The Broken System of Consumerism: The Right to Repair Movement and Its Impact on European Union Directive Revisions

By Tia Rowe

Consumer concerns and environmentalism are two of the motivations behind the blossoming “Right to Repair” movement that is developing across the United States and Europe.[1] This movement seeks to address both the monetary cost and the environmental impact of consumer goods being manufactured, specifically, goods which stop working shortly after the warranty period ends and are constructed in such a way that it is nearly impossible to make repairs to them.[2] This movement has led the European Union to consider new revisions to its Ecodesign Directive.[3] These revisions would direct manufacturers to make consumer goods that can be repaired and to provide spare parts for such repairs.[4] This blog post will briefly explore the growing Right to Repair movement and the proposed European Union directive to implement regulations reflective of that movement.

In 2015 a German study found that “the share of large household appliances that had to be replaced within the first five years of use grew from 7% of total replacements in 2004 to 13% in 2013.”[5] This concern over the increased consumption of goods is one of the driving factors behind community groups known as “Repair Cafes” and “Restart Parties.”[6] These groups are usually comprised of volunteers – although there are also repair shops that are run as businesses – and the groups fix products brought to them that no longer work.[7] The Right to Repair movement was developed from a desire to address planned obsolescence and to oppose companies that do not allow repairs to be made to their products.[8] For instance, one Repair Café volunteer described making repairs as a “political act” when making such repairs “is actively discouraged by manufacturers."[9]

In addition to planned obsolescence concerns, there is also an issue regarding the impact that throwing away large amounts of consumer goods has on the environment.[10] Throwing away consumer goods, especially electronics and large appliances, and subsequently purchasing new goods uses CO2 and the discarded products are often not properly recycled.[11] The right to repair regulations would be part of a revision to the European Union’s Ecodesign Directive, which has been primarily focused on directing manufacturers to create more energy efficient products.[12] By introducing the regulations under the mantle of the Ecodesign Directive, the European Union is acknowledging the environmental concerns associated with the inability to fix products, which causes the consumer to throw out the broken product and replace it with a new product.[13] For example, many lamps sold in the United Kingdom and Europe are designed so that the lightbulb cannot be changed once it dies.[14]  This forces the consumer to throw out the lamp and buy a new one when the lightbulb burns out, which is incredibly wasteful and can be expensive to the consumer.[15]

The European Union will be voting on regulations based on which consumer good is being considered.[16] Specifically, the European Union will be voting on regulations for refrigerators, lighting, electronic displays, dishwashers, and washing machines.[17] The first vote was on December 10, 2018 and pertained to refrigerators.[18] The Member States ultimately voted that “manufacturers selling refrigerators in the EU will have to sell consumers the spare parts they need to fix their own machines. They also have to be designed to be repaired with common tools.”[19] This vote was seen as a beginning victory for the Right to Repair movement, but it is just the first step with more votes and discussions to come.[20] There is a tension between focusing on making it easier to recycle consumer goods versus making it easier to repair the goods prior to recycling them.[21] The former position is supported by lobbyists for manufacturing and tech companies while the latter is supported by groups like Repair Cafes.[22] This tension, paired with the scheduled voting on different major appliances, may lead to a discrepancy between regulations based upon the appliance in question.[23]

If regulations are different for each consumer good, it may be harder for Repair Cafes and repair shops in general to maintain clientele. It might be difficult to create a culture that repairs instead of replaces if the consumer can only repair certain goods and only in certain ways. For example, it would be confusing to the consumer if – hypothetically – refrigerators can only be repaired by professional repair shops, washing machines can be repaired by anyone, and lighting fixtures cannot be repaired but can be broken down to be recycled. The possibility of different regulations for different products could exacerbate one of the problems in the Right to Repair movement: the lack of a repair culture.[24] Despite the tension between lobbyists and the Right to Repair movement, it is notable that the European Union is addressing the issue of consumer waste and the environmental impact associated with discarding rather than repairing consumer goods. Regardless of the regulation outcome and hypothetical confusion that may result, the conversation generated by the revised directive may help encourage people to seek repairs before throwing out their broken products, thus helping to cultivate a repair culture. The system of consumerism is broken, but hopefully, like an old washing machine, it too can be repaired.


[1] See generally Lucy Hooker, What should I do with my broken kettle?, BBC (Oct. 31, 2018), https://www.bbc.com/news/business-45969676; Lucas Laursen, The 'Right to Repair' Movement Is Gaining Ground and Could Hit Manufacturers Hard, Fortune (Jan. 09, 2019), http://fortune.com/2019/01/09/right-to-repair-manufacturers/.  

[2] See Roger Harrabin, Climate change: 'Right to repair' gathers force, BBC (Jan. 09, 2019), https://www.bbc.com/news/science-environment-46797396?fbclid=IwAR3cgev2KhfaXBUvUfL7jcFsC5YbNKFkitw7MJBD7-sSFtkUWMZTI2_xz_0.

[3] See generally Laursen, supra note 1; id.

[4] See generally Laursen, supra note 1; id.

[5] Susanna Ala-Kurikka, Lifespan of consumer electronics is getting shorter, study finds, Guardian (Mar. 03, 2015), https://www.theguardian.com/environment/2015/mar/03/lifespan-of-consumer-electronics-is-getting-shorter-study-finds.

[6] See generally Maarten Depypere, EU votes to make refrigerators more repairable, iFixitorg (Dec. 13, 2018), https://ifixit.org/blog/12497/eu-ecodesign-vote/; The Manchester Declaration, https://manchesterdeclaration.org (last visited Jan. 13, 2019).

[7] See e.g., Kate Lyons, Can we fix it? The repair cafes waging war on throwaway culture, Guardian (Mar. 15, 2018), https://www.theguardian.com/world/2018/mar/15/can-we-fix-it-the-repair-cafes-waging-war-on-throwaway-culture.

[8] See e.g., id.

[9] Id.

[10] Gaby Hinsliff, ‘Make do and mend’ is a good, green motto for our wasteful times, Guardian (Jan. 11, 2019), https://www.theguardian.com/commentisfree/2019/jan/11/mend-eu-right-to-repair-white-goods-planet.

[11] See generally Electronic waste poses ‘growing risk’ to environment, human health, UN report warns, UN News (Dec. 13, 2017), https://news.un.org/en/story/2017/12/639312-electronic-waste-poses-growing-risk-environment-human-health-un-report-warns; Harrabin, supra note 2; Hooker, supra note 1.

[12] Mauro Anastasio, EU to deny citizens longer-lasting and repairable popular consumer products – MEDIA BRIEF, Eur. Envtl. Bureau (Nov. 29, 2018), https://eeb.org/eu-to-deny-citizens-longer-lasting-and-repairable-popular-consumer-products-media-brief/.

[13] See generally id.

[14] Harrabin, supra note 2.

[15] Id.

[16] Anastasio, supra note 11.

[17] Id.

[18] Matthew Gault, Protesters Are Slowly Winning Electronics Right-to-Repair Battles in Europe, Motherboard (Dec. 14, 2018, 7:00 AM), https://motherboard.vice.com/en_us/article/9k487p/protesters-are-slowly-winning-electronics-right-to-repair-battles-in-europe.

[19] Id.

[20] See generally id.

[21] Id.

[22] See generally id.

[23] See generally id.; Laursen, supra note 1.

[24] Gault, supra note 17.

