The Disappearance of Jamal Khashoggi and International Law

By Summer Moukalled

written on November 11, 2018

In October of 2018, Saudi Journalist Jamal Khashoggi arrived at the Saudi consulate in Istanbul, Turkey and never left.[1] Soon after, his fiancée went public about his disappearance.[2] The Saudi Arabian government said that Khashoggi had left the consulate after arriving and that they had “nothing to hide.”[3] The Saudi government continued to deny the allegations for nearly three weeks, describing allegations that Khashoggi was killed as “baseless.”[4]

 

Jamal Khashoggi was a prominent Saudi journalist, covering major stories like the Soviet invasion of Afghanistan and the rise of Obama Bin Laden.[5] For years he was close to the Saudi royal family and served as an advisor to the government, but he soon lost favor and went into exile in the U.S.[6] He began writing for the Washington Post, where he criticized the policies of the Saudi Crown Prince, Mohammed bin Salman.[7] Three days before his disappearance, he told BBC’s Newshour program that the people being arrested in a crackdown on dissent overseen by Prince Salman “are not even being dissidents, they just have an independent mind.”[8]

 

In the 20th of October, 2018, it was reported that the journalist had actually died in the consulate after a fight.[9] State television finally reported that Khashoggi was murdered “in a ‘rogue operation’ and vowed to punish ‘those responsible”.[10] Soon it was reported that Khashoggi died after resisting attempts to return him to Saudi Arabia, and his body was given to a local ‘co-operator’ to be disposed of.[11]

 

Turkish President Recep Tayyip Erdogan says that there was evidence that the killing was planned in advance, and 15 Saudi nationals arrived in Istanbul before the murder, removed security cameras from the consulate building, and reported that he was immediately strangled and his body dismembered.[12]

 

It has been reported that Turkey has been cautious over pressuring Saudi Arabia to investigate the issue since it has seen that the U.S. will not punish the Saudis over this.[13] Secretary of State Mike Pompeo says that it would take some more weeks “before the US has enough evidence to impose sanctions in response to the killing.”[14] Despite international pressure, including Germany announcing that it will stop arms sales to Saudi Arabia, many have noted that the murder will not damage Saudi Arabia’s trade and defense ties in the long run.[15]

Saudi Arabia has been known to have one of the most censored media environments in the world.[16] In 2017, several human rights defenders were jailed for their social media posts.[17] Access to the internet is limited, with websites judged to contain “harmful,” “illegal,” “anti-Islamic,” or “offensive” material are routinely blocked.[18] Websites and social media pages belonging to political organizations and human rights are often blocked.[19] Criticism of the Saudi royal family is often not tolerated as well, as websites like Al-Araby Al-Jadeed­ and The New Arab have been blocked.[20]

 

While Saudi Arabia’s low tolerance for dissenters and limits on free expression is not anything new, Saudi has violated two rules of international law with the murder of Jamal Khashoggi, “the ban on extraterritorial enforcement of state’s laws or policies, and the requirements for lawful uses of diplomatic missions.”[21] The first rule prohibits states from sending agents to the territory of another to execute its own laws or policies.[22] While states have jurisdiction to prescribe laws governing certain conduct beyond their borders, enforcement of a state’s laws on another states territory without the authority of the other state is unlawful.[23] The Saudi government was clearly in violation of this rule when they killed Khashoggi, a dissident, on Turkish soil.[24] The second rule, that “diplomatic and consular missions must be used for specific official purposes, in exchange for which states hosting embassies and consulates but grant the buildings and staff diplomatic or consular immunity.” [25] Under the 1962 Vienna Convention on Consular Relations, a consulates function is “protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law.”[26] Further, the Vienna Convention requires that consular officials must “respect the laws and regulations of the receiving State.”[27] Murdering your citizens in a receiving state violates both of these rules.[28]

 

Khashoggi’s murder has created international attention because it involves a number of human rights violations in addition to an attack on free expression and journalism.[29] Khashoggi’s murder should spur a response by countries like the United States. While the U.S. has yet to impose sanctions on Saudi Arabia, actions need to be taken in order to ensure that further attacks on human rights and attacks on free expression do not continue.


[1] Richard Hall, Jamal Khashoggi: What we know and what we don’t know about the journalist’s death, Independent (Oct. 24, 2018), https://www.independent.co.uk/news/world/middle-east/jamal-khashoggi-journalist-death-facts-saudi-arabia-consulate-istanbul-erdogan-turkey-a8599756.html.

[2] Id.

[3] Id.

[4] John Haitiwanger, How the Saudi government’s story on slain journalist Jamal Khashoggi has shifted over time,

[5] Jamal Khashoggi: All you need to know about Saudi journalist’s death, BBC News, https://www.bbc.com/news/world-europe-45812399

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Mersiha Gadzo & Yarno Ritzen, One month after the Khashoggi killing, probe makes little progress, Aljazeera (02 Nov. 2018 11:39 GMT), https://www.aljazeera.com/news/2018/11/month-khashoggi-killing-probe-progress-181102081631040.html.

[14] Id.

[15] Id.

[16] Freedom on the Net 2017, Freedom House https://freedomhouse.org/report/freedom-net/2017/saudi-arabia (last visited Nov. 4, 2018).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Steven Ratner, The Khashoggi Murder: How Mohammed Bin Salman Underestimated International Law, LAWFARE (Oct. 22, 2018, 2:02 PM), https://www.lawfareblog.com/khashoggi-murder-how-mohammed-bin-salman-underestimated-international-law

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Vienna Convention on Consular Relations, art. 5 (a), Apr. 24, 1963, 596 U.N.T.S. 261 (entered into force Mar. 19, 1967) [hereinafter Vienna Convention].

[27] Id. at art. 55 (1).

[28] Steven Ratner, The Khashoggi Murder: How Mohammed Bin Salman Underestimated International Law, LAWFARE (Oct. 22, 2018, 2:02 PM), https://www.lawfareblog.com/khashoggi-murder-how-mohammed-bin-salman-underestimated-international-law

[29] Id.

Cat-astrophe or Conservation? New Zealand and Australia Propose Eradication of Cats to Conserve Endangered Bird Species.

By: Caitlin McBride

A country teeming with lush, vibrant vegetation hosts some of the rarest sights in the world—a small blue bird with a bright yellow forehead darts among branches;[1] a small parrot with emerald wings collects berries from a low-hanging bush;[2] and a small flightless bird bops around the undergrowth.[3] New Zealand is home to a wide variety of beautiful and rare birds, and one of the highest proportions of endangered species in the world.[4] In fact, birds are so important to the country that they appear on its currency.[5]

            Unfortunately, these natural beauties are disappearing at an alarming rate. According to a 2016 assessment published by the New Zealand Department of Conservation, fifty-nine bird species have become extinct since first human contact with New Zealand; up from an estimated twenty species in 2008.[6] Of the remaining 426 known living bird species, “71 (16.7%) were assessed as Threatened . . . and 107 (25.1%) were assessed as At Risk.”[7] Under the New Zealand Threat Classification System, thirty-seven different bird species are currently listed as Nationally Critical or Nationally Endangered.[8]

            While human impact contributes to the birds’ decline (from habitat loss,[9] inadvertent poisoning, accidental and deliberate killings,[10] etc.), another threat is stalking these rare birds: cats. Although fluffy felines may seem more like a cuddly house pet than a dangerous predator, they pose real problems to wildlife. According to a 2013 study by the Smithsonian Conservation Biology Institute and the Fish and Wildlife Service, between 1.3 and 4 billion birds are killed by cats each year in the United States alone.[11]

According to Gareth Morgan, a New Zealand economist, cats are not only a pest to endangered wildlife, but one that must be eradicated.[12] Morgan launched a website in January 2013, outlining a plan to entirely eliminate feral cats and other in New Zealand.[13] Morgan considers cats “natural born killers” and argues that they are bringing many of the endangered bird species to the point of extinction.[14] Morgan noted that he does not call for the killing of domestic cats, just “wandering” cats—but he does believe that pet cats should not be replaced after they die, and should be kept indoors and neutered while alive.[15]

