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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Donbass Passports: The Russian Itinerary for Certain Individuals

 

John Rizos

Russian Prime Minister Vladimir Putin signed an executive order on Saturday, February 18, 2017 in which he declared recognition of identification documents issued by eastern Ukrainian separatist authorities.[1] The order allows Ukrainian citizens and stateless persons who live in certain parts of the Donetsk and Lugansk regions of Ukraine to enter Russia without a visa or a visa application[2] by presenting civil registration documents issued by rebels in eastern Ukraine.[3] Documents include identification documents, diplomas, birth certificates, marriage certificates, and vehicle registration plates,[4] which would allow people to not only enter and travel to Russia, but also to work and study in Russia.[5] Ukrainian separatist authorities began distributing passports in January 2017.[6] It is estimated that 48,000 passports have been distributed in the region.[7]

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Ukrainian forces have been fighting pro-Russia and Russia-backed separatist rebels in the Donbass area of eastern Ukraine since May 2014[8], following a referendum vote in favor of self-autonomy from the area’s two main regions, Donetsk and Lugatsk, to be recognized as the Donetsk People’s Republic (DPR) and the Lugansk People’s Republic (LPR)[9].

On September 5, 2014, the Ukrainian Government and the pro-Russian separatists signed the Minsk Protocol in order to implement a resolution and a ceasefire agreement under the auspices of the Organization of Security and Cooperation in Europe (OSCE). The Protocol was comprised of 12 objectives, including an immediate bilateral ceasefire, withdrawal of illegal armed groups, decentralization of power and local elections in Donetsk and Lugatsk, OSCE monitoring, and continuation of national dialogue.[10] On September 19, 2014, there was follow-up agreement for the removal of heavy artillery from a certain area and the continued OSCE monitoring.[11] However, the Protocol was a failure as intense fighting and violations continued from both sides.[12]

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On February 12, 2015 Vladimir Putin, Angela Merkel, Francois Hollande, Petro Poroshenko signed the Minsk II agreement in order to implement and to add onto the measures from the Minsk Protocol.[13] The measures were similar to the Protocol, however, they also included a renewed ceasefire to be implemented by February 15, 2015, constitutional reforms and decentralization from Donetsk and Lugatsk by the end of 2015, safe delivery of humanitarian aid based on an international mechanism, withdrawal of all foreign-armed formations, full social and economic restoration in affected areas, and full Ukrainian control over conflict-zoned Russian border[14]. The leaders also agreed, under a joint declaration, that they were committed to Ukraine’s sovereignty and territorial integrity.[15] The UN Security Council adopted Resolution 2202 in February 17, 2015, in which it endorsed the ceasefire agreements and the full implementation of the Minsk II agreement.[16]

The Minsk II stalemate was eventually disrupted by resurgences from both sides,[17] mainly due to the failures by Ukraine to adapt to the DPR’s and the LPR’s political and economic changes, specifically, regarding constitutional reforms.[18] The Russian Foreign Ministry stated that the order is temporary[19] and based on humanitarian grounds[20] until the Minsk deal and the Ukrainian obligations towards Donetsk and Lugansk have been implemented.[21]

Although the order has been well-received by the DPR and the LPR, Ukrainian and US officials have declared it contradictory to any peace agreements between Russia and Ukraine. Ukraine President Petro Poroshenko has labeled the order as a violation of international law[22] and the Minsk agreements[23]. Ukraine Foreign Minister Pavlo Klimkin stated that the Russian order is an intentional military and humanitarian escalation.[24] The US Embassy to Ukraine stated that it contradicts the agreed-upon goals of the Minsk Agreements.[25] Following a meeting with US Vice President Michael Pence, Poroshenko rejoiced in the US’s support of Ukraine.[26]

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Further, German and EU officials have stated that they will not recognize any documents issued by the separatist authorities[27] as they, alongside Russia’s order, contradict the Minsk Agreements by undermining Ukrainian unity and territorial integrity.[28] The OSCE also declared that the order and the distribution of documents contradict any peace-settlement objectives between Ukraine and Russia.[29] The OSCE Chairmanship declared that documents, such as the passports, are only valid on a sovereign territory, such as Ukraine, if they are issued by internationally recognized authorities.[30] The unilateral actions of document distribution and recognition jeopardize peaceful resolution, especially if they are not finalized under the auspices of the OSCE.[31] Such actions “chill” relations among the parties involved, which result into difficult implementation of the objectives in the Minsk Agreements.[32]