The Philippines - President Rodrigo Duterte’s Violent Police State

By Morgan Stage

On June 30, 2016, Rodrigo Duterte took office as the President of the Philippines.[1] Since becoming president, Duterte has made it his mission to face and eradicate Philippine’s drug problem.[2] The President sees the drug problem as a “major obstacles to the Philippines’ economic and social progress.”[3] In 2015 it was said that 3% of the Philippine population were drug users, equating to 3 million people.[4] Using these statistics President Duterte has carried on a violent war on drugs.[5] But is the drug problem in the Philippines really bad enough to justify the level of President Duterte’s violence?

 

It has since come to light that the statistics used to justify the President’s drug policies were largely inflated. In 2015 the Philippine Dangerous Drugs Board estimated that only 1.8 million people in the Philippines were drug users rather than the previously stated 3 million.[6]  While this is not to say that drugs were and are not still a problem in the Philippines, it is likely that the problem is overstated.

 

President Duterte continues to wage his war on drugs, despite reports that the numbers are inflated.[7] His violent “war on drugs” has led to the extrajudicial kills of at least 12,000 people.[8] His actions have caught the attention of the rest of the world as international human rights groups have now been looking into the matter.[9]

 

While some may see this as a police force gone wrong, President Duterte is to blame by sanctioning and encouraging police actions. Shortly after he was elected, President Duterte stated, “Hitler massacred three million Jews … there’s three million drug addicts. There are. I’d be happy to slaughter them.”[10] He has since apologized for the statement, but the statement shows the President’s propensity for violence.

 

Criticism by others has not been taken well. Opposition by human rights advocates has been met with a similar level of violence.[11] Filipino Senator Leila de Lima, one of the President’s biggest critics, has been jailed since February 2017 on “politically motivated drug charges in apparent retaliation for leading a Senate inquiry into the drug war killings.”[12] President Duterte also encouraged the police to respond violently to human rights advocates telling the police to “shoot them if they are obstructing justice.”[13] The President also vastly underreports deaths due to the police in official international documents.[14]

 

This “war on drugs” is also being disproportionally carried out among the Philippines’ lower socio-economic levels. Of the estimated 12,000 extrajudicial killings, most were from “poor families in urban centers” across the Philippines[15] The president has also been criticized for “targeting the urban poor and failing to take down any kingpin drug dealers.”[16]

 

Publicly, the President’s office responds to the criticism by saying death is “a necessary evil” and a natural problem when dealing with a drug problem.[17] Derrick Carreon, a spokesman for the Philippine drug enforcement agency defended the number of deaths stating, “anti-drugs operations carry the highest possibility of an armed encounter, especially if the suspect is armed and under the influence of illegal drugs.”[18]

 

While the tragedy in the Philippines’ seems to be out of control, a smaller glimmer of hope shines. In late 2018, three Philippine policemen were found guilty of murder.[19] This was the first conviction of police officers related to a drug pursuit since President Duterte began his crusade.[20] Each officer was sentenced to 40 years in prison.[21]

 

The victim, 17-year-old Kian delos Santos, was shot by police in an alley in August 2017.[22] The police claimed the teenager was a drug runner and also claimed that he pulled a gun on them while running away.[23] “The official police photograph of the crime scene showed a gun and packets of methamphetamine next to Santos' body — two bullets in his head — to back up their claim.”[24]

 

Over 12,000 extrajudicial killings[25] have occurred as a result of the President’s “war on drugs” so what made Santos’ the first to result in a conviction of the police? Luckily, neighborhood surveillance footage was available.[26] The footage showed the police dragging Santos into the alley rather than the reported “fleeing police” scenario they gave.[27] “Human Rights Watch called the decision of the court a ‘triumph of justice and accountability and a warning to members of the Philippine National Police to respect due process and the rights of civilians as they do their job.’"[28]

 

But two police convictions are not enough. Global attention should be brought to a State leader that readily compares his efforts to that of the Holocaust.[29] As seen in many other times and places, a violent police state is not the proper response to a drug epidemic. This violent response is even more unjustified when it is likely that the drug problem itself is overstated.[30] President Rodrigo Duterte’s violent crusade against drug offenders is a Human Rights violation of massive proportions.

 


[1] “Philippines’ War on Drugs,” Human Rights Watch, https://www.hrw.org/tag/philippines-war-drugs (last visited Jan. 13, 2019).

[2] Interview by Michelle Xu with Josh Gershman, expert on Philippine’s Politics, Council on Foreign Relations  (Dec. 16, 2016)

[3] Id.

[4] Gideon Lasco Just How Big is the Drug Problem in the Philippines Anyway?, The Conversation, (Oct. 20, 2016) https://www.sbs.com.au/news/dateline/article/2016/10/20/just-how-big-drug-problem-philippines-anyway

[5] “Philippines’ War on Drugs,” supra note 1.

[6] Lasco, supra note 4.

[7] See Emily Sullivan, 3 Police Officers Found Guilty Of Murder In Philippines' War On Drugs, NPR (Nov. 29, 2018) https://www.npr.org/2018/11/29/671795507/3-police-officers-found-guilty-of-murder-in-philippines-war-on-drugs.

[8] Id.

[9] Id.

[10] Lasco, supra note 4.

[11] See “Philippines: Duterte’s ‘Drug War’ Claims 12,000+ Lives,” Human Rights Watch (Jan. 18, 2018) https://www.hrw.org/news/2018/01/18/philippines-dutertes-drug-war-claims-12000-lives

[12] Id.

[13] Id.

[14] See Hannah Ellis-Petersen, Duterte's Philippines Drug War Death Toll Rises Above 5,000, The Guardian (Dec. 19, 2018) https://www.theguardian.com/world/2018/dec/19/dutertes-philippines-drug-war-death-toll-rises-above-5000. “The official toll falls well short of estimates given by human rights groups and campaigners for victims, which vary from 12,000 to 20,000.” Id.

[15] “Philippines: Duterte’s ‘Drug War’ Claims 12,000+ Lives,” supra note 11.

[16] Ellis-Petersen, supra note 14.

[17] Id.

[18] Id.

[19] Sullivan, supra note 7.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] See Lasco, supra note 4.

[30] See id.

Japan Interrogation Reform

By: Ahnaleza Wilseck

In 2009, the senior bureaucrat at Japan’s Health, Labor and Welfare Ministry, Atsuko Muraki, was charged with document forgery.[1] Prosecutors accused her of helping an organization get certain postal discounts by forging a governmental certification.[2] The high-profile crime was dubbed the Postal Fraud Case, and there were suspicious of a deeper conspiracy at play.[3] The evidence against Muraki: the confession of a single junior official.[4]

            Under Japan’s Criminal Procedure Code, confessions are to be handled with particular care.[5] Only a confession that is a “written statement of the accused containing the admission of a disadvantageous fact and his/her signature” made voluntarily may be admitted into evidence.[6] Generally, these statements are not written by the suspect, but instead are typed by police or prosecutors, and brought to the suspect for review and signature.[7] When the voluntariness of the confession is questioned, the prosecutor and defense attorney can do no more than argue for their side’s narrative.[8]

            After Muraki was arrested based on the forgery charges in the Postal Fraud Case, the junior official accused the police and prosecutors of coercing a false confession from him.[9] Since an involuntary confession cannot be admitted into evidence, Muraki was acquitted.[10] The public was outraged and pushed for answers about what had really happened in the interrogation room.[11] In response, the Justice Ministry pledged to make interrogations more transparent so as to ensure confessions would be permitted in court.[12]