Despite the influx of hate mail received by Morgan (much of which reportedly comes from American cat-lovers),[16] the notion seems to be gaining traction in Australia and New Zealand. In 2016, the Australian government announced its plan to combat feral cats and other pests to protect the country’s endangered species.[17] Australian Environment Minister Greg Hunt planned to cull (bait and shoot or poison) 2 million feral cats by 2020.[18]

            Similarly, some municipalities of New Zealand are following suit. In August 2018, Omaui, a small coastal town in New Zeland, proposed to eliminate cats entirely from the thirty-five-resident town.[19] The ban would prohibit anyone from adopting cats and bringing any new cats into the village, and existing cats would be phased out—allowed to live the rest of their natural lives, but not allowed to be replaced.[20]

While the law may seem extreme to cat-lovers, it actually is fairly in line with existing New Zealand policies. In 2016, for example, New Zealand enacted an aggressive plan to eradicate all invasive mammal species—such as rats, stoats, and possums—by 2020.[21] Prime Minister John Key announced that the government would set aside $2.3 billion to fund the project, although a previous study suggested that the effort could take $20 billion.[22]

New Zealand also has limitations on the importation of certain types of pets to limit the spread of bird and poultry diseases; for example, companion birds must pass an important health screening (HIS) to enter the country.[23] New Zealand also bans the importation of “ferrets, guinea pigs (except from Australia), mice and rats (except laboratory animals), and snakes and other reptiles (except some reptiles for zoos).”[24]

            A ban on domestic animals is also not extreme in a global context; international treaties, countries, and municipalities all over the world implement restrictions on animals. For example, many cities in the United Kingdom[25] and the United States[26] have bans on specific “dangerous dog” breeds. On an international scale, the trade of endangered animals such as pangolins have been banned to preserve threatened and endangered species.[27]

            Ultimately, it is unclear whether a ban on domestic cats or the extermination of feral ones will have a significant impact on threatened bird species. However, if citizens of New Zealand wish to conserve their threatened birds, they may have to do so at the expense of their feline friends.

 

 

 

 


[1] Chatham Island Tūī, N.Z. Dep’t. of Conservation, https://www.doc.govt.nz/nature/native-animals/birds/birds-a-z/chatham-island-tui/. (last visited Nov. 01, 2018). The Tūī is listed as Nationally Endangered. Id.

[2] Kea, N.Z. Dep’t. of Conservation, https://www.doc.govt.nz/nature/native-animals/birds/birds-a-z/kea/. (last visited Nov. 01, 2018). The Kea is listed as Nationally Endangered and cats are listed as a major predator. Id.

[3] Rowi, N.Z. Dep’t. of Conservation,  https://www.doc.govt.nz/nature/native-animals/birds/birds-a-z/kiwi/rowi/. (last visited Nov. 01, 2018). The Rowi is listed as Nationally Vulnerable. Id.

[4] See Taylor Telford, Cat-aclysm: New Zealand Village Considers Banning Felines to Save Endangered Birds, The Washington Post (Aug. 30, 2018), https://www.washingtonpost.com/science/2018/08/30/cat-aclysm-new-zealand-village-considers-banning-felines-save-endangered-birds/?utm_term=.9e55565d9955. (last visited Nov. 01, 2018).

[5] See Banknotes in Circulation, Reserve Bank of New Zealand, https://www.rbnz.govt.nz/notes-and-coins/notes/banknotes-in-circulation. (last visited Nov. 01, 2018).

[6] Hugh A. Robertson et al., Conservation Status of New Zealand Brids, 2016, N.Z. Dep’t of Conservation, May 2017, at 4. Available at https://www.doc.govt.nz/Documents/science-and-technical/nztcs19entire.pdf. The researchers believe that forty species were actually extinct before 1800, but could not confirm this beyond a reasonable doubt until after 2008.

[7] Id.

[8] New Zealand’s Threatened Birds, N.Z. Dep’t of Conservation, https://www.doc.govt.nz/nature/conservation-status/threatened-birds/. (last visited Nov. 03, 2018).

[9] See, e.g., Lou Sanson, From the Director-General, in New Zealand’s Threatened Species Strategy, N.Z. Dep’t of Conservation, May 2017, at iii. Available at https://www.doc.govt.nz/contentassets/97142dceee6b4f0e95a625ab4fa58dfc/threatened-species-strategy-draft.pdf.

[10] See Kea, supra note 2.

[11] Scott R. Loss, Tom Will, & Peter P. Marra, The Impact of Free-Ranging Domestic Cats on Wildlife of the United States, Nature Communications, Jan. 29, 2013. Available at  https://www.nature.com/articles/ncomms2380.

[12] See Karla Adam, Cat War Breaks Out in New Zealand, The Washington Post, May 14, 2013, https://www.washingtonpost.com/world/asia_pacific/cat-wars-break-out-in-new-zealand/2013/05/13/3b044fee-b971-11e2-b94c-b684dda07add_story.html?utm_term=.c837830568dc. (last visited Nov. 03, 2018).

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See Ishaan Tharoor, Austrailia Actually Declares ‘War’ on cats, plans to kill 2 million by 2020, The Washington Post, July 16, 2015, https://www.washingtonpost.com/news/worldviews/wp/2015/07/16/australia-actually-declares-war-on-cats-plans-to-kill-2-million-by-2020/?utm_term=.1e3bfd123313. (last visited Nov. 03, 2018).

[18] See id.

[19] See Charlotte Graham-Mclay, New Zealand Town May Ban Cats to Protect Other Species, The N.Y. Times, Aug. 30, 2018, https://www.nytimes.com/2018/08/30/world/australia/new-zealand-cat-ban-birds.html. (last visited Nov. 03, 2018).

[20] See id.

[21] See Karin Brulliard, New Zealand Vows to Kill Every Weasel, Rat and Feral Cat on its Soil, The Washington Post, July 25, 2016, https://www.washingtonpost.com/news/animalia/wp/2016/07/25/new-zealand-plans-to-kill-every-weasel-rat-and-feral-cat-on-its-soil/?utm_term=.5f19bd368099. (last visited Nov. 03, 2018).

[22] See id.

[23] See Pets, N.Z. Ministry for Primary Indus., https://www.mpi.govt.nz/importing/live-animals/pets/. (last visited Nov. 03, 2018).

[24] Id.

[25] See, e.g., Controlling Your Dog in Public, Gov.UK, https://www.gov.uk/control-dog-public/banned-dogs. (last visited Nov. 03, 2018).

[26] See, e.g., R. Scott Nolen, The Dangerous Dog Debate, J. of Am. Veterinary Med., Nov. 01, 2017. Available at https://www.avma.org/news/javmanews/pages/171115a.aspx.

[27] See Damian Carrington, Pangolins Thrown a Lifeline at Global Wildlife Summit with Total Trade Ban, The Guardian, Sept. 28, 2016, https://www.theguardian.com/environment/2016/sep/28/pangolins-thrown-a-lifeline-at-global-wildlife-summit-with-total-trade-ban. (last visited Nov. 03, 2018).

Employers v. Employees: Has New Reforms to French Labor Laws Finally Declared Employers Victorious?

By Ashley Martin

In France, the balance of power has shifted. No longer does the French Labor Code favor employees over employers.[1] Prior to the reform, the dismissal of an employee could lead to large payouts[2], something not likely to happen in the United States. The new Labor Code made changes that favor employers[3], such as permitting employers to terminate employees without risk of a large payout.[4] The new reform claims to provide protections to employees, such as increasing employee severance pay by 25%.[5] However, the response to the new reform comes with mass layoffs by French employers.[6] After years of a strong labor code that favored employee rights[7], has this new reform gone too far in favor of employer rights?

