeal the independent expert position and the UNHRC’s resolution altogether[7]. Sierra Leone initiated a resolution on behalf of the Group of African States to “defer consideration” of the position[8], to delay monitoring and to suspend activities pursuant to a determination of the legality of the HRC’s resolution[9].

The African States are claiming that the UNHRC’s resolution violates international law. They claim that it delves into matters reserved for domestic jurisdiction, that it gives priority to sexual orientation discrimination while it ignores other types of African discrimination and development[10], and that it lacks universal support[11]. Further, the African Group claims that sexual orientation and gender identity should not be linked to international human rights instruments[12]. Amongst the countries of the African opposition is South Africa, which had also abstained from voting in the UNHRC’s resolution[13].

The opposition’s reaction is not a surprise. However, South Africa’s stance is surprising as it has contributed to and upheld the development of progressive jurisprudence[14]. It is also surprising due to the country’s discrimination struggles, Constitutional guarantees to universal rights, and recent actions regarding protection of LGBTI rights[15]. South Africa abstained from voting during the UNHRC’s resolution because of alleged “unnecessary divisiness”[16]. It currently appears to agree with the African States’ stance that the UNHRC resolution jeopardizes “the entire international human rights framework as [it] create[s] divisions” and that it does not fit within international law[17].

Even recently, the South African Department of Justice has worked to protect LGBTI rights and the Department of Home Affairs was in the center of controversy by refusing entry to a pastor who had made homophobic hate speeches[18]. So, why did South Africa choose to side with the rest of Africa? Initially abstaining from the vote, but then agreeing with the rest of Africa may be the result of strategic appeasement. South African officials have been criticized for aligning with “Western” beliefs and for persuading the rest of Africa in aligning its politics pursuant to such beliefs[19]. Further, South Africa still owes a large debt to certain African countries for aid during the apartheid and trade to the rest of Africa accounts for $20 Billion of Africa’s trade[20].

The claims that sexual orientation and gender identity should not be included in international law mechanisms are unjustified. Orientation and identity are not outside of international law as they are protected in the principles of universality and non-discrimination established in the Universal Declaration of Human Rights and the International Covenant on Civil Political Rights[21] [22] [23]. Also, the claim that UNHRC’s agenda on sexual orientation and gender identity overlooks issues relating to racism is frivolous. The UNHRC resolution’s purpose is to support a broad agenda, to strengthen mechanisms, and to address issues of racism, discrimination, and related intolerance in any form[24]. Further, claims that the UNHRC resolution violates sovereignty and non-intervention purport a misunderstood role of the appointed expert. The expert is not a decision-making or enforcement body, but instead its purpose is to address issues, raise awareness, engage in dialogue, and to work in cooperation with States for any recommended implementations[25]. Lastly, the unprecedented suspension of the UNHRC resolution would hinder the Council’s institutional architecture and autonomy[26], which would render it “toothless” to future oppositions[27].

If the African bloc’s resolution is put forward for a vote to the General Assembly, South Africa will likely abstain in order to appease Western Countries and to be in accordance with its constitutional guarantees. The backlash from voting against the UNHRC resolution would be too damaging to the State’s reputation and politics as the champion of anti-discrimination following the end of apartheid. It would receive criticism from governments and NGOs alike. South Africa’s stance is most likely a “bluff” in order to appease other African countries until the issue has lost its “steam.”

US officials strongly support the UNHRC resolution and warn that re-opening the resolution to opposition could undermine the council’s ability to function and enforce their mandates. They noted that such review will weaken the Council, as it has never been subject to intervention by the UN General Assembly[28]. Further, a representative from the EU reminded that the States must “protect the human rights of all individuals without distinction of any kind.”[29] The representative emphasized that they have an international obligation to uphold the UNHRC resolution and the opposition lacks legal foundation to oppose it.[30] Amidst Western warnings, the African bloc’s resolution has a good chance of obtaining the necessary 97-vote simple majority to pass,[31] with the support of the African States and almost every State in the Organization of Islamic Cooperation.[32]

The vote on the African States’ resolution in the General Assembly was scheduled for Tuesday, November 8, 2016. However, the UN has delayed talks and voting on canceling the independent expert and amending the UNHRC resolution until later this month, November 2016.[33]

John Rizos is a 3L at the University of Baltimore School of Law with a concentration in International Law. He has an interest in human rights and international criminal law. In addition to being a CICL Fellow, John has served as the Secretary for Phi Alpha Delta Law Fraternity and is currently enrolled in HarvardX’s online course, “Humanitarian Response to Conflict and Disaster.” In June 2016, John was a member of the CICL Fellows team that, under the supervision of Professor Moore, assisted in drafting an amicus brief to the Extraordinary Chambers in the Courts of Cambodia, which was later approved and published. John 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://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law

[2] http://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/RES/32/2

[3] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html

[4] http://afkinsider.com/134853/african-countries-oppose-new-un-gay-rights-envoy-world-bank-appoints-lgbt-promoter/