            According to Human Rights Watch, what really happened in the interrogation room might have been worse than most people imagine.[13] Suspects in Japan could be held for up to twenty-three days, and regularly questioned by police and prosecutors.[14] Each interrogation could use various forms of pressure from complete exhaustion, as suspects sat through up to ten-hour sessions, “to threats, deprivation of food and drink, and violence, in the form of poking, kicking and beating.”[15] Human Rights Watch listed recommendations for interrogation reform in 1995, which included strict rules on the time permitted for each session and clear bans on the use of violence and psychological pressure.[16] Far more impactful, however, was Human Rights Watch’s list of individuals who had falsely confessed to crimes to end their interrogations, which included four men acquitted of unrelated murders between 1983 and 1989.[17] Some of the major issues with interrogations, according to Human Rights Watch, stemmed to the fact that throughout the twentieth and early twenty-first century, including during the Postal Fraud Case, Japanese prison law had not been updated since 1908.[18] Rules that did not take into account the ability to be transparent could not keep up with the practice of law in a new, more transparent, century.

            After the Postal Fraud Case, the Justice Ministry’s pledge to increase transparency in interrogations lapsed until Japan amended its Criminal Procedure Code in 2016.[19] In an effort to make interrogations more transparent, the amendment included new mandates for interrogation practices, including “mandatory video recording of interrogations in certain types of crimes” that must be fully implemented by July 2019.[20] The crimes that require video recording are crimes punishable by death or life imprisonment, crimes punishable by over a year in prison when the victim has died due to the criminal act, and any crimes that are investigated by prosecutors rather than the police.[21] However, even in these crimes, the interrogator may at times waive video recording.[22]  This waiver is permitted for major issues, such as the suspect’s fear of retaliation if his confession was ever released, but video recording may also be waived by the interrogator for simple problems, including the video recording device being currently broken.[23] Even when the waiver is not invoked, this only leads to recorded interrogations in 3% of all Japanese criminal cases.[24]

            In order to lower the need for confessions in the first place, the law also created Japan’s criminal bargaining system.[25] Previously, no plea bargaining was permitting in Japan.[26] Since the 2016 amendment to the Criminal Procedure Code, however, prosecutors are permitted to drop or lower charges, but only when a suspect agrees to give information about another person’s crime.[27] Only certain charges may be dropped or reduced, and murder and burglary are always excluded.[28] Once a suspect has agreed to tell the truth about the other crime in the investigation or be a witness in the other person’s trial, the court must approve of the agreement, otherwise, it may be canceled.[29]

            Legal minds in Japan are “wary” of the use of testimony bargains.[30] The goal with the 2016 amendment was to increase transparency, but the inclusion of bargains with prosecutors do not bring more light to the issue of interrogations; they merely have diversified the types of investigations police and prosecutors use.[31] While the video recorded interrogations were meant to ensure confessions in Japan were not coerced, the new bargaining system has many worried that suspects will be enticed to lie about other people’s crimes.[32] Indeed, “critics are worried that pressure from prosecutors to cut deals will only reinforce the weaknesses of Japan’s current criminal justice system.”[33] The issue of false and coerced confessions looks to have not been solved. Further, the bargains between suspects and prosecutors will not be recorded.[34]

            With the deadline to record interrogations looming next year, journalists in Japan are wondering if the 2016 amendment has changed anything substantially for suspects, or if they have simply altered the procedures interrogators may use.[35] In order to make a true change to the Japanese interrogation system, Japan should implement video recording of all interrogations, including during the new bargaining procedures.[36] By recording interrogations, Japanese prosecutors have evidence to show that the confessions given were reliable and not coerced.[37] Similarly, by recording the bargaining process, prosecutors can show that the testimony against other defendants is consistent and not coerced.[38] The underlying issue is that the Japanese system is focused on confessions and testimony as the most important form of evidence in criminal proceedings.[39] This type of evidence must be supported, and it can be supported through video recordings in order to ensure the system maintains its integrity.


[1] Sakura Murakami, Japan’s Criminal Justice Reforms Aim to Enhance Transparency of Interrogations — Are They Working?, The Japan Times News (June 18, 2018), https://www.japantimes.co.jp/news/2018/06/18/reference/japans-criminal-justice-reforms-aim-enhance-transparency-interrogations-working/#.W94Nli3My8p.

[2] Id.

[3] Id.

[4] Id.

[5] Japan: 2016 Criminal Justice System Reform, The Law Library of Congress (Dec. 14, 2016), https://www.loc.gov/law/help/criminal-justice-system-reform/japan.php.

[6] Id.

[7] Id.

[8] Id.

[9] Murakami, supra note 1.

[10] Id.

[11] Id.

[12] Id.

[13] Prison Conditions in Japan, Hum. Rts. Watch xiii (Mar. 1995), https://www.hrw.org/sites/default/files/reports/JAPAN953.PDF.

[14] Id.

[15] Id.

[16] Id. at xx.

[17] Id. at 3–4.

[18] Id. at viii.

[19] Japan, supra note 5.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Murakami, supra note 1.

[26] Japan, supra note 5.

[27] Id.

[28] Id.

[29] Id.

[30] Murakami, supra note 1.

[31] Id.

[32] Sakura Murakami, Japanese-Style Plea Bargaining Debuts but Authorities Fear Spread of False Testimony, The Japan Times News (May 31, 2018), https://www.japantimes.co.jp/news/2018/05/31/national/crime-legal/japanese-style-plea-bargaining-debuts-authorities-fear-spread-false-testimony/#.W99bkS3My8o.

[33] Id.

[34] Id.

[35] See id.; see also Murakami, supra note 1.

[36] Murakami, Japanese-Style Plea Bargaining Debuts, supra note 32.

[37] Id.

[38] Id.

[39] Id.

Shipwrecks, Ancient History, and the “Inhospitable Sea:” Ownership Implications for Discoveries in the Black Sea

By Tia Rowe

In October 2018, a team of scientists, marine archeologists, and surveyors discovered what is believed to be the world’s oldest intact shipwreck.[1] The ship is thought to be from Ancient Greece and to be over 2,400 years old.[2] Notably, the ship resembles the vessel pictured on the “Siren Vase.”[3] The Vase depicts a scene in which Odysseus is tied to the mast of his ship.[4] This find is incredibly valuable because it may contain more ancient artifacts within its hold and could inform researchers about ancient seafaring and shipbuilding.[5] This shipwreck was found as part of a larger expedition that led to the discovery of over 60 other shipwrecks in the Black Sea.[6] The team also discovered “Roman trading ships and a 17th Century Cossack trading fleet.”[7] These invaluable discoveries raise the question of who owns or has rights to these shipwrecks; this post aims to answer that question by analyzing another shipwreck and looking at two international law schemes that deal with maritime cultural heritage.