            Two specific improvements to the French Labor Code appear to swing the pendulum in the employer’s favor: (1) “an imperative scale of damages” and (2) “reform the rules governing dismissals.”[8] Prior to the reform, employers with eleven employees or more, who terminated an employee without legal cause were subject to heavy damages.[9] In these cases, employers could be forced to pay not less than six months of salary to an employee with at least two years of service.[10] There was no cap on the amount of damages.[11] For employers with less than eleven employees or disputes involving employees with less than two-years of service, the uncertainty was worse.[12] No minimum or maximum existed, and the amount of damages were left within the discretion of the judge.[13]

The reform creates both a minimum and maximum amount of damages and is billed as a benefit for employees.[14] The minimum amount of damages depends on a number of factors such as, the number of employees employed by the company and how long the employee worked for the employer.[15] In most cases, the minimum salary owed will range between zero and three months.[16] The maximum amount of damages will also depend on how long the employee worked for the employer, but cannot exceed twenty-months of gross pay.[17]

            The floor and ceiling set on damages in termination without legal cause cases creates great benefits for employers.[18] Employers can now better predict how expensive a dismissal without legal cause will be and litigation costs have decreased.[19] Employees do receive one benefit from the reform: a change in eligibility requirements.[20] Pre-reform, to bring a cause of action for termination without legal cause, employees must have been employed for a minimum of twelve months.[21] Post-reform, employees need only be employed for eight months.[22] This benefit is really a double-edged sword. Even if successful, employees with a shorter term of employment will be limited in the amount of damages they can recover.[23]

            With regards to dismissal reforms, changes have been made across the board, but one reform provides significant benefits to companies with employees in multiple countries, and the effects of this change are being felt already. Layoffs no longer require the employer demonstrate financial difficulty at an international level.[24] The assessment of financial hardship is based on the employer’s operations in France only.[25] Prior to the new reforms, employers had to demonstrate financial difficulties at an international level before a layoff was justified.[26] However, an employer who wants a reduction in force now has two options that do not require any showing of financial hardship.[27] The first option is a mobility leave.[28] A mobility leave is a period where employees are paid to search for a new job, and if a new job is found and accepted by the employee, then the prior employment contract is “mutually terminated and [therefore,] could not be qualified as a dismissal or a resignation.”[29] Mobility leave was available before the reform, but the reform just allowed more employers to take advantage of it.[30] For an employer to offer mobility leave, the employer must employ 300 or more employees and a collective bargaining agreement must be in place.[31] The new reform eliminated the requirement that a mobility be offered in the face of an impending layoff and eliminated tax and social obligations on indemnities owed to employees for one year.[32] The second option is a collective mutual-termination agreement (CMTA).[33] Under the reform, employers may now collectively bargain to terminate employment with employees.[34] Employees may consent if they wish, and the CMTA must be approved by labor officials.[35] Under this model, no forced termination of employment is permissible.[36]

            These reforms to large-scale dismissals primarily benefit the employer, who now know it can terminate large numbers of employees and eliminate the risk of litigation for termination without legal cause. Mobility leave and CMTAs do provide benefits to the employee, the employer primarily reaps the benefits. Even though employees are paid while they search for new employment or have consented to termination of employment, certainty of employment is eliminated.[37] Because employers are no longer required to show legal justification to offer mobility leave or engage in CMTA negotiations, an employer can reduce its force at any point.[38] French employers have already begun to take advantage of these new changes.[39] In early 2018, large-scale reductions in force occurred at France’s large auto manufacturer, supermarket chain, and clothing retailer.[40]

            The new reforms have indeed swung the pendulum in favor of the employer. Employees terminated without legal cause are limited to a maximum of twenty-months of gross pay,[41] and job certainty has been eliminated in light of a new reduction in force techniques.[42] These reforms have been in effect for less than a year, but only time will tell how employer-favored these reforms truly are.


[1] Liz Alderman, French Companies Have Newfound Freedom . . . to Fire, N.Y. Times (Jan. 23, 2018), https://www.nytimes.com/2018/01/23/business/france-labor-jobs.html.

[2] Adam Nossiter, Macron Takes On France’s Labor Code, 100 Years in the Making, N.Y. Times (Aug. 4, 2017), https://www.nytimes.com/2017/08/04/world/europe/emmanuel-macron-france-economy-labor-law.html?_r=0&module=inline.

[3] Alderman, supra note 1.

[4] Labour Law Reform, Gouvernement.fr, https://www.gouvernement.fr/en/labour-law-reform (Last Visited Nov. 11, 2018).

[5] Id.

[6] Alderman, supra note 1. As of January 23, 2018, over 4,000 employees had been laid-off. Id.

[7] Id.

[8] Gouvernement.fr, supra note 4.

[9] Roselyn S. Sands, What’s new in French termination-of-employment law? A lot!, Practicing L. Institute 1, 4 (2018).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Gouvernement.fr, supra note 4. The floor and ceiling on damages only applies to termination without legal cause cases. Sands, supra note 9, at 4.

[15] Sands, supra note 9, at 4.

[16] Id.

[17] Id.

[18] Id. at 5.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] See id. at 4–5.

[24] Eleanor Beardsley, Why French Unions Aren’t Taking To The Streets Like They Used To, NPR (Feb. 1, 2018), https://www.npr.org/sections/parallels/2018/02/01/581534140/why-the-french-dont-take-to-the-streets-like-they-used-to.

[25] Sands, supra note 9, at 7.

[26] Id.

[27] Id. at 10.

[28] Id.

[29] Id.

[30] Id.

[31] Id. at 10–11.

[32] Id. at 11.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] See generally id.

[38] Id. This assumes the employer meets the requirements to open a mobility period and the CMTA is approved by labor officials. Id.

[39] Alderman, supra note 1.

[40] Id.

[41] Sands, supra note 9, at 4.

[42] See id. at 10–11.

The Stagnation of Rape Law in the United Kingdom: the Amount of Cases have Increased while Conviction Rates have Plummeted

By: Kelsey Elling 

I.                   Issue

Whether the Crown Court and the Crown Prosecution Services can implement changes to help increase the conviction rates of rape cases in the United Kingdom?

II.                Background Information

Rape law has come a long way, internationally, in terms of laws that protect victims of rape, but it is no secret that “the crime of rape was founded upon myths and stereotypes.”[1] For example, rape law in the United Kingdom was founded on stereotypes and fueled by the fear that many allegations of rape are false.[2] Rape law in the United Kingdom has undergone much reform[3], namely the Sexual Offenses Act of 2003[4], resulting in a major shift in the framework of modern rape law in the 21st century.[5] However, even with these reforms, the number of rape cases have steadily increased, while the convictions rates have slightly decreased.[6] The “gravity of the seriousness of the offense of rape is one that is not reflected in conviction rates.”[7] It is apparent that there is still a major problem with prosecuting rapes at trial in the United Kingdom.[8] The current conviction rate of these cases is about 6-7%, creating an immediate change in policy, law, and the way these cases are prosecuted.[9] The low conviction rates can be blamed on procedural and institutional issues, but are also highly connected to the biases and stigmas that are attached to a claim of rape.[10] The question becomes how can the Crown Court and Prosecution Services in the United Kingdom assist in increasing the conviction rates of rape cases when the low conviction rates are partly because of the stigma of the crime of rape.

