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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Governmental Media Regulation: U.S. vs. Bhutan

Raiven Taylor

As we all know, the media is used to spread the most recent news and current events. What many people do not know is that the media have rules and regulations they must follow in order to stay on TV and/or the radio. Many rules that regulate the media differ from country to country. Although the U.S. Constitution’s First Amendment guarantees the right to freedom of the press, usually with minimum regulations, other countries, such as Bhutan, which will be explored in this blog, do not have such freedom.

The U.S. gives most leeway to print media, such as newspapers, magazines, and flyers.[i] The only real regulation for print media is to deter defamation. [ii]  Defamation happens when untrue information is printed that may cause harm to someone.[iii] Defamation can be either written (libel) or communicated verbally (slander). Broadcasting media are a little more regulated than print.

Media1

Broadcasting media are also regulated against defamation. In fact, broadcasters and their networks can be sued for slander.[iv] Broadcasting is also heavily regulated by the Federal Communications Commission (FCC).[v] The FCC polices the content of the airwaves and has the authority to fine or revoke broadcasting licenses for violating any of the following: broadcasting obscene programs at any time, broadcasting indecent programs during certain hours, or broadcasting profane language during certain hours.

Having regulations on the media could eventually spill into social media. However, to date, the U.S. has only come up with basic regulations on social media, such as the right of privacy, how one may create social media policies, and protocols for marketing on social media.[vi] Because social media is a growing media source, it has been very hard for the government to regulate.

Media2

On the other hand, Bhutan has more restrictions on media outlets. Even though Bhutan claims to have a Constitution allowing free speech and opinion, Bhutan has an Act that prohibits criticism of the king as well as anything that may undermine or attempt to undermine the security and sovereignty of Bhutan.[vii] The government even restricts and censors topics that involve Nepali-speaking residents having to leave Bhutan.[viii] Many of the media outlets hesitate to push the limits of the regulations because the media depends on the government for funding and support.[ix]

Bhutan is a country that is far behind the times on Internet and television, both of which arrived in 1999.[x]  Even though Bhutan was behind the times, almost 10% of their population is on social media.[xi] Social media gives the Bhutanese an outlet to express their own opinions and views and changed the idea of criticizing the government, giving the younger generation an opportunity to have an opinion. [xii] However, due to the growth of social media and the presence of the population on social media in Bhutan, the government decided in 2014 to draft policy on the use of social media.[xiii]

Media3

The government agreed that a huge benefit of having a social media policy would be for the government to engage its citizens and officials in the use of social media to share government information as a developmental tool for social, economic, and political change.[xiv] Discussions concerning social media use in Bhutan have even led to the idea of incorporating curriculum in the schools to have a social media component.[xv] Even though the Bhutanese government may appear to support the idea of social media and is not trying to regulate social media, the government has created guidelines one must follow when using social media. These include the requirement to be accurate, to never post anything malicious or misleading, to respect the Constitution and all laws, and to act in good judgment.[xvi] These are many things that young people do not think of when posting their opinions.

Given an option between the United States and Bhutan, I would choose to use social media in the U.S. The U.S. may regulate TV, radio, and print, but it does not regulate it in a way that would affect one’s rights. The U.S. can write, state, or show on TV what’s going on in the government, even if they disagree with what the government is doing. On the other hand, Bhutan regulates its media outlets in a way that only shines light on the government’s positive aspects instead of the negative. The Bhutanese government does not allow its citizens to share their opinions if they disagree with what the government is doing. While beneficial to maintaining the status quo in Bhutan, this restriction of rights affects the rights of the media and Bhutanese citizens alike.

Raiven Taylor is third year law student at the University of Baltimiore School of Law and is completing her concentration in International Law. She has an undergraduate degree in Political Science from Bowie State University. She has studied abroad in London, England and Clermond-Ferrand, France. She is an Senior Staff Editor for the Journal for International Law as well as Secretary for the International Law Society. Additionally, Raiven is a Rule 16 student attorney in the Immigrant Rights Clinic. Her passion and interest in international law is human trafficking and international human rights law.

[i] http://study.com/academy/lesson/rules-governing-the-media-definition-examples.html

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] http://blogs.forrester.com/nick_hayes/13-07-31-five_common_legal_regulatory_challenges_with_social_media

[vii] https://freedomhouse.org/report/freedom-press/2013/bhutan

[viii] id.

[ix] Id.

[x] http://www.bbc.com/news/world-asia-25314578

[xi] Id.

[xii] Id.

[xiii] http://www.undp.org/content/bhutan/en/home/presscenter/articles/2015/01/14/bhutan-forms-its-first-social-media-policy.html

[xiv] Id.

[xv] Id.