            A similar question arose when the San Jose shipwreck was found off the coast of Colombia.[8] The San Jose shipwreck is thought to be carrying somewhere between $1 billion and $17 billion worth of treasure.[9] The Colombian government has claimed ownership over the wreck because it argues that the wreck was found in Colombian “territorial waters.”[10] However, Spain has also claimed ownership because San Jose was a Spanish ship that was sunk by the British in 1708.[11] Initially, courts would look to treaties governing the issue of shipwrecks, but Colombia is not a party to the United Nations treaties that cover underwater cultural heritage.[12] Thus, courts can look to the international custom rule favoring “flag states,” which allows “the country whose flag is on the sunken ship [to] only lose[] its right to what's onboard if it formally relinquishes that right.”[13] Additionally, the type of ship matters in ownership claims because of the custom of “sovereign immunity.”[14] Sovereign immunity “refers to a specific category of ships that are immune from legal proceedings by another state. Warships and other government ships operated for non-commercial purposes enjoy sovereign immunity.”[15] The dispute over the San Jose wreck is still ongoing, but it illustrates two main tenants of international law regarding underwater cultural heritage: treaty law and international custom law.[16]

The countries that border the Black Sea are Ukraine, Russia, Georgia, Turkey, Bulgaria, and Romania.[17] Out of those countries, only the Ukraine, Bulgaria, and Romania are parties to the UNESCO Convention on the Protection of the Underwater Cultural Heritage, which has a provision regarding shipwreck ownership.[18] Thus, the UNESCO Convention is unlikely to be applicable to any shipwreck claims made in the Black Sea, unless the dispute is among those countries.[19] There is an agreement between the aforementioned countries, and others in the region, that commits to working toward a prosperous Black Sea region.[20] The Black Sea Economic Cooperation does outline cultural goals for the region, but it does not explicitly explain what a country should do to claim or defend a shipwreck found outside of its territorial waters.[21]

If there is not a clear international agreement, which there does not appear to be for the countries bordering the Black Sea, then disputes can be solved using international customs.[22] As previously mentioned, the state whose flag is on the ship has ownership rights over the shipwreck.[23] This is a problematic approach to the oldest intact shipwreck that was recently found in the Black Sea because it is unclear exactly what kind of ship has been found and what flag the ship was sailing under.[24] While the ship is initially believed to be an ancient Greek trading ship,[25] the question remains whether the ship was flying under a particular state flag or whether this concept even had the same meaning 2,400 years ago.

This question may never need to be answered because the ship may never leave the bottom of the Black Sea. While researchers are concerned with the stability of the ship, one of the primary issues with doing further research on the shipwreck is the lack of funding.[26] Thus, an alternative form of ownership determination is giving rights to whichever government is able to fund the research into the shipwreck. This approach could be problematic because it does not adhere to typical ownership systems, but one must ask what should be more highly valued: a country’s claim to an ancient treasure or the knowledge gained from research of that treasure? Regardless of the answer, this shipwreck will provide invaluable knowledge by presenting a new legal question that is sure to become more relevant as underwater technology becomes more advanced and the “inhospitable sea” reveals more of its secrets.

 


[1] Kevin Rawlinson, World’s oldest intact shipwreck discovered in Black Sea, The Guardian (Oct. 22, 2018), https://www.theguardian.com/science/2018/oct/23/oldest-intact-shipwreck-thought-to-be-ancient-greek-discovered-at-bottom-of-black-sea.  

[2] Id.

[3] Id.

[4] Id.

[5] Id.; Shipwreck found in Black Sea is ‘world’s oldest intact’, BBC (Oct. 23, 2018), https://www.bbc.com/news/world-europe-45951132.

[6] Rawlinson, supra note 1.

[7] Shipwreck found in Black Sea is ‘world’s oldest intact’, supra note 4.

[8] See Willie Drye, Fight for 'World's Richest Shipwreck' Heats Up, Nat’l Geographic (July 20, 2018), https://www.nationalgeographic.com/science/2018/07/news-san-jose-shipwreck-colombia-salvage/.

[9] Chris Opfer, Who Owns the $17 Billion San Jose Loot?, howstuffworks (Jun. 14, 2018), https://history.howstuffworks.com/historical-events/who-owns-17-billion-dollar-san-jose-loot.htm.

[10] Id.

[11] Spain says it has rights to Colombian treasure ship, BBC (Dec. 08, 2015), https://www.bbc.com/news/world-latin-america-35036121.

[12] Opfer, supra note 8.

[13] Id.

[14] Shipwrecks: Who owns the treasure hidden under the sea?, BBC (June 04, 2018), https://www.bbc.com/news/world-44302476.

[15] Id.

[16] See Opfer, supra note 8.; see also Christopher Mirasola, Swimming Against the Tide: Colombia’s claim to a Shipwreck and Sunken Treasure, Harv. Int’l L.J. (Jan. 26, 2018), http://www.harvardilj.org/2016/01/swimming-against-the-tide-colombias-claim-to-a-shipwreck-and-sunken-treasure/.

[17] Aleksey Nilovich Kosarev, Vladimir Petrovich Goncharov, & Luch Mikhaylovich Fomin, Black Sea, Encyclopaedia Britannica, https://www.britannica.com/place/Black-Sea (last updated Sep. 21, 2018).

[18] UNESCO, Convention on the Protection of the Underwater Cultural Heritage, States, (Nov. 02, 2001), available at: http://www.unesco.org/eri/la/convention.asp?KO=13520&language=E&order=alpha.  

[19] See generally id.

[20] See Organization of the Black Sea Economic Cooperation, BSEC, http://www.bsec-organization.org (last visited Nov. 04, 2018).

[21] Culture, BSEC, http://www.bsec-organization.org/areas-of-cooperation/culture (last visited Nov. 04, 2018).

[22] See Mirasola, supra note 14.

[23] Opfer, supra note 8.

[24] See generally Rawlinson, supra note 1.

[25] Id.

[26] Sarah Pruitt, This Ancient Greek Vessel is the World’s Oldest Intact Shipwreck, Hist. (Oct. 23. 2018), https://www.history.com/news/oldest-shipwreck-discovery-ancient-greece.

International Dissatisfaction over Canada’s Legalization of Marijuana.

By Kendall O’Connor

In October of 2018, Canada became the second country in the world to legalize recreational marijuana, only behind Uruguay. [1] While Canada may be the second country to do so, it is considered the “first major economy to legalize recreational marijuana.”[2]   Canada’s decision to legalize has been opined as “on the edge of a cultural revolution and [a] dramatic social experiment.”[3]

With only time to tell, it is not yet clear how Canada’s decision to legalize recreational marijuana will affect the country’s own citizens. Advocates of the legalization have argued that legalizing, regulating, and restricting access to marijuana will keep the drugs away from underage users, will result in loss of profits for drug-dealers, and will no longer place those from disadvantaged communities into the criminal justice system for a harmless crime.[4] However, the legalization’s avid challengers argue in the opposite, notably contending that the same effects may come into force by “ramp[ing] up criminal enforcement of drug laws outside of a narrowly defined legal market,” or, put shortly, as “relaunching the . . . war on drugs.”[5] While the world may continue to debate and speculate on the secondary effects yet to come into fruition as a result of Canada’s legalization of medical marijuana, South Korea, Japan, and the Russian Federation have already taken a hardline stance on the issue.