[5] http://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/RES/32/2

[6] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[7] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html

[8] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[9] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html

[10] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF

[11] http://www.cnsnews.com/news/article/patrick-goodenough/un-african-and-islamic-states-reject-western-led-lgbt-human-rights

[12] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html

[13] http://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/RES/32/2

[14] http://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law

[15] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[16] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF

[17] http://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law

[18] http://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law

[19] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF

[20] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF

[21] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[22] http://www.un.org/en/universal-declaration-human-rights/

[23] http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[24] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[25] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[26] http://www.cnsnews.com/news/article/patrick-goodenough/un-african-and-islamic-states-reject-western-led-lgbt-human-rights

[27] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[28] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[29] http://www.un.org/en/universal-declaration-human-rights/ at Article 2.

[30] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html

[31] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[32] http://afkinsider.com/134853/african-countries-oppose-new-un-gay-rights-envoy-world-bank-appoints-lgbt-promoter/

[33] https://76crimes.com/2016/11/10/opposition-and-delay-confront-anti-lgbt-push-at-u-n/

 


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Is this the End of All Things? Probably Not, But it’s Worth Keeping an Eye Out

Developments in the Realm of Nuclear Weapons and International Relations

Alexander Ayer

Nuclear weapons have only been used in a war twice before, both times at the end of World War II. They were the only two in existence and both possessed by the same country, the US. However, since that time the number of nuclear weapons, the number of countries who possess them, and the destructive potential of these weapons has increased drastically. Even at the height of the Cold War, however, neither the US or the USSR (now Russia), the two major nuclear powers, used nuclear weapons against each other. The concept of Mutually Assured Destruction (or MAD) made the idea of using nuclear weapons unthinkable.[1]  However, that might not be the case anymore.

 

Ayer_Blog3_Photo1.jpg

Bomb in Nagasaki

 

What’s Happening Now?

A few days ago, Russia unveiled a new nuclear weapon, the Satan-2, a weapon that allegedly has the ability to destroy a Texas sized section of the world.[2] Russia also engaged in a nationwide nuclear-chemical attack drill that involved approximately 40 million.[3] Nuclear weapons were recently moved towards Kaliningrad, positioned for a possible strike against the Baltic states of Latvia, Lithuania, and Estonia.[4] The US, also began running its first long range-nuclear bomber drills towards Russia since the end of the Cold War.[5] US presidential candidate Donald Trump, reportedly asked three times during a foreign policy briefing why the US doesn’t use its nuclear weapons, and had stated publicly that he would be ok with more countries possessing nuclear weapons.[6] A Russian politician in the Duma announced that the election of Hilary Clinton could mean World War III and a nuclear conflict.[7] Russian President Vladimir Putin also recently signed into effect a new military doctrine which seems to consider at least some nuclear weapons for more conventional use.[8] All of this can be enough to ask, how did we get here when just a few years ago the US-Russian relationship was at least cordial? Also, the more important issue of could this be the end of the human species and what can legally be done?

ayer_blog3_photo2

 

The Law Involved

Up until recently, both the US and Russia have been moving towards greater arms reaction. The Strategic Offensive Reduction Treaty (SORT), signed by the US and Russia back in 2001 was a new effort to reduce the number US and Russian nuclear warheads.[9] The plan was to run through 2012; and there was even an attempt to reset US-Russian relations to for get the old Cold War rivalry back in 2009.[10] However in recent years the relationship has come under significant strain. Russian involvement in the Ukraine conflict, the annexation of the Crimean peninsula, and Russian military support for the Assad regime in Syria had put the US into direct opposition with Russia.

So with all of these developments, could nuclear war be far off? Under international law, the use of nuclear weapons is not explicitly forbidden. Under a famous advisory opinion issued by the International Court of Justice (ICJ), the use of nuclear weapons is not an inherent violation of international law.[11] So there is no clear international rule to stop the US and Russia from destroying each other; however there are plenty of reason to think why this won’t happen regardless.

Is There Hope?

Fortunately, things may not be as bad as they seem. For example, recent fliers seeking funds to build bomb shelters in Moscow turned out to be a scheme to trick money out of residents.[12] Further, there is some thought that the creation of a 20 day bread ration plan in St. Petersburg is more of a pliability stunt than an actual plan, given a wide variety of factors including questionable math used to determine how much bread everyone will need and also that in the event of wide spread nuclear war one is going to need rations for more than 20 days.[13]
Further, while politicians talking about the spread or use of nuclear weapons is troubling, there is the need for perspective. While the Russian politician, Vladimir Zhirinovsky, warning of nuclear war is favored by the Russian Presidency, Zhirinovsky himself is only in the third largest party in the Russian legislature; holding only 39 of the 450 seats.[14]

In terms of Russia’s nuclear policy, while they have developed the new-super bomb, they seem more focused on creating lower yield nuclear ordinance designed to completely destroy a specific target (like an air field) in the hopes of psychologically overwhelming their opponents.[15] This isn’t comforting, but it also isn’t the Armageddon that most people envision as nuclear war. Similarly, while Russia has changed its military doctrine in relation to nuclear weapons, and has indicated a willingness to categorize at least some nuclear weapons with conventional arms, the doctrine itself states that the use of nuclear arms is reserved for “In the event of aggression…” or “When the very existence of the state is in jeopardy.”[16] Which seems to be more or less in line with how nuclear weapons have been viewed in the past – only used in defense and as a last resort.