Russian Foreign Minister Sergey Lavrov does not believe that the order violates international law, since the law “does not prohibit the recognition of documents needed to implement the rights and freedoms guaranteed by the authorities which are not internationally-recognized.”[33] Contrarily, Lavrov rebutted accusations of international law violations by OSCE Secretary-General Lamberto Zannier by stating that the DPR and the LRP authorities and leaders were actually recognized parties to the conflict by signing the Minsk Agreements, which had been approved by the UN Security Council.[34]

Kremlin Spokesman Dmitry Peskov agreed that the order does not violate international law as it is merely “the de jure alignment of the situation that existed de facto.”[35] The spokesman indicated that the order is based solely on humanitarian grounds instead on grounds for recognizing statehood by claiming that the embargo on the Donbass by Kiev prohibits persons in the DPR and LPR from renewing and/or acquiring necessary documents to seek refuge or asylum in another county.[36]

Russia’s order seems dubious. The Foreign Minister is playing “fence politics” by switching Russia’s legal argument for recognizing separatist authorities in order to not upset the international lawmakers or to divert them from investigating the possibility that Russia is providing actual support to the separatists. Further, basing the order on humanitarian grounds is a contrived effort for persuading the rest of the world that the order is necessary, instead of damaging to Ukraine’s integrity and beneficial to Russia’s stance. The order is in violation of the peace agreements and of international law, as it is enforced unilaterally by Russia, without accordance to the Minsk Agreement. It also demonstrates recognition of competent authorities, which is an indicator of recognition of statehood, without consultation of the agreed-upon self-autonomy Minsk objectives. Since the UN Security Council, which operates on international law, has adopted and endorsed the Minsk Agreements, the violations also violate UN law and, thus, international law.

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 has completed HarvardX’s online course, “Humanitarian Response to Conflict and Disaster.” In June 2016, John was a member of the 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. John currently serves as a MD Rule 19 Student-Attorney with the Juvenile Justice Project at the University of Baltimore.

[1] http://english.cctv.com/2017/02/19/ARTIBZihT9cbzHu5jM3SPOSW170219.shtml

[2] http://english.cctv.com/2017/02/19/ARTIBZihT9cbzHu5jM3SPOSW170219.shtml

[3] http://www.euronews.com/2017/02/20/russia-defends-decision-to-recognise-rebel-passports-in-eastern-ukraine

[4] http://www.globaltimes.cn/content/1033802.shtml

[5] http://www.globaltimes.cn/content/1033802.shtml

[6] http://www.globaltimes.cn/content/1033802.shtml

[7] http://www.euronews.com/2017/02/20/russia-defends-decision-to-recognise-rebel-passports-in-eastern-ukraine

[8] http://www.euronews.com/2017/02/20/russia-defends-decision-to-recognise-rebel-passports-in-eastern-ukraine

[9] https://www.theatlantic.com/international/archive/2014/05/referendum-on-self-rule-in-ukraine-passes-with-over-90-of-the-vote/362062/

[10] http://uk.reuters.com/article/ukraine-crisis-summit-idUKL5N0VK2C520150210

[11] http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/573951/EPRS_BRI(2016)573951_EN.pdf

[12] http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/573951/EPRS_BRI(2016)573951_EN.pdf

[13] http://www.europarl.europa.eu/EPRS/EPRS-Briefing-548991-Minsk-peace-summit-FINAL.pdf

[14] http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/573951/EPRS_BRI(2016)573951_EN.pdf

[15] http://www.europarl.europa.eu/EPRS/EPRS-Briefing-548991-Minsk-peace-summit-FINAL.pdf

[16] https://www.un.org/press/en/2015/sc11785.doc.htm

[17] http://uk.reuters.com/article/uk-ukraine-crisis-documents-russia-idUKKBN15Z1N5

[18] https://www.rt.com/news/378032-peskov-passports-ukraine-east/

[19] http://www.euronews.com/2017/02/20/russia-defends-decision-to-recognise-rebel-passports-in-eastern-ukraine

[20] http://uk.reuters.com/article/uk-ukraine-crisis-documents-russia-idUKKBN15Z1N5

[21] http://english.cctv.com/2017/02/19/ARTIBZihT9cbzHu5jM3SPOSW170219.shtml

[22] http://english.cctv.com/2017/02/19/ARTIBZihT9cbzHu5jM3SPOSW170219.shtml

[23] http://www.euronews.com/2017/02/20/russia-defends-decision-to-recognise-rebel-passports-in-eastern-ukraine