Only one short week after Canada’s decision to legalize recreational marijuana, the South Korean government announced that any South Korean citizen partaking in the act of smoking marijuana would “be punished according to Korean law, even if they did so in countries where smoking marijuana is legal.”[6] South Korea went so far as to state “[t]here won’t be an[y] exceptions.”[7] Within its own jurisdiction, South Korea has been known for its strict enforcement of drugs laws.[8] South Korea believes it can continue such strict enforcement to South Korean citizens who partake in the legalized smoking of marijuana in Canada because the South Korean law “is based on the concept that laws made in [South Korean] still apply to citizens anywhere in the world . . . even while abroad.”[9]

With approximately 304,000 Japanese residents visiting Canada in 2017, Japan issued a similar statement as South Korea’s shortly after Canada’s decision.[10] The Japanese Consulate in Vancouver stated, “Japan’s laws banning the purchase of cannabis may be applied not only in Japan[,] but also in foreign countries.”[11] Like South Korea, Japan has long held a heavy stigma against the drug.[12]

Both South Korea and Japan’s stance on Canada’s decision to legalize recreational marijuana rest on the countries justice systems imposing “extraterritorial jurisdiction.”[13] Japan and South Korea’s extraterritorial jurisdiction claim, meaning the countries’ laws apply to its citizens even outside the countries themselves, may prove difficult to enforce, however.[14] For example, there are little details as to how the police would test citizens returning from Canada.[15] It does not come as a surprise that neither country believes it can screen every person returning after having visited a foreign country; such a practice would be a practically impossible, extremely difficult and expensive.[16] So, while South Korea and Japan seem to have drawn a hardline stance against its citizens partaking in the use of legalized recreational marijuana while abroad, “experts suggest enforcement would focus more on drug traffickers than casual users.”[17]

The Russian Federation, seemingly siding with South Korea and Japan, posted a statement clearly asserting its dissatisfaction with Canada’s decision, calling the decision “unacceptable and hypocritical.”[18] Russia alleged Canada’s act “contravene[d] international jurisdiction on narcotics control,” and “warned Canada was ignoring the consequences of its actions for the integrity of international law.” While Russia may be correct, the United Nations, the “body that governs international drug control,”[19] has stated their disappointment of Canada’s decision, but has yet to decide whether Canada is in violation of any international treaties.[20]

Regardless of the international pushback, Canada has held firm on its decision to legalize and regulate recreational marijuana. As a result of such resilience, Canada’s Cannabis Act, which went into law as of October 17, 2018, created a “strict legal framework for controlling the production, distribution, sale and possession of cannabis.”[21]  In addition to the limits of legal marijuana possession, the Act notably contains numerous additional provisions to ensure effectiveness, success, and ameliorate potential adverse secondary effects. For example, the Act “has several measures that help prevent youth from accessing cannabis, “ which including “both age restrictions and restricting promotion of cannabis.”[22] The Act also aims to “protect[] public health through creating strict safety and quality regulations[,] [i]n addition [to] public education efforts . . . to raise awareness about safety measures and any potential health risks.”[23]

In conclusion, the world will continue to look to Canada in the coming years as a sort of social experiment. While Canada has and may continue to receive pushback for its decision, only time will tell what will come as a result of Canada’s Cannabis Act.


[1] Dan Bilefsky, Legalizing Recreational Marijuana, Canada Begins a National Experiment, N.Y. Times (Oct. 17, 2018), https://www.nytimes.com/2018/10/17/world/canada/marijuana-pot-cannabis-legalization.html.

[2] Id.

[3] Ian Austen et al., Canada is Legalizing Marijuana. Here Are Some Questions. Answered., N.Y. Times (Oct. 16, 2018), https://www.nytimes.com/2018/10/16/world/canada/marijuana-legalization-explainer.html.

[4] Daniel Weinstock & Andrew Potter, The red flags ahead of Canada’s marijuana legalization, Globe and Mail (April 22, 2018), https://www.theglobeandmail.com/opinion/article-the-red-flags-ahead-of-canadas-marijuana-legalization/.

[5] Id.

[6] Benjamin Haas, Bong arm of the law: South Korea say it will arrest citizens who smoke weed in Canada, Guardian (Oct. 23, 2018), https://www.theguardian.com/world/2018/oct/23/bong-arm-of-the-law-south-korea-says-it-will-arrest-citizens-who-smoke-weed-in-canada

[7] Id.

[8] Id.

[9] Id.

[10] Ryan Flanagan, Japanese, South Korean citizens banned for using legal port in Canada, CTV News (Oct. 23, 2018), https://www.ctvnews.ca/canada/japanese-south-korean-citizens-banned-from-using-legal-pot-in-canada-1.4146077.

[11] Id.

[12] Id.

[13] Id.

[14] Haas, supra note 6.

[15] Id.

[16] Id.

[17] Id.

[18] Marie-Danielle Smith, South Korean warnings and Russian scorn: How the world reacted to pot legalization in Canada, Nat’l Post (Oct. 23, 2018), https://nationalpost.com/news/canada/south-korean-warnings-and-russian-scorn-how-the-world-reacted-to-pot-legalization-in-canada.

[19] Id.

[20] Albert Van Santvoort, Canada’s cannabis ‘high-handedness’ raises international disapproval, BIV (June 26, 2018), https://biv.com/article/2018/06/canadas-cannabis-raises-international-disapproval.

[21] Cannabis Legalization and Regulation, Canada Dep’t of Justice, https://www.justice.gc.ca/eng/cj-jp/cannabis/ (last visited Nov. 12, 2018).

[22] Id.

[23] Id.

The Mysterious Case of Preemptive Force in Syria

By: Matthew Thran 

On April 07, 2018 France, Britain and the United States launched a combined missile attack against the Shayrat Airbase in Syria.[1] The stated reason for the missile attack was to “show Western resolve in the face of what the leaders of the three nations called persistent violations of international law.”[2] Specifically, the attack was in response to a suspected chemical attack, perpetrated by the Syrian government, which occurred on April 07, 2018 in the town of Khan Sheikhoun, within Syria.[3] The Organization for the Prohibition of Chemical Weapons was not able to access the sites of the suspected chemical attacks until April 21, 2018, two weeks after the suspected attacks, and the missile strikes.[4]  The Chemical Weapons Convention, which Syria and other nations are a party to, prohibits the use of Chemical Weapons.[5] Despite the OPCW, the implementing party for the Chemical Weapons Convention, not having made a finding on whether a chemical attack occurred France released their own justification for the missile attack.[6] The French report stated, "After examining the videos and images of victims published online, [French intelligence services] were able to conclude with a high degree of confidence that the vast majority [of chemical attacks] are recent and not fabricated."[7] However, Syria has staunchly denied ever using chemical weapons during the civil war.[8] Despite Syria’s protestations to their use of chemical weapons the OPCW and the UN have found that Syria has used chemical weapons on at least four separate occasions during the civil war.[9]

 

It is necessary to determine whether there was a legally cognizable excuse for the United States, France, and Britain to launch a premeditated attack against another sovereign nation. As members of the United Nations France, Britain, and the United States are all bound by the provisions of the United Nations Charter.[10] Article two of the United Nations Charter states that all members must settle their disputes in a peaceful manner so that the international peace and security are not endangered.[11] Additionally, article two states, “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”[12]

Despite the prohibitions on the use of force, article 51 of the UN Charter provides for the use of force in self defense.[13] Article 51 states:

 

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.[14]

Article 51 requires that an armed attack occur before a nation can use force in self defense.[15] There was no attack on France, Britain, or the United States prior to their missile attack on Syria.