[xvi] http://www.gnhc.gov.bt/wp-content/uploads/2011/05/RGoB-Draft-Social-Media-Policy.pdf

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Unaccompanied Minors: Keep Them or Send Them Back? A Political Game

Annielle Makon

Tens of thousands of undocumented, unaccompanied immigrants under the age of 18 have crossed into the United States every year.[1] Since 2013, however, the United States has seen an unprecedented increase in the number of unaccompanied migrating children arriving to the country, predominately at the U.S./Mexico border.[2] The majority of the migrant children have come from Honduras, Guatemala, and El Salvador, three nations plagued by organized crime, drug trafficking, and widespread corruption.[3] Gang violence in El Salvador and in urban areas of Guatemala have escalated dramatically in recent months since a weak truce among rival gangs has evaporated.[4] Gang violence has plagued the youth, especially because the gangs are targeting schools and neighborhoods.[5] This massive influx of migrants is placing extra pressure on US lawmakers, spurring even more debate on how to reform immigration policy.[6] President Obama has even called the situation a humanitarian crisis and has sent federal officials to create temporary housing in three states for the migrant children.[7]

Migrant Surge

The Dangers of Migrating

Many flee to escape the horrors of their home country.  Unbeknownst to them, the horror of the migration journey is equally terrible. There have been stories of extreme danger and criminal mistreatment along their journey.[8] Child migrants have experienced abuse and violence at the hands of drug and human traffickers, and even law enforcement.[9] Women and girls are at a high risk for rape and sexual assault.[10] Minors who begin their journey to the United States sometimes find that what they had agreed to do in the US changed or they are required to work or provide sex to “clients” to pay off their debts.[11] Additionally, many of those who are accompanied by smugglers are abandoned at the first sign of trouble, left even more vulnerable than when they began their journey to the United States.[12] Even with these many dangers, migrants continue to make the journey because of the promise of freedom from violence motivates them.

U.S. Government (In)Action

The U.S. immigration system, as a whole, is long overdue for an overhaul. Republicans have passed legislation to force the Obama administration to quickly deport the undocumented immigrants.[13] Yet, the chances of that this legislation becomes a law are slim.

ImmigrantChildren

Currently, many of the unaccompanied minors are being sent to Arizona, though they will not stay there indefinitely.[14] The goal is to process each child within 72 hours and either turn them over to Immigration and Customs Enforcement (ICE) for deportation proceedings or to the Health and Human Services Department (HHSD) to reunite them with their families or place them in foster homes (pending deportation proceedings).[15] In addition, the Obama administration has partnered with the Mexican, Guatemalan, and Honduran governments by placing a public service announcement regarding the dangers of sending unaccompanied minors across the border.[16] Additionally, the Obama administration has stated that the unaccompanied minors are not entitled to any kind of residency or protected status.[17] Yet, they still come.

Domestically, there needs to be reform within the court system. There are roughly 260 immigration judges in the United States and each judge hears about 1,500 cases annually.[18] The unaccompanied Mexican and Central American minors seeking asylum is not as simple as cases from other countries since they often take longer to adjudicate.[19] Whether asylum can be granted to the unaccompanied minor depends on the ability of the minor’s home country government to control non-state actors.[20] Backlog cases have not been this high since 1994, when there were nearly 425,000 cases pending.[21] Yet, they still come.

ChildMigrants

Internationally, the United States owes these children no legal duty. The United Nations Convention on the Rights of the Child (the Convention) is an international human rights treaty that sets out the civil, political, economic, social, health, and cultural rights of children.[22] The Convention defines a child as any individual under the age of eighteen and requires that the state act in the best interest of the child.[23] Article 19 of the Convention states that the parties must “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence.”[24] Therefore, nations that ratify this convention are bound to it by international law.[25]  Although, the United States played an active role in drafting the Convention they have yet to ratify it.[26]  The Convention is unlikely to be ratified in the near future because it forbids both the death penalty and life imprisonment for children.[27] Therefore, by not ratifying the treaty the United States owe no international obligations to the unaccompanied minors. Yet, they still come.

This immigration problem is a complex issue with no easy answers. The main issue should be addressing the root causes of the flight and protecting the children in the process. The US and Central American governments need to address the economic and violence issues that cause these minors to flee. Most importantly, we need to stop treating child migration the same as adults. They should be treated and protected as children. The US government needs to focus its priorities on protection and less on enforcement. These children are in need of protection, not deportation.

Annielle Makon is a third year student at the University of Baltimore School of Law J.D. Candidate (’15). She holds a Bachelor of Arts in Political Science and a minor in Sociology from the University of Maryland Baltimore County. While studying Political Science, Annielle developed a passion for human rights and international relations. In addition to being a CICL Student Fellow, Annielle is an Associate Editor on the Journal of International Law. Annielle also interns at Amnesty International in the Sub-Saharan Africa unit.