[24] http://en.interfax.com.ua/news/general/404643.html

[25] http://www.globaltimes.cn/content/1033802.shtml

[26] http://www.globaltimes.cn/content/1033802.shtml

[27] http://www.euronews.com/2017/02/20/russia-defends-decision-to-recognise-rebel-passports-in-eastern-ukraine

[28] http://uk.reuters.com/article/uk-ukraine-crisis-documents-russia-idUKKBN15Z1N5

[29] http://en.interfax.com.ua/news/general/404643.html

[30] http://en.interfax.com.ua/news/general/404643.html

[31] http://en.interfax.com.ua/news/general/404643.html

[32] http://en.interfax.com.ua/news/general/404643.html

[33] http://www.euronews.com/2017/02/20/russia-defends-decision-to-recognise-rebel-passports-in-eastern-ukraine

[34] https://dninews.com/article/russian-mfa-dpr-and-lpr-leadership-recognized-signing-minsk-agreements

[35] https://www.rt.com/news/378032-peskov-passports-ukraine-east/

[36] https://www.rt.com/news/378032-peskov-passports-ukraine-east/

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They Who Shall Not Be Named: The Unspoken Situation in Myanmar (Part Deux)

Kia Roberts-Warren

Last semester, I discussed the dire situation of the Rohingya in Myanmar. It seemed like Ms. Aung San Suu Kyi was working to bring a peaceful solution with the Rohingya. The situation seemed hopeful. Yet, here we are once again discussing this situation.

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“Things Have to Get Worse Before They can Get Better?”

On October 9, 2016, the situation escalated, resulting in death. The Harakah Al-Yaqin launched three predawn attacks on three police border posts.[1] One of the posts was the security headquarters; the assault involved several hundred assailants and included planting improvised explosive devices and setting an ambush on the approach road, delaying the arrival of army reinforcements, while the attackers looted the armory.[2] On November 12, 2016, in another encounter, a senior army officer was killed.[3]

The Tatmadew, the Myanmar military, retaliated with a counterinsurgency operation. This operation was disproportionate and failed to distinguish between civilians and combatants.[4] This resulted in about 1,500 buildings being torched in the township of Maungdew, an estimated 65,000 people have fled to Bangladesh as a result.[5] Documentation shows extrajudicial killings, rapes, arbitrary arrests, and beatings by the government security forces.[6] The Tatmadew have also almost entirely sealed off the northern area of Arakan in the Rakhine State.[7] The government has banned the Rohingya from using their boats to fish in order to “prevent insurgents from leaving or entering the country by sea,” leading to many risking their lives on makeshift rafts in order to get food for their families.[8]

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These human rights violations by the Tatmadew have not been handled well by the government. The government has admitted that people have been found dead and that those arrested were suspected members of Harakah Al-Yaqin and their supporters.[9] However, the government’s rebuttal to the human rights abuses have been undesirable. The country’s Attorney General’s office have posted “Fake Rape” on its website to discredit reports that the Tatmadew officers have committed rape.[10] Furthermore, the government has denied accredited journalists and human rights investigators access to verify the abuse.[11] The government formed a special investigative committee led by former General Myint Swe (now Vice President of Myanmar) to look into the October violence. Unsurprisingly, the committee quickly dismissed any and all claims of misbehavior by security forces.[12]

However, a few weeks ago the advisory committee created by Aung San Suu Kyi and headed by Kofi Annan met with Rakhine Buddhists and Rohingya residents from two villages.[13] The Secretary of Kaman National Development Party, Tin Hlaing Win, met with the advisory committee to tell the committee about the Rohingyas losing their rights over the last four years and their wish to return home.[14] The committee told Win that that would submit their demands to the government with their recommendations.[15]

  Over forty Myanmar-based civil society groups issued a statement asking for an independent investigation by the international community to into the human rights abuses by the Tatmadew.[16] Specifically, these groups requests that an investigation  “fully assess the totality of the situation in Rakhine state and provide clear recommendations for the current government to effectively address and prevent further problems in the Rakhine state.”[17] This statement came a day before foreign ministers of the Organization for Islamic Cooperation, an intergovernmental body of 57 member nations, met in Malaysia to discuss the plight of the Rohingya in Rakhine state.[18]

“The Other Side of the Coin: Harakah Al-Yaqin”