 

In addition to article 51 the United Nations Security Council has the authority to authorize the use of force against a nation. Article 39 of the United Nations Charter allows the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”[16] Article 42 provides that the Security Council may authorize the use of land, air, and sea forces as necessary to restore peace and security to the international community.[17] The Security Council did not authorize the use of force prior to the missile attack conducted by France, Britain, and the United States.

 

After the missile attack against Syria, there was an emergency session held for the UN Security Council. At the session, Russia attempted to pass a resolution condemning France, Britain, and The United States for violating international law and the UN Charter. Russia could not get the requisite amount of votes to pass the resolution, but that is not indicative of the legality of the acts taken by the United States, France, and Britain.[18]

The International Court of Justice has dealt with the issue of preemptive use of force in numerous cases. In Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, ¶ 212 (June 27) [hereinafter Nicaragua], the ICJ held that an armed attack only includes, “the most grave forms of the use of force”. Additionally, in G.A. Res. 2623 (VII) (Oct. 24, 1970), the United Nations stated that less grave uses of force that do not constitute armed attacks may involve deprivation of peoples’ self-determination, organizing or encouraging mercenaries to enter another State, and assisting or organizing terrorist attacks in another state. Under definitions put forward by both the International Court of Justice and the United Nations the United States, France, and Britain were not justified in using force against Syria.

 

Despite the attack likely having no basis in international law, there is some precedent for taking military action without United Nations authorization. In 1999 NATO began a bombing campaign against Serbia.[19] There was no United Nations resolution authorizing the bombing campaign in Kosovo but there was widespread support from the international community and the attacks were carried out by NATO rather than by independent nations.[20] There was no legal justification for the Kosovo attacks but because the international community largely supported the action there were never any consequences for the action. In the present case, Russia and China are both vehemently against intervention in Syria and the illegal attacks are likely to cause international strife.

 

[1] Helene Cooper, Thomas Gibbons-Neff & Ben Hubbard, U.S. Britain and France Strike Syria Over Suspected Chemical Weapon Attack, The New York Times (April 13, 2018), https://www.nytimes.com/2018/04/13/world/middleeast/trump-strikes-syria-attack.html.

[2] Id.

[3] Syria Chemical Attack: Experts Finally Visit Douma Site, BBC (April 21, 2018), http://www.bbc.com/news/world-middle-east-43850979.

[4] Id.

[5] Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and Their Destruction, Jan. 13, 1993;

[6]  Id., Ledyard King & Oren Dorell, French Report Lays out the Evidence: Assad Forces Conducted Chemical Attacks on Civilians, USA Today (Apr. 14, 2018), https://www.usatoday.com/story/news/world/2018/04/14/french-report-lays-out-evidence-assad-forces-conducted-chemical-attack-civilians/517187002/.

[7] King & Dorell, supra note 6.

[8] Syria Chemical Attack: Experts Finally Visit Douma Site, supra note 3.

[9] Id.

[10] U.N. Charter art. 2.

[11] Id. ¶ 3.

[12] Id. ¶ 4.

[13] Id. art. 51.

[14] Id.

[15] Id.

[16] Id. art. 39.

[17] Id. art. 42.

[18] Ray Sanchez & Laura Smith-Spark, After Syrian Airstrikes Comes Finger-Pointing and Condemnations, CNN (Apr. 14, 2018), https://www.cnn.com/2018/04/14/politics/syria-strikes-russia-us-response-intl/index.html.

[19] James Rubin, Syria is not Kosovo, The New York Times (Sept. 04, 2018), https://docs.google.com/document/d/1yrW9GC7E6SnJ4gqOPcymtzK2edPBb5Qco3D_mae6uV8/edit.

[20] Id.

Refugee and Asylum-Seekers in Malaysia: The Consequences of Invisibility

By Inessa Wurscher

In the last several decades, Malaysia has been a significant destination for large populations of both migrant workers and refugees.[1] As of the beginning of 2018, there were approximately 153,480 refugees and asylum-seekers[2] in Malaysia in addition to between four and five million migrant workers and 12,350 stateless people registered with the United Nations High Commissioner for Refugees (UNHCR).[3] However, it is believed that there are “tens of thousands more . . . [that are] still unrecogni[z]ed.”[4] Despite this sizable migration into the country, Malaysia does not have any national refugee laws or related policy frameworks, instead “any illegal entry or stay in the country is deemed punishable by law.”[5] “Malaysia [also] makes no distinction between undocumented workers and refugees,”[6] even those who have legal refugee status through the UNHCR.[7] Consequently, “[m]ost refugees are de-facto integrated into the urban fabric of the Malaysian community as part of a larger, unregulated migrant economy.”[8] While Malaysia has begun to take steps to improve the treatment of refugees and asylum-seekers, more attention still needs to be given to solidifying their legal status.

 

Refugees, as well as many migrant workers, have no legal status in Malaysia, which leaves them vulnerable to several problems, including “arrest, detention, prosecution, imprisonment and other criminal sanction[s] (including caning) and deportation if not identified, registered and granted protection by UNHCR.”[9] However, even those registered by the UNHCR are not consistently guaranteed protection in practice.[10] In Malaysia, it is illegal for refugees to work, often forcing them into sweatshops and other unlawful forms of employment where there are no protections against mistreatment.[11] They are also barred from access to healthcare.[12] Additionally, these refugees also “have no legal access to public schools and cannot afford private schools, so they can only go to NGO-sponsored schools that often do not have proper resources or space.”[13] However, there are not enough NGO-sponsored schools,[14] forcing many of the children into factories and other forms of menial labor.[15]

 

In addition to these issues with daily life, refugees and migrant workers in Malaysia are also subject to immigration raids which often lead to detention and, in some cases, deportation.[16] In Malaysia, immigration matters are governed by the Immigration Act, under which it is a “strict liability offence for persons [to be] in the country without authorization, which could include registered refugees.”[17] The fear of arrest for being an illegal entrant, regardless of registration with the UNHCR, is widespread and affects all ages.[18] Even children are frequently arrested on their way to and from school.[19] Once detained, many of these children are “separated from their families and detained with unrelated adults.”[20]

 

According to Malaysian law, “foreigners suspected of entering the country illegally . . . [can] be detained for ‘such period as may be necessary.’”[21] Many of those detained were allowed in the country legally as refugees and often spend the majority of their incarceration “petitioning the guards to notify UNHCR of their whereabouts,”[22] which is “the only way to get their refugee status verified and avoid deportation.”[23] Once detained, Malaysian law does not provide for either periodic review or judicial review of the decision to detain a migrant unless the alleged violation is related to a procedural issue.[24] On average, this detention lasts around 16 months; however, it has been known to last over five years in some cases.[25]

 

The conditions of these detention centers are also notorious for being overcrowded and unsanitary, leading to disease.[26] Many migrants detained in these centers also do not have access to nutritious food and medical services.[27] The Malaysian Public Works Department has held several blocks in detention centers to be “’unfit and unsafe for occupation.’”[28] Furthermore, the Malaysian Human Rights Commission (SUHAKAM) has gone as far as to describe the conditions in these detentions centers as ‘inhumane.’[29] The consequences of these poor conditions became clear when it was discovered that between 2014 and 2016, 161 people, many of them foreigners, died of disease in these detention centers.[30]

 