III.             Analysis

In the United Kingdom, there are many obstacles that stand in the way of a potential case of rape when it moves through the criminal justice system. The various obstacles include police involvement, the Crown Prosecution Services “CPS,” the Crown Court, and even biases and preconceived attitudes of potential jurors.[11] Furthermore, the fact that there are usually no eye-witnesses and the “evidential difficulties and the [high] burden of proof” in cases of rape, make it difficult for prosecutors to obtain a guilty verdict and it also negatively impacts the jurors’ views of these cases.[12] Initially, an individual will report an alleged rape to the police and then the police will perform an investigation.[13] If the police form a reasonable suspicion that the claim of rape is legitimate then they report this claim to the CPS.[14] The CPS then performs its own investigation, without making direct contact with a victim or the witness, and makes the decision on whether to charge the Defendant or not.[15] If the CPS decides to charge the Defendant then there are issues that take place during the trial, stemming from the lack of physical evidence and eye-witnesses.[16]

 

A.     Obstacle One: The Crown Prosecution Service

Some problems with getting a potential claim of rape into the Crown Court stems from the CPS. The CPS has guidelines on how to prosecute cases of rape specifically and what elements need to be made.[17] The CPS has also established a network of Specialist Prosecutors to improve the conviction rate of rapes.[18] However, even with a special network of prosecutors the CPS still falls short on implementing the guidelines, seen through the low rate of rape cases brought in front of the Crown Court and the conviction rates.[19] There are some changes that can be made within the CPS, regarding the guidelines in place, to help increase the conviction rate of rape cases.

Having a specialized team in place to prosecute these cases is a great first step, something that lacks in the United States, but there still needs to be a policy implemented that ensures greater consistency in decision-making within the CPS.[20] One possible solution is to implement a policy where a second opinion is needed if a prosecutor within the CPS decides to drop a claim of rape and not bring it to the Crown Court.[21] This would set up a check on the prosecutor making the decision, ensuring that no claim of rape is pushed under the rug.[22] On the other side, it could be argued that this would create unnecessary work that one employee could complete and contribute to the system being more backed up. However, it is important that there is caution taken when deciding not to prosecute a case of rape.[23] Furthermore, this could help show the public that not only are the prosecutors taking these claims seriously, but prosecutors are exhibiting due-diligence before charging an individual.

The CPS also need to take a more proactive approach to building a case, rather than initially focusing on the weakness in the case.[24] While prosecutors are building a case to bring in front of the Crown Court they do not meet with the victims or any witnesses, they simply rely on the police report and any outside investigation they conduct.[25] There needs to be a shift from focusing on discrediting claims and complaints to gathering evidence and building a strong case.[26] This can be done if prosecutors are allowed to meet with the victim and the witnesses prior to bringing the case to court. If the CPS is worried about keeping emotions out of the prosecutor bringing the potential claim, then another prosecutor from the specialized unit can meet with the witnesses and prepare a report. Moreover, this can be achieved by spelling out the goals of the special prosecution unit and making the policies that the prosecutors must follow.

B.     Obstacle Two: The Crown Court and Biases of the Jury

Another issue stems from biases that undoubtedly attach to members of the jury during a rape case. There are not many ways to solve this issue in a legal sense, but the court can assist in key ways. Jurors can be influenced by how the victim dresses in court, the behavior of the victim, if the victim delated in reporting the rape, the lack of physical evidence, the lack of eye-witnesses, and the demeanor of the victim.[27] It is hard to correct these biases during a trial. However, one solution could be to allow expert witnesses at the beginning of a rape trial to try and get in front of the myths and stereotypes of rape.[28] Expert testimony could help aid the prosecutors in their case, but also try and erase any doubts in the jury.[29] Judges have argued that the use of expert testimony would be expensive and many times unnecessary.[30] Furthermore, opponents of expert testimony argue that this would give prosecutors an unfair advantage.[31] However, it could be argued that expert testimony would not give the prosecutors and victims an unfair advantage, but rather level the playing field and ensure that jurors would not be swayed by unjustified biases of the crime.

IV.             Conclusion

The fact remains that there still needs to be reform in the way that prosecutors decide to charge individuals with rape and how the Crown Court assists during the trial. Ensuring that there are checks on a prosecutor’s decision to drop a case and allowing prosecutors to introduce expert evidence are two good first steps in trying to cure the low conviction rates of rape cases in the United Kingdom.

 


[1] Catie Carson, Note, A Comparison of Sexual Assault in the U.S., Canada, and England, 3 Undergrad. Rev. 57, 61 (2007).

[2] Philip Rumney, False Allegations of Rape, 65 The Cambridge L. J. 125, 128 (2006).

[3] Nicole Westmarland, Rape Law Reform In England and Wales, School for Policy Studies Working Paper Series- Number 7 1, 1 (2004).

[4] See generally Sexual Offences Act 2003, legislation.gov.uk.

[5] Westmarland, supra note 3, at 1.

[6] Jean Seaton, Rape: A History from 1860 to the Present, The Guardian, Oct. 20, 2007, https://www.theguardian.com/books/2007/oct/20/featuresreviews.guardianreview8.

[7] A Historical Summary and Analysis of Rape Law, Law Teacher, https://www.lawteacher.net/free-law-essays/criminal-law/history-of-rape-laws.php (last visited Feb. 13, 2018) (hereinafter Law Teacher).

[8] Why rape cases should not be subject to reasonable doubt, Aeon, Dec. 16, 2016, https://aeon.co/ideas/why-rape-cases-should-not-be-subject-to-reasonable-doubt (hereinafter Reasonable Doubt).

[9] See Kate Ewing, Attitudes and Responses to Rape in Light of the Low Conviction Rate, Plymouth L. Rev. 48, 48 (2009).

[10] Law Teacher, supra note 7.

[11] Ewing, supra note 9, at 48.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] See CPS Policy for Prosecuting Cases of Rape, CPS, https://www.cps.gov.uk/publication/cps-policy-prosecuting-cases-rape (last visited Nov. 3, 2018).

[18] Id. at para. 6.

[19] See Ewing, supra note 9, at 58.

[20] Id.; See also CPS Policy for Prosecuting Cases of Rape, supra note 17.

[21] See Ewing, supra note 9, at 58.  

[22] Id.

[23] See id.

[24] Id.

[25] Id. at 48.

[26] Id. at 58.

[27] Id. at 62.

[28] Id. at 64.

[29] Id.

[30] Council of HM Circuit Judges, Convicting Rapist and Protecting Victim: A Consultation, Response of the Council of HM Circuit Judges (2006).

[31] Ewing, supra note 9, at 64.

Regulating a Largely Unregulated Market: What Amsterdam has Done to Control Airbnb Rentals

By Emily Bauer

Background

It has been ten years since Airbnb emerged in the hospitality industry providing budget-conscious travelers with an alternative to pricey hotels.[1] Airbnb describes itself as “a trusted community marketplace for people to list, discover, and book unique accommodations around the world.”[2] Though initially utilized as budget-friendly travel, Airbnb has taken over the hospitality industry at every price point; “[w]hether an apartment for a night, castle for a week, or a villa for a month, Airbnb connects people to unique travel experiences . . . in more than 33,000 cities and 192 countries.[3]  The Airbnb platform has also proven to be financially prosperous for those individuals renting their extra rooms, apartments, and even full homes via the Airbnb marketplace.[4] Airbnb has consumed the hospitality and short-term rental market and has even transcended into the residential rental market.[5]  Due to the breadth of its business, Airbnb has landed in unchartered waters in terms of regulation.[6]  Further, because cities and municipalities govern zoning regulations, there has been local outcry and a wide variety of attempts to control problems associated with the emergence of the Airbnb empire.[7] Since the emergence of Airbnb, cities, including Amsterdam, have struggled to respond to Airbnb’s incompatibility with zoning, landlord-tenant relations, and other traditional regulations.[8]

In recent years, the Netherlands has seen a great increase in Airbnb use.[9]  The country went from 75,000 Airbnb guests in 2012 to 1.6 million Airbnb guests in 2017.[10]  Since Amsterdam is home to “almost half of the total number of rental opportunities listed for all of the Netherlands,” it has especially felt the effects of increased tourism.[11] More specifically, the city has taken the brunt of noise nuisance complaints, illegal rentals, housing shortages, and reports of changing neighborhoods.[12] Amsterdam responded by becoming the first city in the world to, with the cooperation of Airbnb, enact “private vacation rental” laws designed to combat issues surrounding Airbnb services.[13] As outlined below, Amsterdam’s private vacation rental rules addressed many issues relating to Airbnb rentals; however, the enforcement mechanisms still need refinement. Nevertheless, Amsterdam may have just started an international trend toward regulation in a largely unregulated market.