Although many Rohingya are peaceful, the October attack was launched by a group of Rohingya that the International Crisis Group has labeled the group as a Muslim insurgency. The group Harakah Al-Yaqin (the Faith Movement) was established after the 2012 riots between Muslims and Buddhists and is currently a group of twenty Rohingya who have experience in modern guerilla warfare and are leading operations in Northern Arakan.[19] A committee of Rohingya emigres based in Mecca oversees Harakah Al-Yaqin.[20] The Harakah Al-Yaqin have obtained fatwas from senior clerics in Saudi Arabia, United Arab Emirates, and Pakistan to enhance its religious legitimacy, backing its cause under Islamic law.[21] The group has spent the last two years training hundreds of local recruits in guerilla warfare and explosives.[22] There are some indications of training and solidarity links with international jihadist organizations, but it is important to distinguish the aims and actions of the Harakah Al-Yaqin – to secure the rights of the Rohingya in Myanmar using insurgency tactics against security forces.[23]

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“Momma is Stepping in”

  As a result of the escalating violence and the actions of the Myanmar government, the United Nations human rights envoy to Myanmar, Yanghee Lee, went on her biannual 12-day visit in January.[24] Lee had discussed with Aung San Suu Kyi the security situation in the northern Rahkine State, the reports of the abuses by the security forces, and the increasing need for humanitarian assistance for people displaced by fighting between the government army and ethnic guerilla groups in war-torn Shan and Kachin states.[25]

Lee also met with Vice President Myint Swe, chairman of the special investigation committee, to question the investigation methods of the committee.[26] This was due to the interim report issued on January 3 that the rape allegations resulted insufficient evidence to take legal action and the accusations of torture, arson, and illegal arrests were still being investigated.[27] Moreover, Lee did not allow the authorities to join her when she visited villages in Maungdaw township to talk to residents.[28] She also met with Rohingya Muslims in adjacent Buthidaung township and visited the local prison there.[29] Yet, reports indicate she was denied access to certain areas.

Lee is to submit a report to the U.N. Human Rights Commission in March.[30]

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“Where Do We Go From Here?”

The situation in Myanmar has left the international community thinking “what now?” Until Yanghee Lee releases her report in March, the advisory committee will continue talks with Rakhine Buddhists and Rohingyas in the Rakhine State. The committee will hopefully foster negotiations between the government and the Rohingya to help them attain such basic rights as citizenship, the right to life, access to government resources, among other rights. Meanwhile, the Rohingya continue to wait and suffer.

Unfortunately, the most complicated part of this situation is the intervention of Islamic countries, which only adds to the tension. These countries do not involve the government of Myanmar government in these conferences. Moreover, neither the UN nor the Myanmar government is addressing such involvement. Yet, the primacy of territorial sovereignty makes interference by other States into Myanmar a precarious situation.

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://time.com/4601203/burma-myanmar-muslim-insurgency-rohingya/

[2] Id.

[3] Id.

[4] Id.

[5] https://www.nytimes.com/2017/01/16/opinion/the-rohingya-the-ladys-problem-from-hell.html?_r=0

[6] Id.

[7] Id.

[8] http://www.businessmirror.com.ph/banned-boats-myanmar-rohingya-fish-rafts-junk/

[9] https://www.nytimes.com/2017/01/16/opinion/the-rohingya-the-ladys-problem-from-hell.html?_r=0

[10] Id.

[11] Id.

[12] Id.

[13] http://www.rfa.org/english/news/myanmar/un-rights-envoy-meets-with-aung-san-suu-kyi-to-discuss-volatile-rakhine-state-01182017160404.html

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] http://time.com/4601203/burma-myanmar-muslim-insurgency-rohingya/

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] http://www.rfa.org/english/news/myanmar/un-rights-envoy-meets-with-aung-san-suu-kyi-to-discuss-volatile-rakhine-state-01182017160404.html

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.


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Is this the end of the ICC? No.

Paul Gora

Gambia is the smallest country in Africa with a total population 1.2 million and 4,363 square miles, which makes it slightly less than twice the size of state of Delaware. The Republic of The Gambia signed the Rome Statute on December 4, 1998 and ratified it on June 28, 2002, making it the earliest African country to ratify the treaty. Forty-seven African states were present for the drafting of the Rome Statute in July, 1998. Many of these countries were members of a like–minded group that pushed for adoption of the final statute, with the majority of the 47 voting in favor of adoption, which indicates their involvement in the negotiation and set up of the International Criminal Court.  Among those nations, South Africa, Senegal, Lesotho, Malawi, and Tanzania participated heavily in the discussion as early as 1993 when the International Law Commission presented a draft ICC statute to UN GA for consideration.[1]

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In light of the arrest warrant issued for Sudanese president’s Omar Al Bashir by ICC, there have been an allegations from some Arab and African leaders, as well as certain public figures, organizations, and academia criticizing the ICC as being a Western tool, designed to subjugate leaders of African continent and advance an imperialist/neo-colonial agenda. On the face of it, these criticism can be seen as plausible. The reality, however, is that these criticisms are misplaced, biased, increase and support impunity on the continent.