Unfortunately, “Malaysia is not a signatory to the 1951 UN refugee convention and is not bound by international laws to provide refuge, asylum, jobs and education to refugees.”[31] However, Malaysia is a signatory of the UN Convention on the Rights of the Child (CRC), which does bind them to provide protection for children.[32] As a result, many of the recent projects to improve the treatment of refugees in Malaysia have focused on children, specifically in the context of detention.[33] For example, in 2015 a national action plan was created by Malaysia and UNHCR to improve detention conditions as part of the UNHCR’s Global Strategy-Beyond Detention Program.[34] The plan focused on three goals: “[e]nd the detention of children;”[35] “[e]nsure that alternatives to detention are available in law and implemented in practice;”[36] and “[e]nsure that conditions of detention, where detention in necessary and unavoidable, meet international standards.” While this plan reaches beyond the treatment of children, children’s rights are its initial basis and is the only area in which changes have successfully been implemented.[37] These changes include greater legal and procedural protections for children, especially for unaccompanied minors, as well as the development of more alternatives to detention.[38]

 

However, this action plan has also served as a starting point from which other agreements have been created, such as the Memorandum of Understanding between the UNHCR and SUHAKAM that was signed in August of 2017.[39]  The purpose of the agreement was to “strengthen[] and formali[ze] their long-standing cooperation on human rights issues for asylum-seekers, refugees, and stateless persons.”[40] As a result of this memorandum, Malaysia has also begun to implement several educational programs for immigration officials, such as those who work in “law enforcement and prosecution for immigration offences, policy and strategy, and management of the Immigration Detention Centre.”[41] These programs focus on providing these officials with greater exposure to human rights issues and international standards for refugee protection.[42] However, while these changes have led to positive results for refugees of all ages, problems with detention still remain and the changes have had little effect on the overall legal status of refugees and asylum-seekers in Malaysia.[43]

 

There are many potential solutions that have been suggested by various organizations and individuals to deal with these outstanding issues. The UNHCR has continued to push for a greater administrative review of immigration decisions while other organizations have tried to implement greater oversight of the detention facilities and of the refugee process.[44] Some people have argued that the focus should be on “improving . . . access to employment, healthcare and education” for refugees and migrants, potentially by expanding the UNHCR’s registration system that is already in place.[45] Others argue that the “’Malaysian authorities could begin . . . by ending arbitrary and indefinite detention of migrants, including refugees and survivors of trafficking.’”[46] One organization, the Malaysian Bar Council, even went as far as creating a detailed “legal and administrative framework for dealing with asylum-seekers and refugees,” known as the proposal on “Developing a Comprehensive Policy Framework for Refugees and Asylum Seekers.”[47] However, the fact remains that few of these proposals have gone as far as to suggest that refugees receive an official legal status.

 

While Malaysia has begun to take steps to improve the treatment of refugees and asylum-seekers, more attention still needs to be given to solidifying their legal status. As discussed above, many of the problems suffered by the refugee and migrant population in Malaysia stem from their lack of status.[48] It is this lack of status that prevents them from working and from access to education and healthcare, and ultimately leads them to being arrested and indefinitely detained.[49] Although addressing the terrible conditions at detention centers, providing access to social services, and creating frameworks for administrative and judicial review of immigration decisions will certainly improve the process, the problems faced by refugees in Malaysia are likely to continue as long as they have no legal status.  

 

[1] Laignee Barron, Refugees Describe Death and Despair in Malaysian Detention Centers, The Guardian, May 15, 2017, https://www.theguardian.com/world/2017/may/16/dozens-of-refugees-have-died-in-malaysian-detention-centres-un-reveals.

[2] Figures at a Glance in Malaysia, UNHCR: The UN Refugee Agency, http://www.unhcr.org/en-us/figures-at-a-glance-in-malaysia.html.

[3]Malaysia, UNHCR: The UN Refugee Agency, http://reporting.unhcr.org/node/2532#_ga=2.22234482.836529953.1520798617-1013290880.1520798617

[4] Barron, supra note 1.

[5] Malaysia, supra note 3.

[6] Kate Mayberry, First-Class Refugees: Malaysia’s Two-Tier System, Al Jazeera, Dec. 27, 2015, https://www.aljazeera.com/indepth/features/2015/12/class-refugees-malaysia-tier-system-151221061627431.html.

[7] Kok Xing Hui, Rohingya Refugees Find Solace in Malaysia, CNN, Feb. 25, 2018, https://www.cnn.com/2018/02/24/asia/malaysia-rohingya-refugee-school-intl/index.html.

[8] Mayberry, supra note 6.

[9] UNHCR Malaysia, National Action Plan: Malaysia, Nov. 2015, http://www.unhcr.org/en-my/5660000a9.html.

[10] Id.

[11] Melissa Goh, Rohingya Refugees Work at Unlicensed Bird's Nest Factory in Malaysia to Make a Living, Channel NewsAsia, Jan. 11, 2018, https://www.channelnewsasia.com/news/asiapacific/rohingya-refugees-work-at-unlicensed-bird-s-nest-factory-in-9852428.

[12] Id.

[13] Jueun Choi & Ifath Sayed, Refugees in Malaysia: Haunted by Memories, Pulitzer Center, Feb. 8, 2018, https://pulitzercenter.org/reporting/refugees-malaysia-haunted-memories.

[14] Id.

[15] Goh, supra note 11.

[16] UNHCR Malaysia, supra note 9.

[17] Id.

[18] Ifath Sayed & Jueun Choi, Inside Malaysia’s ‘Living Hell’ for Refugee Children, Refugees Deeply, Feb. 5, 2018, https://www.newsdeeply.com/refugees/articles/2018/02/05/inside-malaysias-living-hell-for-refugee-children.

[19] Id.

[20] UNHCR Malaysia, supra note 9.

[21] Barron, supra note 1.

[22] Id.

[23] Id.

[24] UNHCR Malaysia, supra note 9.

[25] Barron, supra note 1.  

[26] Id.

[27] UNHCR Malaysia, supra note 9.

[28] A. Ananthalakshmi, Malaysia Rights Panel Disturbed Over More Than 600 Deaths in Prisons and Detention Centers, Reuters, Apr. 4, 2017, https://www.reuters.com/article/us-malaysia-detention-deaths/malaysia-rights-panel-disturbed-over-more-than-600-deaths-in-prisons-and-detention-centers-idUSKBN1760S3.

[29] Id.

[30] Barron, supra note 1. 

[31] Goh, supra note 11.

[32] Status of Treaties: Convention on the Rights of the Child, United Nations Treaty Collection, https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en.

[33] UNHCR Malaysia, supra note 9.

[34] Id.

[35] Id.

[36] Id.

[37] UNHCR Malaysia, Malaysia: Progress Under the Global Strategy Beyond Detention 2014-2019, Mid-2016, Aug. 2016, http://www.unhcr.org/57b587617 (hereinafter Malaysia: Progress Under the Global Strategy Beyond Detention).

[38] Id.

[39] UNHCR Malaysia, SUHAKAM-UNHCR Human Rights Workshop for Malaysian Immigration Officials, UNHCR: The UN Refugee Agency, Mar. 1, 2018, http://www.unhcr.org/news/latest/2018/3/5a9774214/suhakam-unhcr-human-rights-workshop-for-malaysian-immigration-officials.html (hereinafter SUHAKAM-UNHCR Human Rights Workshop for Malaysian Immigration Officials).

[40] Id.

[41] Id.

[42] Id.

[43] Malaysia: Progress Under the Global Strategy Beyond Detention, supra note 37.