Problems and Responses

I.                   Nuisance Complaints and Zoning

Zoning seeks to minimize conflict among potentially incompatible uses of property.[14] Municipalities zone areas of a town “strictly for residential use not only [to] create space for citizens to live but . . . also [to] limit heavy traffic and noise pollution in that part of town.”[15] With an increasing number of individuals renting out their homes in districts zoned for single-family use, neighborhoods are being commercialized to accommodate tourists.[16] Without a restriction on how long residences can be rented, the fear is that these places will be permanently rented and  “housing for residents [will be] eaten away to cater tourists.”[17] These concerns were realized in Amsterdam prior to new private vacation rental regulations.[18] Owners in areas zoned strictly for residential use reported “never-ending noise”[19] and that the city became “overrun by disorderly, drunken, [and] noisy visitors.”[20]

In response to these grievances, Airbnb and Amsterdam struck a deal to implement new regulations.[21] The regulations provide that hosts may only rent their homes “up to two months per year, to up to four people at a time.”[22] This provision will ensure that homes are consistent with zoning regulations and are not being exploited as loud, commercial businesses in traditionally quiet neighborhoods.[23] Airbnb will “automatically delist any [full-apartment and full-home rentals] that have already hosted 60 overnight stays until the next calendar year.”[24] Airbnb’s enforcement of this provision has proven to be somewhat successful, but not perfect.[25] In 2016, when the regulation did not apply, 18 percent of Amsterdam homes were rented out for more than 60 days.[26] In 2017, after the regulation was implemented, “about 5 percent of the Amsterdam homes on the site had been rented out for more than 60 days [in violation of the new rule].”[27] Even though the regulation has reduced the frequency of rentals, Amsterdam decided it needed to take further action.[28] Starting in 2019, the maximum period for rentals will be cut in half; homeowners will only be able to rent out their homes for a maximum of thirty days per year.[29] It will be interesting to see whether this new reduction will further reduce nuisance and zoning concerns.

Amsterdam’s new regulations further provide that in order to rent out a home, the individual “must be registered as living at that address.”[30] This prevents individuals from buying neighborhood homes for commercial purposes and improperly transforming neighborhoods from residential to commercial, in conflict with zoning districts.[31] Moreover, the rules provide that “if renters act in ways that generate noise–or nuisance complaints from neighbors, authorities may [prohibit] the owners from further rentals.”[32] This provision makes homeowners accountable for their unruly renters, thus incentivizing hosts to screen potential renters.[33]

II.                Exploiting Residence as a Business   

Amsterdam took further action to prevent exploitation of residences by investors, which has become all too common worldwide.[34] First, the requirement that individuals “must be registered as living at that address” prevents investors from purchasing and renting out several properties.[35] Pursuant to the Amsterdam and Airbnb agreement, Airbnb monitors illegal rentals by looking for renters “who present themselves as private individuals, but in fact, rent out properties that are uninhabited.”[36] Unfortunately, it is difficult to enforce this regulation because it often requires someone clicking on the advertiser’s fictitious name and discovering that the individual has multiple properties listed.[37] Amsterdam’s housing alderman, Laurence Ivens, stated recently that Airbnb is “not doing enough to combat illegal letting.”[38] Ivens is looking to renegotiate the agreement with Airbnb to tighten up the enforcement mechanisms.[39]

Additionally, it is illegal for rent-controlled property owned by housing corporations to be rented and renters must obtain permission from their landlords before renting.[40] Unfortunately, Amsterdam and Airbnb have struggled to enforce this regulation as well.[41]  A local broadcaster showed in a YouTube video that it is still easy for people living in rent-control properties to list their properties on Airbnb, even though it is illegal.[42] One of the only ways to enforce this regulation is to send out inspectors.[43] This is both costly and time-consuming because it must be repeated every day.[44] In an attempt to strengthen enforcement, Ivens plans to increase the number of inspectors to 80.[45] These regulations are just the beginning for Amsterdam; it will continue to improve its Airbnb regulations and enforcement.[46] As the city emphasized, “Amsterdam is a city to live and work in - it’s only a tourist destination in the second place.”[47]

Conclusion

With the dramatic increase in Airbnb use in the Netherlands, Amsterdam and Airbnb headed down unchartered waters and created regulations to combat nuisance, zoning, and landlord conflicts in Amsterdam. Although the enforcement of these regulations needs improvement, Amsterdam has started to address concerns arising from Airbnb rentals that all cities and municipalities utilizing Airbnb have been facing. Accordingly, Amsterdam may have started an international trend toward regulation in a largely unregulated market.


[1] Zaw Thiha Tun, Top Cities Where Airbnb is Legal or Illegal, Investopedia (Oct. 22, 2018), https://www.investopedia.com/articles/investing/083115/top-cities-where-airbnb-legal-or-illegal.asp. Airbnb was founded in August 2008. Id.

[2]Linkedin, https://www.linkedin.com/company/airbnb/ (last visited Nov.13, 2018).

[3] Id. See also Leigh Gallager, How Airbnb Found a Mission–and a Brand, Fortune (Dec. 22, 2016), http://fortune.com/airbnb-travel-mission-brand/.

[4] Nick Wallace, Where Do Airbnb Hosts Make the Most Money?, SmartAsset (Feb. 20, 2018), https://smartasset.com/mortgage/where-do-airbnb-hosts-make-the-most-money.

[5] Id. See generally Earn money as an Airbnb host, Airbnb (outlining how to host Airbnb and what can be rented), https://www.airbnb.com/host/homes.

[6] Tun, supra note 1; see also Daniel Guttentag, Regulating Innovation in the Collaborative Economy: An Examination of Airbnb’s Early Legal Issues 97, 99-101, https://www.dg-research.com/Papers/Guttentag%20(2017)%20Airbnb%27s%20early%20legal%20issues.pdf.

[7] Tun, supra note 1.

[8] Id.

[9] Id.

[10] Netherlands, airbnbcitizen (2018), https://www.airbnbcitizen.com/netherlands/. The number of Airbnb rentals will likely increase due to the fact that the Netherlands expects to receive 18 million tourists in 2018. Cecilia Rodriguez, Fed Up With Tourists, Amsterdam Gets Tough on Airbnb, Tourist Taxes And Too Much Partying, Forbes (May 17, 2018), https://www.forbes.com/sites/ceciliarodriguez/2018/05/17/amsterdam-overwhelmed-by-tourists-gets-tough-on-airbnb-tourists-taxes-too-much-partying/#6b3ac0742be5.

[11] Airbnb in Amsterdam, DutchAmsterdam (Aug. 4, 2018), http://www.dutchamsterdam.nl/3326-airbnb-amsterdam.

[12] Id.  

[13] Id. See also O’Sullivan, supra note 17.

[14] A Practical Guide to Understanding Zoning Laws, PropertyMetrics (2018), https://www.propertymetrics.com/blog/2017/01/06/zoning-laws/.

[15] Zoning Ordinance, Investopedia (2018), https://www.investopedia.com/terms/z/zoning-ordinance.asp.

[16] See generally Rodriguez, supra note 10.  

[17] Feargus O’Sullivan, Now London and Amsterdam Are Capping Airbnb Apartment Rentals, CityLab (Dec. 2, 2016), https://www.citylab.com/equity/2016/12/airbnb-london-amsterdam-vacation-apartment-rental-regulations/509396/.

[18] See Rodriguez, supra note 10; see also Airbnb in Amsterdam, supra note 11.

[19] Airbnb in Amsterdam, supra note 11.

[20] See Rodriguez, supra note 10.

[21] Airbnb in Amsterdam, supra note 11.

[22] Id. See also O’Sullivan, supra note 17.

[23] Id.

[24] Id.