The recent decision by Gambia to withdraw from the ICC will have a consequential impact on the Court’s future in Africa because countries   like Algeria, Angola, Cameroon, Egypt, etc. who have signed, but not ratified the Rome Statute, may decide to never ratify and even revoke their signature. Such a mass withdrawal from the Court hurts, primarily, victims in these African states, as it denies them justice.

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IS THIS THE END OF THE COURT? 

It is not. International criminal justice has always had its ups and downs, but this will not be the end of the ICC as we know it. According to Article 127 of the Rome Statute, parties are free to leave as they want. Of course, the withdrawal of few states may send a wrong message to international community about the ICC, but, in the end, the ICC is there for the victims, not the ones in power who decide to enter or leave.

WILL THERE BE MASS WITHDRAWAL?

Probably not. This move by Gambia and the two others may have opened a gateway for other countries, but it does not necessarily mean that many African countries will leave. For instance, Gabon last Month referred a case to the ICC after deadly unrest occurred in the nation over disputed election results.[2]

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IS AFRICA UNFAIRLY SINGLED OUT?

Of the current 10 full investigations, nine are underway in 8 African nations. The reasons for these investigations are easy to accept – The victims are in Africa.  The alleged crimes occurred in Africa. Theses situation have been referred to the ICC by the countries themselves or these situations have been referred by the United Nations Security Council under a Chapter VII resolution. [3] The spin that is put on these cases – that the ICC is targeting Africa – is false. Other situations in other parts of the world are also under investigation in the preliminary phase, including the Middle East, South America, and Europe.[4]

Time will tell. The arc of the moral universe is, after all, long, but it bends towards justice in the end.

Paul Obang Gora is an LL.M. student in the Law of the United States (LOTUS) program at UB Law. He has an LL.B. from the Ethiopian Civil Service College, Addis Ababa (2000) and a certificate for six-months’ training for judges and prosecutors. He served as an assistant prosecutor in Ethiopia from 2001-2003, but fled to Kenya because of political persecution. He was a community organizer in the refugee camps in Kenya and then served in the new South Sudan Ministry of Justice as legal counsel from 2008-12, prior to emigrating to the U.S. Paul is on the Elective Concentration Track, specializing in International Law, and working as an intern with the International Rescue Committee. 

 

[1] http://www.iccnow.org/?mod=icchistory

 

[2] https://www.icc-cpi.int/Pages/item.aspx?name=160929-otp-stat-gabon

 

[3] https://www.icc-cpi.int/pages/situations.aspx

 

[4] https://www.icc-cpi.int/pages/preliminary-examinations.aspx

 

 

 

 

 

 


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Thinking Out Loud: Injustice to Imdad Ali, Paranoid Schizophrenic

Margie Beltran

“[W]hen a mad man is executed, [it would] be a miserable spectacle, both against law, and of extreme humanity and cruelty, and can be of no example to others.”

Sir Edward Coke[i]

Pre-Emption: Courts have recognized the execution of a person with a mental illness causing the person unable to determine right from wrong and not understand the repercussions of their actions is an unfair punishment since the early 1600s.[ii]

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Imdad Ali’s wife, Safia Bono, holds a picture of her husband on death row in central Pakistan to spread awareness of unjust execution of the mentally ill. Photo Credit: Asghar Ali; Souce: AP (http://www.news.com.au/lifestyle/real-life/news-life/man-declared-insane-has-execution-halted-in-the-race-for-his-life/news-story/778891a7e5361c43df77145eb75dc5c4).

 

Imdad Ali, convicted in a 2001 murder case in Pakistan for killing a religious teacher, was slated to be punished via death penalty on September 20, 2016.[iii]  Nearly a decade and a half following the conviction, 50 year-old Ali, diagnosed by Pakistani prison officials with paranoid schizophrenia in 2012, faced execution despite the agreement Pakistan made to protect those with disabilities.[iv]  Pakistan has now been in direct violation with their previous UN agreement.