[1] Jonathan Ernst, Record number of undocumented minors entering US – report, Reuters (January 31, 2014) http://rt.com/usa/record-undocumented-minors-entering-us-441/.

[2] Mark Seitz et al., Report of the Committee on Migration of the United States Conference of Catholic Bishops, United States Conference of Catholic Bishops (November 2013) http://www.usccb.org/about/migration-policy/upload/Mission-To-Central-America-FINAL-2.pdf.

[3] Ernst, supra  note 1.

[4]Id.

[5]Id.

[6] Ernst, supra note 1.

[7]Bob Ortega, 5 answers: Why the surge in migrant children at border?, The Republic (June 10, 2014) http://www.azcentral.com/story/news/politics/immigration/2014/06/09/immigrant-children-arizona-border-answers/10246771/.

[8] Seitz, supra note 2.

[9] Seitz, supra note 2.

[10] Seitz, supra note 2.

[11] Seitz, supra note 2.

[12] Seitz, supra note 2.

[13] Evan Perez, Number of unaccompanied minors crossing into U.S. tops 60,000, CNN (August 2, 2014) http://www.cnn.com/2014/08/02/us/border-crisis-milestone/index.html.

[14] Ortega, supra  note 7.

[15] Ortega, supra  note 7.

[16] Ortega, supra  note 7.

[17] Ortega, supra  note 7.

[18] Hayley Munguia, The Unaccompanied Minor Crisis Has Moved From The Border To The Courts, Fivethirtyeight (October 2013) http://fivethirtyeight.com/datalab/the-unaccompanied-minor-crisis-has-moved-from-the-border-to-the-courts/

[19] Id.

[20] Id.

[21] Id.

[22] Convention on the Rights of the Child, Sept. 2, 1990, A/RES/44/25.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.


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Authorization to Use Military Force Against ISIL: What the President Wants and Why it Doesn’t Matter

Matt Matechik

What did President Obama “ask” Congress?

On February 11, 2015 President Obama formally approached Congress and implicitly sought their approval to use American military force against the Islamic State of Iraq and the Levant (ISIL). Specifically, the President submitted a draft joint resolution Authorization to Use Military Force (AUMF) and encouraged Congress in a formal letter to pass it.[i]

If passed in its current draft form (highly unlikely), the AUMF would grant the President Congressional approval to use American military forces against ISIL “and associated persons or forces” for a period of up to three years. The draft does not impose any geographic restrictions. Therefore, the President would be authorized to conduct military operations against ISIL in Iraq, Syria, Libya (where ISIL appears to have gained a foothold[ii]) and absolutely anywhere else in the world he deems “necessary and appropriate.”[iii] (NOTE: The AUMF only gives the President the domestic legal authority to enter into either Iraq, Syria, Libya, or other states. This blog will not deal with the international authority the President has to do so.)

Although the draft AUMF would not limit the location of military operations, it does purport to limit their scope. The draft prohibits activity that rises to the level of “enduring offensive ground combat operations.”[iv] The administration claims that this phrase prohibits large-scale long-term military campaigns such as those recently conducted by the United States in Afghanistan and Iraq. However, the stipulation would not prohibit the use of ground forces for less involved purposes such as rescue operations and pursuit of ISIL leadership. Additionally, the AUMF would allow “the use of U.S. forces in situations where ground combat operations are not expected or intended, such as intelligence collection and sharing, missions to enable kinetic strikes, or… other forms of… assistance to partner forces.[v]

This draft language, even with the limitation, is actually very broad, despite what some members of Congress are claiming. The draft intentionally uses open-ended phrasing that President Obama could potentially cite in committing American forces to ground combat.

AUMF ISIS Blog

Why did the President reach out to Congress?

President Obama approached Congress as part of his “commitment to working with Congress… to authoriz[e] the continued use of military force to degrade and defeat ISIL.” The President urged Congress to “join [him] in supporting our Nation’s security… which would show the world we are united in our resolve to counter the threat posed by ISIL.”[vi]

Did the President really “ask” Congress for anything?

No! The language of President Obama’s letter to Congress is extremely precise. A careful reading reveals that the President is not actually asking Congress for anything at all. To the contrary, the letter explicitly states that he already has all the authority he needs.[vii] The President is simply inviting Congress to provide their stamp of approval for military action that he is already undertaking and presumably will continue to undertake with or without Congress.