[25] O’Sullivan, supra note 17. See also Airbnb in Amsterdam: What is Allowed and What is Not Allowed? ThomaPost (May 22, 2018), https://thomapost.amsterdam/en/2018/05/22/airbnb-in-amsterdam-what-is-allowed-and-what-is-not-allowed/.

[26] Id.

[27] Id.

[28] Id.

[29] Id. See also Amsterdam wants Airbnb to get tough on Illegal Rentals, DutchNews.nl (Sept. 18, 2018), https://www.dutchnews.nl/news/2018/09/amsterdam-wants-airbnb-to-get-tough-on-illegal-rentals/.

[30] Airbnb in Amsterdam, supra note 11.

[31] Id. See also Airbnb in Amsterdam: What is Allowed and What is Not Allowed?, supra note 24.  

[32] Airbnb in Amsterdam, supra note 11.

[33] Id.

[34] See Scott Shatford, The Best Places to Buy an Airbnb Investment Property in America, Airdna (Aug. 11, 2015), https://www.airdna.co/blog/most-profitable-airbnb-cities-in-america; see also The Best Cities to make an Airbnb Investment, Cash Flow Diary (2017), https://cashflowdiary.com/cashflow/best-cities-make-airbnb-investment/.

[35] Airbnb in Amsterdam, supra note 11.

[36] Id.

[37] Id.

[38] Amsterdam wants Airbnb to get tough on Illegal Rentals, supra note 29.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Rodriguez, supra note 10.

Uyghur Camps . . . What Really is Happening?

By John Dunnam

History/Relevant Background:

 

The Xinjiang Uyghur Autonomous Region, also known as Xinjiang Providence, is China’s largest region.[1] Although the area has experienced intermittent autonomy, the Chinese Communist Party regained control of the area in 1949.[2] The region is home to ten million Muslim Chinese—Uyghurs.[3] The Uyghurs are an ethnic minority group living in the Xinjiang region.[4]  Uyghurs practice Islam, speak a language related to Turkish, and culturally align closely with Central Asian nations.[5] While they have their own culture and language, they are being persecuted in China based on their religious beliefs.[6]

 

Once the Chinese Communist Party regained control of the Xinjiang region, Han Chinese were encouraged to move to the region and settle.[7] Conflict between the Chinese and the Uyghurs have been ongoing and violent.[8] In 1997, thirty alleged Uyghur separatists were executed, resulting in conflicting accounts as to why.[9] From the early 2000s to present day, there have been many conflicting reports from both the Chinese government and Uyghurs as to who has caused violent attacks.[10] The Chinese government has blamed the East Turkestan Islamic Movement for the terrorist attacks that have taken place in Xinjiang.[11] Additionally, blaming the Uyghurs for attempting to establish an independent state from China,[12] using the prevention of terrorism as logic for their increasing detention of Uyghurs.[13]

 

Current issue/Analysis:

 

In August 2016, Chen Quanguo, former party chief of Tibet, was placed as party chief in the Xinjiang region by the current president, Xi Jinping.[14] Chen is known for his work in Tibet where he increased policing to quiet the Buddhist protests in the region.[15] President Xi has not publicly endorsed the internment camps, but he has ordered policy shifts to assimilate ethnic minorities with “economic incentives and state-organized ethnic intermingling.”[16]  Within three weeks of being the party chief in Xinjiang, Chen authorized a “remobilization plan to ramp up security” for a multiyear offensive attack.[17] In March 2017, “deradicalization rules” were issued by the regional government, which were never enacted as law by the national parliament, but allowed for the expanding of the internment camp.[18] During 2017, the Xinjiang regional government, the 13th People’s Congress of Xinjiang Uyghur Autonomous Region, issued a special announcement for the regulation and removal of extremism.[19] These regulations and rules are an attempt to rid the Xinjiang region of Islamic faith and gives police the ability to stop and detain Uyghurs to prevent Islamic extremism.[20] According to a Maya Wang, a senior Chinese researcher for the Human Rights Watch, under the Current Chinese constitution the Xinjiang government did not have the authority to detain Uyghurs without due process and by doing so the education centers “remain arbitrary and abusive, and no tweaks in . . . regional rules can change that.”[21]

 

Currently, the Chinese government has maintained its defense that Uyghurs are not being arbitrarily detained, but that they are trying to remove religious extremism in the area.[22] In the Xinjiang region, authorities have “officially legalized so-called re-education camps for people accused of religious extremism, a little more than a month after denying such centers exist.”[23] Additionally, since the expansion of the internment camps and surveillance, Beijing has directed 8.4 billion dollars in funds for security, which is double the amount of last year.[24]

 

In August of 2018, “a UN Human rights panel cited ‘credible reports’ that more than one million people were being held in counter-extremism [centers] in Xinjiang.”[25] Although the Chinese government denied these internment camps originally, they did acknowledge that Uyghurs, who were religious extremists, were attending re-education and resettlement programs.[26] Religious extremist has a broad definition in China, including serious offenses and minor offenses, such as persuading people to quit drinking alcohol, grow a beard, or pray in a public place.[27] Currently, there are more than one million Uyghurs locked away and forced to be in internment camps.[28] While being locked up in these internment camps away from their families, Uyghurs are required to “listen to lectures, sing hymns praising the Chinese Communist Party and write 'self-criticism essays’” with the goal of removing devotion to the Islamic faith.[29] Not only are they forced to follow these orders throughout the day, but the Chinese government is using scare tactics to break up families and force relatives and friends to report on one another.[30] It has been reported that Chinese authorities are gathering information on individuals’ DNA through hair and blood testing.[31]

 

According to the chairman of the Xinjiang government Shorat Zakir, an ethnic Uyghur himself, the camps were a “‘humane’ and lawful shield against terrorism,” where Uyghurs can learn Mandarin, job training, and teachings on how to be a law-abiding citizen.[32]  Additionally, Zakir claims that the internment camps deal with people “suspected of wrongdoing that fell short of . . . criminal convictions.”[33] While China continues to promote a fantasized version of the internment camps to the outside world, many in the United States and the United Nations (UN) do not believe them.[34] Members of the Congressional-Executive Commission on China, U.S. Senator Marco Rubio, and U.S. Representative Chris Smith wrote a letter to the Commissioner, urging the United States to issue sanctions on China for human rights violations in Xinjiang.[35] The letter specifically addresses sanctions of Chen and other officials for “human rights abuses, under the Global Magnitsky Human Rights Accountability Act.”[36]

 

 This Act authorizes the President to “impose U.S. entry and property sanctions against any foreign person” who is responsible or authorizes the torture, killing, or other “gross violations of internationally recognized human rights.”[37]  According to reports, Uyghurs can be stopped by police at any time, children are being sent to orphanages, women being forced to marry Han Chinese, and some individuals are worked to death in the internment camps.[38] The persecution of Uyghurs because of their religious preferences and the atrocities taking place in the internment camps violates the United Nations recognized human rights; however, China’s denial has kept them from being sanctioned.[39] China has refused to allow the UN to conduct a “free investigation” in the region,[40] but why? Do they have something hide? These are the types of questions the world should continue to ask itself, why let the inhumane treatment of an ethnic group go without consequence?

 

Conclusion:

 

While China denies the fact that there is inhumane treatment of Uyghurs, the conflicting reports are enough to cause the world to take a closer look into the atrocities that are taking place.[41] Action must occur to prevent the further persecution of the Uyghurs in the Xinjiang Region.[42] As the days pass families are broken up, Uyghurs are persecuted, and the world revolves with these unjust actions continuing. Something must be done. 


[1] Xinjiang territory profile, BBC (Oct. 12, 2018), https://www.bbc.com/news/world-asia-pacific-16860974.

[2] Id.

[3] Gene Bunin, ‘We’re a people destroyed’: why Uighur Muslims across China are living in fear. The Guardian (Aug. 7, 2018), https://www.theguardian.com/news/2018/aug/07/why-uighur-muslims-across-china-are-living-in-fear.

[4] Id.