About two decades ago, Ali’s family and friends watched as his mental processing began to deteriorate.[v]  Ali became withdrawn, often found talking to himself, or to inanimate objects.[vi]  His wife, Safia Bano, tried desperately to have mental health professionals or hospitals treat Ali, but the price for mental health made access to care nearly impossible.[vii]  Before long, Ali’s illness took the wheel and he fatally shot a man.  Seeing the desperation and struggle of Ali and his family, many of his neighbors at the time of the shooting have offered to testify that Ali was a victim of his crippling schizophrenia.[viii]

 

Justice Project Pakistan Executive Director, Sarah Belal, fights for Imdad Ali’s justice, “Executing Imdad will exemplify Pakistan’s failure to abide by its international legal commitments [under the Convention on the Rights of Persons with Disabilities] that forbid the death penalty for persons suffering from mental disabilities.  Knowing what [Pakistan does] about his condition would make his hanging a most serious crime.”[ix]  In 2011, ten years after Ali’s conviction, Pakistan ratified the Convention on the Rights of Persons with Disabilities.[x]  Upon ratification, they agreed to uphold the rights of individuals with disabilities.[xi]

On the day of his scheduled execution, the Pakistani court granted a one-week reprieve to investigate the case and potentially change their mind.[xii]  The week following, on September 27, the Supreme Court of Pakistan dismissed any further halts on the execution.[xiii]  Now, Ali is slated to be executed as early as October 4, 2016.[xiv]

The justification?

Judges claimed, due to the vast numbers of prisoners diagnosed with mental illness, it is unreasonable to remove Ali’s sentence because this would set a precedent of letting anyone with a mental health disorder be free of their sentences.[xv]

So, the Supreme Court of Pakistan, knowing full well that both Pakistani law and International law, has ruled that because there are so many prisoners with mental health afflictions that it would lead to the release of all prisoners with mental illnesses on death row.  The court made a slippery slope argument to justify their law-breaking sentencing.

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The Supreme Court of Pakistan.  Photo Credit: http://www.baaghi.tv/supreme-court-of-pakistan-press-release/

Ali’s illness is what caused the homicide, not Ali.  Yes, a man was murdered.  He will live only as a memory and that is devastating.  However, the court’s argument is only exacerbating the underlying stigmatism and prejudice against those suffering from mental health problems.

The theory behind criminal punishment is to rehabilitate those who have committed crimes by having them reflect on their wrongs and reshape them into productive members of society.  In Ali’s case, like many others suffering from hallucinations and delusions, he cannot physically reflect on what he has done because he did not have the capacity to decipher right from wrong.  Physically speaking, Ali committed a heinous crime, but a person is not themselves when suffering from paranoid schizophrenia.

The Court’s ruling is unlawful and unjust.  Aside from complete disregard of the Pakistani, he judges are stripping an entire minority population in Pakistan from their human rights.  Ali should be provided mental health care not put to death, as should his fellow prisoners on death row suffering from mental illness.  These prisoners are already prisoners of their own minds.

“Imagine if you suddenly learned that the people, the places, the moments most important to you were not gone, not dead, but worse, had never been.  What kind of hell would that be?”

 – A Beautiful Mind, 2001 (film)

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.

[i] A Digest of the Criminal Law of England, as altered by the Recent Statutes for the Consolidation and Improvement of it: Volume II by Edward E. Deacon (1831). (Sir Edward Coke was an English barrister and later, a judge in the early 1600s).

[ii] Id.

[iii] https://www.thestar.com/news/world/2016/09/18/pakistan-faces-call-to-spare-mentally-ill-man-on-death-row.html

[iv] http://www.voanews.com/a/pakistan-set-to-execute-mentally-unfit-man/3514427.html

[v] http://www.ibtimes.co.uk/death-row-pakistan-schizophrenic-prisoner-waits-hangmans-noose-1582998

[vi] Id.

[vii] Id.

[viii] Id.

[ix] http://www.independent.co.uk/news/world/asia/pakistan-execute-mentally-ill-man-islamabad-imdad-ali-justice-project-pakistan-a7313496.html

[x] http://www.un.org/disabilities/documents/gadocs/a_67_281.doc

[xi] http://www.un.org/disabilities/documents/gadocs/a_67_281.doc

[xii] http://tribune.com.pk/story/1189913/appeal-dismissed-top-court-upholds-death-penalty-mentally-ill-man/

[xiii] http://www.cbsnews.com/news/pakistan-court-upholds-death-penalty-for-mentally-ill-man-imdad-ali/

[xiv] Id.

[xv] http://www.ibtimes.co.uk/pakistans-highest-court-dismisses-final-appeal-case-mentally-ill-death-row-prisoner-1583608


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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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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