Finally, even as the world seems to be prepping for destruction, people are still working towards peace. Despite peace settlements falling apart twice in the Ukraine, Germany is holding another round of negotiations between Russia, Ukraine, France, and Germany.[17] While the German Chancellor is skeptical that anything permanent will happen, there is hope that at least a road map for peace will be worked out by the end of the month.[18] If this can be resolved it could go a long way towards settling at least some tension between Russia and the west, including the US.

ayer_blog3_photo3

So Nothing to Worry about?

For the moment, annihilation is probably not imminent; however, our existence may be more precarious then we like to think. We still live in a world were one bad dispute could end life as we know it.  Many seem to have become too cavalier or complacent in how we view these weapons. Even if a nuclear strike is small (comparatively) and precise there is no guarantee how others (especially with their own nuclear weapons) would respond. Again, there has only ever been one precedent, and that was when there were only two nuclear weapons on earth and both were controlled by the same country. Since that time we have come close to destroying ourselves several times, sometime intentionally, and other times completely by accident.[19] We must re-commit ourselves to trying to reduce the number of nuclear weapons in the world and maintain only what is needed. We must also re-commit ourselves to handling them with the gravity that these weapons deserve considering that they have the potential to be extinction of the human species. We should focus on binding ourselves and others to prevent the spread of these weapons to where they can’t be controlled. We should seek a peaceful solution whenever possible and, when peace isn’t possible, to making sure that the wars which are waged are not fought in a manner that would leave us with a world unfit to inhabit. This is what is at stake.

Alexander Ayer  is a third year (3L) law student at the University of Baltimore School of Law. His undergraduate studies were completed at Hood College, where he majored in history and graduated cum laude in 2014. Alexander is expected to graduate from the University of Baltimore School of Law in the Spring of 2017. As part of his international law background he took part in a study abroad program at the University of Aberdeen School of Law in Scotland. Alexander is drawn to international law by the comparative approach of seeing how different societies solve similar problems in different ways, as well observing how history has effected the laws and policies of various nations, and the behaviors demonstrated by counties interacting with each other on the world stage. In addition to international law, Alexander is also interested in disability law and copyright law.

[1] http://www.cbsnews.com/news/60-minutes-risk-of-nuclear-attack-rises/

[2] http://www.npr.org/sections/parallels/2016/10/28/499754655/a-dangerous-situation-as-u-s-russia-tensions-spill-over-to-nuclear-pacts

[3] http://www.cnn.com/2016/10/29/europe/russia-nuclear-drills/

[4] https://www.washingtonpost.com/news/worldviews/wp/2016/10/15/are-the-russians-really-preparing-for-war/

[5] http://www.cbsnews.com/news/60-minutes-risk-of-nuclear-attack-rises/

[6] http://www.cnbc.com/2016/08/03/trump-asks-why-us-cant-use-nukes-msnbcs-joe-scarborough-reports.html, & https://www.washingtonpost.com/news/monkey-cage/wp/2016/04/06/should-more-countries-have-nuclear-weapons-donald-trump-thinks-so/

[7] http://www.reuters.com/article/us-usa-election-russian-trump-idUSKCN12C28Q?il=0

[8] http://www.cbsnews.com/news/60-minutes-risk-of-nuclear-attack-rises/

[9] http://www.state.gov/t/isn/10527.htm

[10] https://www.washingtonpost.com/news/worldviews/wp/2014/03/17/the-failure-of-the-u-s-russia-reset-in-9-photos/

[11] http://www.icj-cij.org/docket/files/95/7497.pdf

[12] https://www.washingtonpost.com/news/worldviews/wp/2016/10/15/are-the-russians-really-preparing-for-war/

[13] https://www.washingtonpost.com/news/worldviews/wp/2016/10/15/are-the-russians-really-preparing-for-war/, & http://www.nucleardarkness.org/warconsequences/hundredfiftytonessmoke/

[14] https://www.washingtonpost.com/news/worldviews/wp/2016/10/15/are-the-russians-really-preparing-for-war/

[15] http://www.cbsnews.com/news/60-minutes-risk-of-nuclear-attack-rises/

[16] http://www.cbsnews.com/news/60-minutes-risk-of-nuclear-attack-rises/

[17] http://www.bbc.com/news/world-europe-31436513

[18] https://www.theguardian.com/world/2016/oct/20/ukraine-peace-process-leaders-agree-roadmap-to-revive-talks

[19] https://www.youtube.com/watch?v=1Y1ya-yF35g