[5] Why is there tension between China and the Uighurs, Bbc (Sept. 12, 2018), https://www.bbc.com/news/world-asia-china-26414014.

[6] Gulnaz Uighur, I’m a Uyghur Muslim who fled China’s brutal crackdown – it’s time the world showed us some support, Independent (Sept. 12, 2018), https://www.independent.co.uk/voices/china-uyghur-muslim-rules-laws-treatment-chinese-human-rights-religion-a8534161.html.

[7] Ben Westcott & Yong Xiong, China legalizes Xinjiang ‘re-educaiton camps’ after denying they exist, Cnn (Oct. 11, 2018), https://edition.cnn.com/2018/10/10/asia/xinjiang-china-reeducation-camps-intl/index.html?no-st=1541346096.

[8] Xinjiang profile – full overview, Bbc (Nov. 17 2016), https://www.bbc.com/news/world-asia-pacific-16913494.

[9] Id.

[10] Id.

[11] Id.

[12] Westcott & Xiong supra note 7. 

[13] Bunin supra note 3; see also BBC supra note 5.

[14] Chris Buckley, The Leaders Who Unleashed China’s Mass Detention of Muslims, N.Y. Times (Oct. 13, 2018), https://www.nytimes.com/2018/10/13/world/asia/china-muslim-detainment-xinjang-camps.html?rref=collection%2Ftimestopic%2FUighurs%20(Chinese%20Ethnic%20Group)&action=click&contentCollection=timestopics&region=stream&module=stream_unit&version=latest&contentPlacement=4&pgtype=collection.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Autonomous Region People’s Congress, Announcement of Standing Committee of the 13th People’s Autonomous Region, National News ( Last Updated Oct. 9, 2018), http://www.xjpcsc.gov.cn/1009/t4028e49c665347630166588b8cf40001001.html.

[20] Rian Thum, China Locks Up Ethnic Minorities in Camps. It Says So Itself., N.Y. Times (Oct. 25, 2018), https://www.nytimes.com/2018/10/25/opinion/china-camps-uighurs-xinjiang.html?rref=collection%2Ftimestopic%2FUighurs%20(Chinese%20Ethnic%20Group).

[21] Westcott & Xiong, supra note 7.

[22] Id.

[23] Id.

[24] Buckley, supra note 14.

[25] BBC, supra note 1.

[26] Id.

[27] Buckley, supra note 14.

[28] Uighur, supra note 6.

[29] Chris Buckley, China Is Detaining Muslims in Vast Numbers. The Goal: ‘Transformation.’, N.Y. Times (Sept. 8, 2018), https://www.nytimes.com/2018/09/08/world/asia/china-uighur-muslim-detention-camp.html?module=inline.

[30] Id.

[31] Id.

[32] Buckley, supra note 14.

[33] Id.

[34] Chris Buckley, China Beaks Silence on Muslim Detention Camps, Calling them ‘Humane’, N.Y. Times (Oct. 16, 2018), https://www.nytimes.com/2018/10/16/world/asia/china-muslim-camps-xinjiang-uighurs.html?rref=collection%2Ftimestopic%2FUighurs%20(Chinese%20Ethnic%20Group)&action=click&contentCollection=timestopics&region=stream&module=stream_unit&version=latest&contentPlacement=3&pgtype=collection; see also Westcott & Xiong, supra note 7.   

[35] Marco Rubio & Chris Smith, Chairs Lead Bipartisan Letter Urging Administration to Sanction Chinese Officials Complicit in Xinjian Abuses, Cong. Exec. Comm. on China (Aug. 29,2018), https://www.cecc.gov/media-center/press-releases/chairs-lead-bipartisan-letter-urging-administration-to-sanction-chinese.

[36] Id.

[37] S. 284, 114th Cong.§ 3.

[38] Uighur supra note 6; see also Buckley supra note 29.

[39] Uighur supra note 6; see also Thum supra note 20.

[40] Uighur supra note 6.

[41] Westcott & Xiong supra note 7; see also Bunin supra note 3.

[42] Rubio & Smith supra note 35; see also Uighur supra note 6.

Zimbabwe’s Government Takings: The Need for Undeniable and Equal Rights to Property.

By Chad Antuma

Prior to enacting its 2013 Constitution, Zimbabwe was in political and economic upheaval. Notably, Zimbabwe was going through a period of hyperinflation where the Zimbabwean dollar was estimated to have lost 99 percent of its value. Some commentators believe that the root cause of this period of hyperinflation and political trauma was the lack of private property rights. Beginning in 1980 when President Mugabe came into power, the government began seizing commercial farms and other private property in an official policy effort to provide indigenous black farmers with property to work and grow crops on. These land grabs, without compensation, were most prevalent in the early 2000s when Mugabe ordered 4,500 commercial farms to be sized and given to his political pals. All of this culminated into an economic depression which scared off investment in the Zimbabwean economy. These deprivations and acquisitions of property without compensation were deemed to be clearly authorized under the 1980 constitutional framework.

Today, even with a constitutional right to property under the new constitution, a landowner’s security in agricultural property is at risk of deprivation or acquisition without compensation. Legal scholars commentating on the new constitution are divided as to what property rights private non-agricultural landholders have. There is agreement that landowners must be compensated for acquisitions of personal property. Section 71 (3) of the constitution states that “no person may be compulsorily deprived of their property,” except in certain circumstances. However, in the same section of the constitution uses “acquisition” interchangeably with “deprivation.” The split opinions are on whether the constitution commands compensation for both deprivations and acquisitions of personal property.

While the constitution does provide safety for property owners from government acquisitions of their property, what happens if the landowner is only deprived of their property, must they be compensated? This question remains to be answered, but brings up new questions as well, what is deprivation of the property; would the government benefit, in the way Mugabe’s officials did in the past, from merely depriving people of their property; and will these new property rights draw in the investment that Zimbabwe needs to advance economically? I think most will agree that investors need to be reassured, after the years of land grabbing, that their investment will at least be safe from being procured from the government. Without that reassurance, there will be significant concern that the Zimbabwean government will return to its land grabbing days under the Mugabe regime.

With President Mugabe’s recent choice to resign, Zimbabwe held elections and chose a new president for the first time in 37 years. The new president, Emmerson Mnangagwa, has declared that the controversial land takings that took place under Mugabe’s rule will not be reversed and affirmed that the in modernizing the agricultural industry the “government will continue to facilitate the enhanced processing and value addition of our resources.” This ominous statement should leave agricultural investors with a reason to stay far away from Zimbabwe’s farmlands and probably from Zimbabwe property in general.

Governmental takings will likely remain to be a foremost concern for non-indigenous peoples of Zimbabwe, but there are other property rights at stake in private rights to property affecting the indigenous people of Zimbabwe. Widows, yes widows, are fighting an uphill battle to claim real property that should be transferred to them without much effort. Despite the affirmative declaration in the Zimbabwe constitution that everyone has a right to hold and acquire property, certain groups, including widows of deceased landowners, are struggling to keep property that they should be legally entitled to. Many courts are choosing not to recognize woman’s rights to the very property that they have lived in and maintained while their husbands were alive. The new constitution does demand equal protection of the laws for women, which does include protection of property rights. However, this right to property has been difficult to exercise at best, and men and families of the deceased have been successfully usurping land from widows with ease. This indifference the government has been showing to its new constitution should leave all property owners in Zimbabwe uneasy about their new property rights.

Further, the Zimbabwean Constitution provides another equal protection and non-discrimination clause that should protect non-indigenous people from the laws. Clearly, this has not been the case in the past, non-indigenous landowners have been subject to discriminatory laws since the beginning of the Mugabe administration, and are certainly subject to agricultural land grabs today. This is not likely to change. In fact, it is likely to be repeated in other parts of Africa, specifically, reports state that South Africa will soon be facing problems with a similar land grabbing policy.