President Obama’s posture is not surprising. Historically, the sitting President, no matter his party, and Congress have performed a delicate dance around the subject of who controls the use of American military force abroad. The tension between the executive and legislative branches stems from the Constitution, which confers upon the President unspecified powers commensurate with the title “Commander in Chief” while endowing Congress with numerous specific war powers including, but not limited to, the power to “declare war” and “organize, fund, and maintain the nation’s armed forces.”[viii]

What about the War Powers Resolution?

This “dance” took on its modern form in 1973 when Congress passed the War Powers Resolution (WPR) to “to insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.”[ix] The WPR, at least on paper, requires the President to involve Congress at various points before, during, and after his decision to use force. One of its most controversial provisions requires the President to terminate military action within sixty days of its initiation unless Congress has declared war, extended the sixty-day period, is physically unable to meet, or provided statutory authorization.[x]

In practice, the WPR has done little to prevent the President from unilaterally committing American forces to foreign theatres. The sitting President, no matter his party, typically finds some way to circumvent the WPR’s purpose of involving Congress while still purporting to be consistent with the WPR. The President usually claims he already has all the authority he needs by virtue of his title as Commander in Chief and/or he interprets a statute in a particular way to find the Congressional approval he needs.

AUMF ISIS Blog 2

Sixty Days?! Haven’t we been fighting ISIL for months?!

Yes! The present scenario illustrates the WPR’s questionable influence. President Obama initiated a sustained air campaign against ISIL targets in Syria on September 22, 2015.[xi] Since that time there has been no declaration of war, no extension of the sixty-day period, and no problems with Congress meeting. Under the WPR, President Obama therefore has two choices: obtain Congressional statutory approval for the military action sixty days after initiation or terminate the mission. And yet, only now, 142 days later, far past the sixty-day deadline, is the President seeking statutory authorization and, as noted above, he is not truly even asking for it.[xii]

It should be noted that President Obama’s apparent disregard for the WPR is not unique to his administration. President George H.W. Bush ordered thousands of American servicemen to Somalia during December 1992 without explicit approval from Congress. He “found” statutory approval for the military deployment by broadly interpreting a statute that supported a US humanitarian mission in Somalia. President Bill Clinton ordered over 20,000 American troops to invade Haiti during September 1994 without explicit approval from Congress. His primary argument for nixing Congress was that the operation did not rise to the level of “war” requiring a declaration and therefore Congress need not be involved. These are only a few examples of many.

What happens now?

War (at least the political kind)! Congress must debate the draft AUMF and then either pass it as written, pass it with changes, or pass no AUMF at all. Ultimately, whatever Congress decides will not matter. If they pass any AUMF, the granted authority will be largely for symbolic purposes only. If they do not pass an AUMF, it is all but certain that President Obama will continue to commit American forces to the fight anyway. For the President, it’s a win-win. He will either by a wartime Commander-in-Chief enjoying the support of Congress as he battles America’s enemies abroad or he will be the President who was willing to stand up to the evil that is ISIL when Congress seemingly refused.

AUMF ISIS Blog 3

The political game surrounding the draft AUMF is likely to continue for some time. Politicians will squabble and legal scholars will debate the legal powers of he executive and legislative branches. Meanwhile, the United States is already at war with ISIL, regardless of who formally signs off on it, and will be for the foreseeable future.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time for the U.S. Federal Government as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University. All views in this blog post are Matthew’s own views and do not represent that of the U.S. Government. 

[i] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[ii] http://www.telegraph.co.uk/news/worldnews/islamic-state/11418966/Islamic-State-planning-to-use-Libya-as-gateway-to-Europe.html

[iii] http://www.whitehouse.gov/sites/default/files/docs/aumf_02112015.pdf

[iv] http://www.whitehouse.gov/sites/default/files/docs/aumf_02112015.pdf

[v] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[vi] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[vii] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[viii]  U.S. Const., art. II, § 2, cl. 1, U.S. Const., art. I, § 8, cls. 1114.

[ix] 50 U.S.C.A. § 1541.

[x] 50 U.S.C.A. § 1544.

[xi] http://www.whitehouse.gov/the-press-office/2014/09/23/statement-president-airstrikes-syria

[xii] President Obama seems to be keeping the 2001 AUMF in his back pocket to claim Congressional authorization even if Congress does not pass an ISIL-specific AUMF. The 2001 AUMF authorized the President to use force against “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,  2001, or harbored such organizations or persons, in order to prevent any  future acts of international terrorism against the United States by such nations, organizations or persons.” The Obama administration suggested as early as September 2014 that they could rely on the 2001 AUMF. See http://www.whitehouse.gov/the-press-office/2014/09/23/background-conference-call-airstrikes-syria. This position is problematic given that ISIL, a new group distinct from al-Qaida, had nothing to do with the September 11 attacks.