Until a standardized system of property rights recognition has been fully integrated and litigated outside investment into the Zimbabwean economy should remain thin. Unless Zimbabwe takes more affirmative action toward recognition of everyone’s property rights or a method of international enforcement is developed, Zimbabwe will continue to be labeled the land grabbing nation that it pretends it isn’t.

Increasing Access to Health Care for the LGBT Community in India

By Kaitlin Allen

Recent years have seen major legal victories for LGBT rights across the globe.[1] One of the countries that has seen dramatic changes in the legal status of LGBT individuals is India.[2] Same-sex relationships were criminalized in India until 2018, when the Supreme Court struck down the application of the law to consensual same-sex relationships on the basis that it violated an individual’s right to privacy.[3] While the recent legalization of same-sex relationships in India was a major victory, LGBT individuals in India still face many challenges.[4] One of the biggest areas in which India needs to improve is in providing health care to LGBT individuals. Globally, members of the LGBT community have faced difficulty and discrimination when it comes to receiving healthcare services, and India is no exception to this problem.

In a major victory for LGBT rights, India’s Supreme Court struck down a section of India’s penal code which criminalized “consensual same-sex relationships” on September 6, 2018.[5]  Under the penal code, same-sex relationships in India were punishable by 10 years up to life in prison.[6] The law had been previously struck down by the Delhi High Court in 2009, but the Supreme Court overturned that ruling in 2013.[7] In overturning the lower court’s ruling, the Supreme Court ruled that it was the responsibility of the legislature to amend the law and not the court.[8] The court also found that there was a lack of evidence that LGBT individuals were facing discrimination, either by the government or society.[9] In the most recent case overturning the law, the Supreme Court ruled that the law violated the right to privacy of LGBT individuals.[10] In addition to decriminalizing same-sex relationships, the court ruled that members of the LGBT community should be given full legal rights under India’s Constitution.[11]

Despite the Supreme Court’s ruling, many challenges for LGBT individuals in India remain.[12] One important step for equality is ensuring that members of the LGBT community are receiving proper health care.[13] The right to health has been recognized as a human right under the International Covenant on Economic, Social, and Cultural Rights.[14] There is a consensus that LGBT individuals face additional challenges when it comes to receiving health care.[15] However, there is not great global data on the increased health care burdens faced by the LGBT community.[16] The Kaiser Family Foundation found that in the United States, LGBT individuals face difficulties accessing health care due to factors such as social stigma, discrimination, and lack of coverage. [17] It also found that members of the LGBT community were at a higher risk for certain conditions such as mental health issues, HIV, and substance abuse.[18]

As recently as 2013, there was significant resistance from many countries about the World Health Organization addressing the issues that LGBT individuals face in receiving appropriate health care.[19] When the United States, Brazil, and Thailand asked for the issue to be raised at a WHO Executive Session, other countries from Africa and the Middle East asked that the item be removed.[20] It was the first time that an Executive Member Country had asked for something to be removed from an agenda.[21] The argument of these countries was that there was no health disparity between LGBT individuals and non-LGBT individuals.[22] They also argued that this was a political issue, not a public health issue and that any discussion of the problem could only serve to further damage public health.[23]  Ultimately, the World Health Organization failed to reach any agreement on how to best address these issues.[24]

The International Federation of Medical Students’ Associations passed a resolution in 2014 that sought to end discrimination and improve the health of members of the LGBT community.[25]  The proposal sought to decrease the number of laws around the globe that are discriminatory towards LGBT people and advocated for the inclusion of LGBT related content in medical school curriculum.[26] The Association directly referenced the failure of the World Health Organization to address these issues as a motivating factor behind the move.[27]

The challenges faced by LGBT individuals that are being noticed globally are also present in India. For instance, it remains difficult for patients in India to get access to services such as HIV testing.[28] Discriminatory attitudes amongst doctors make access to care more difficult.[29] When LGBT patients go see doctors in India, the doctors may try to prescribe conversion therapy, which can make LGBT individuals hesitant to interact with the medical profession at all.[30] In response to these challenges, some in the LGBT community in India have begun to create lists of LGBT-friendly doctors that are passed around online.[31] Many in India hope that in light of the Supreme Court’s ruling, the government will distribute new guidance to health care providers on how to properly interact with LGBT patients.[32]

There were some direct benefits of the ruling of the Supreme Court of India as it relates to public health.[33] The decision directly stated that India’s Constitution guarantees LGBT individuals the right to medical care.[34] In addition to the direct results of the decision, decriminalization allows for LGBT individuals to have frank discussions with their healthcare providers about their medical needs.[35] It also allows for health care professionals to distribute contraception and discuss safe sex practices without being concerned that they may be violating the law.[36]

The decision by the Supreme Court of India to decriminalize same-sex relationships was a positive move towards equality. It also allows for individuals to seek the health care they need in situations where they might have otherwise been unable.  However, there is still much more work to be done. The World Health Organization’s inability to reach a consensus on these issues shows the difficulties that remain. More research should be done globally on the health outcomes of LGBT individuals. Additionally, the discriminatory attitudes of the medical profession should be addressed where applicable through greater training. Addressing the issues that LGBT individuals face when trying to receive health care is crucial in moving towards true equality.

 

 


[1] The State of LGBT Human Rights Worldwide, Amnesty International, https://www.amnestyusa.org/the-state-of-lgbt-rights-worldwide/ (last visited Nov. 4, 2018).

[2]  Jeffrey Gettleman, Kai Schultz, and Subhashini Raj, India Gay Sex Ban Is Struck Down. ‘Indefensible,’ Court Says., N.Y. Times (Sept. 6, 2018), https://www.nytimes.com/2018/09/06/world/asia/india-gay-sex-377.html.

[3]Id.; India: Supreme Court Strikes Down Sodomy Law, Human Rights Watch (Sept. 6, 2018), https://www.hrw.org/news/2018/09/06/india-supreme-court-strikes-down-sodomy-law.

[4] Gettleman, supra note 2.

[5] India: Supreme Court Strikes Down Sodomy Law, supra note 3.

[6] Id.

[7] Id.

[8] Id.

[9] Jayshree Bajoria, The Indian Activist Jailed for Being Gay, Human Rights Watch, (Sept. 8, 2018) https://www.hrw.org/news/2018/09/08/indian-activist-jailed-being-gay.

[10] India: Supreme Court Strikes Down Sodomy Law, supra note 3.

[11] Gettleman, supra note 2.

[12] Id.

[13] Nils Daulaire, Bringing LGBT Health Care to the World Health Organization, Huffpost (June 13, 2013) https://www.huffingtonpost.com/nils-daulaire/world-health-organization-lgbt_b_3430849.html.

[14] Gender, Equity & Human Rights, World Health Organization (2016) at 4, https://www.who.int/gender-equity-rights/news/20170329-health-and-sexual-diversity-faq.pdf?ua=1.

[15] Daulaire, supra note 13.

[16] Id.

[17] Jennifer Kates, Usha Ranji, Adara Beamesderfer, Alina Salganicoff, Lindsey Dawson, Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender (LGBT) Individuals in the U.S, Kaiser Family Foundation, (May 3, 2018), https://www.kff.org/disparities-policy/issue-brief/health-and-access-to-care-and-coverage-for-lesbian-gay-bisexual-and-transgender-individuals-in-the-u-s/.

[18] Id.

[19] Daulaire, supra note 13.  

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Lucas Scherdel, Amelia Martin, Abi Deivanayagam, Ellen Adams, Thomas Shanahan, The Search for International Consensus on LGBT Health, 2 The Lancet 321 (2014).

[25] Id.

[26] Id.

[27] Id.

[28] Sushmita Pathak, Furkan Latif Khan, India's Anti-Gay Law Is History. Next Challenge: Treat LGBTQ Patients With Respect, NPR (Sept. 17, 2018), https://www.npr.org/sections/goatsandsoda/2018/09/17/645279722/indias-anti-gay-law-is-history-next-challenge-treat-lgbtq-patients-with-respect.  

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

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