[44] UNHCR Malaysia, supra note 9.

[45] Hui, supra note 7.

[46] Ananthalakshmi, supra note 28.

[47] UNHCR Malaysia, supra note 9.

[48] Goh, supra note 11.

[49] Id.

The Bid for Recognition: The Enduring Cost of Being Unrecognized

By: Megan Hall 

Kosovo is a tiny, landlocked country in the Balkan region of Europe, tucked between Serbia, Montenegro, Albania, and Macedonia. The Kosovo Assembly declared independence on February 17, 2008, and over 110 countries have recognized Kosovo as a country.[1] The International Court of Justice ruled this declaration to be legal in June 2010, leaving Serbia few avenues to dispute Kosovo’s independence.[2] However, it still seeks full international recognition and is still not a member of the United Nations or European Union.[3]

Kosovo is a small region, slightly larger than Delaware.[4] It is the second poorest country in Europe with a GDP of $10,400 in 2017.[5] The modern boundaries were established after World War II when Kosovo was an autonomous province of Serbia in Yugoslavia.[6] During its history since the Ottoman Empire, Kosovo has seen a lot of ethnic conflict. In the 7th century, ethnic Serbs moved into Kosovo, which then became the center of the Serbian Empire.[7] During the Ottoman Empire, a large number of Turks and Albanians moved into the region, and Albanians became the dominant ethnicity at the end of the 19th century.[8] Albanian nationalism increased during the 1980s, calling for Kosovo independence. In 1991, Albanian leaders called for Kosovo independence, which led to Serbian leaders taking repressive measures against Albanians during the 1990s.[9]

In 1998, Serbia launched a brutal campaign against the Albanians in Kosovo.[10] An estimated 300,000 Albanians were expelled from their homes by October 1998 by the Serbian Army.[11] A ceasefire between the Serbian Army and the Kosovo Liberation Army (KLA) occurred in October 1998.[12] Fighting renewed in the new year, and NATO forces became involved in March 1999.[13] After 78 days of airstrikes, the Serbian leader capitulated and withdrew, leaving a NATO Peacekeeping force in place.[14] Finally, in April 2013, Serbia and Kosovo signed the Brussels Agreement, the first agreement since the conflict to provide for a way to normalize relations between the two countries.[15] Still, Serbia refuses to recognize the country, and China and Russia back Serbian claims to the region.[16]

NATO has continued to have a presence in Kosovo with 355 personnel deployed as of March 2018.[17] The United Nations Security Council authorized the establishment of a civil presence in Kosovo in Resolution 1244 on June 10, 1999.[18] The international community recognized the ongoing human rights crisis in Kosovo and responded. However, much of Kosovo’s current malaise can be traced back to this crisis, as it was never properly resolved.

By the end of the conflict in June 1999, an estimated 4,400 people were missing.[19] The International Commission on Missing Persons has used DNA matching to identify those missing but around 1,700 people remain unidentified.[20] In Kosovo today, the youth unemployment hovers around 60% and the average age is 26.[21] The population of Kosovo is young and poor and stuck in a mire assisted by the lack of international recognition.

A country being recognized by other countries around the world means the country can actively take part in international law. Because it is not recognized by # countries, Kosovo is not a member of the European Union. Without membership, Kosovo citizens cannot freely move throughout the European Union. Thus, the borders are closed, and Kosovo youth are trapped in an economy with few opportunities. Other issues also persisted, like a lack of a postal system or SWIFT codes.[22] Kosovo lacked a postal service and relied upon Albania’s, which created issues with sending or receiving goods.[23] Similarly, Kosovo banks did not have SWIFT codes, making transferring money more difficult.[24] In 2017, Brookings estimated that the cost of the lack of recognition was the equivalent of a 14% tariff when trading with Kosovo, which is enormous.[25]

Serbia is also not a member of the European Union but has been told that it could join in 2025 provided it resolves its conflict with Kosovo and carries out some reforms at home.[26] Similar to Kosovo, Serbia is a small country, slightly smaller than North Carolina.[27] However, the Serbian economy has not suffered to the same degree as the Kosovo economy. Its GDP per capita was $15,200 in 2017, and its unemployment rate is around 16%.[28] Although this is relatively high, it is significantly lower than its neighbor’s rates.[29] Still, it too seeks full international recognition.

The resolution of the Serbian-Kosovo conflict and the official recognition of an independent Kosovo by the full international community would help move this region out of the mire it has wallowed in since the 1990s. Continuing non-recognition poses a large economic cost. Kosovo has a large youth population and not giving them the freedom to move within the European Union and find opportunities to work hinders the European Union as well as Kosovo. Recognition would likely boost trade, increasing opportunities for the entire region. Finally, official recognition might be enough to finally push to heal the wounds still festering from the ethnic conflict. The 1,700 people should be identified and the people who suffered through the War should be able to finally feel a sense of peace and hope in the region.

 

 

[1] Kosovo, Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/geos/kv.html (last accessed Apr. 23, 2018).  

[2] Peter Beaumont, Kosovo’s Independence is Legal, UN Court Rules, The Guardian, Jul. 22, 2010, https://www.theguardian.com/world/2010/jul/22/kosovo-independence-un-ruling.

[3] Kosovo, Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/geos/kv.html (last accessed Apr. 23, 2018).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Niel Tweedie, Kosovo War: Thousands Killed as Serb Forces Tried to Keep Control of Province, The Telegraph, Mar. 31, 2009, https://www.telegraph.co.uk/news/worldnews/europe/kosovo/5084374/Kosovo-War-Thousands-killed-as-Serb-forces-tried-to-keep-control-of-province.html.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Piotr Smolar, Serbia and Kosovo Sign Historic Agreement, The Guardian, Apr. 30, 2013, https://www.theguardian.com/world/2013/apr/30/serbia-kosovo-historic-agreement-brussels.

[16] The Associated Press, Kosovo Marks Progress, if not Universal Recognition, on 10th Anniversary, CNBC News, http://www.cbc.ca/news/world/kosovo-tenth-anniversary-celebrations-1.4540980.

[17] United Nations Peacekeeping, “UNMIK Fact Sheet” UN.org, https://peacekeeping.un.org/en/mission/unmik (last accessed Apr. 23, 2017).  

[18] S.C. Res. 1244 (June 10, 1999).  

[19] Kosovo, International Commission on Missing Persons, https://www.icmp.int/where-we-work/europe/western-balkans/kosovo/ (last accessed Apr. 23, 2017).

[20] Id.

[21] Kosovo, Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/geos/kv.html (last accessed Apr. 23, 2018).  

[22] Jieun Choi, The Costs of Not Being Recognized as a Country: The Case of Kosovo, Brookings, Nov. 16, 2017, https://www.brookings.edu/blog/future-development/2017/11/16/the-costs-of-not-being-recognized-as-a-country-the-case-of-kosovo/.

[23] Id.  

[24] Id.  

[25] Id.  

[26] Ivana Sekularac, Serbs Won’t Back Kosovo Recognition for EU Seat, President Warns, Reuters, Feb. 16, 2018, https://www.reuters.com/article/us-eu-balkans-serbia/serbs-wont-back-kosovo-recognition-for-eu-seat-president-warns-idUSKCN1G01I9.

[27] Kosovo, Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/geos/ri.html (last accessed Apr. 23, 2018).

[28] Id.

[29] Id.

India’s Maternity Benefit (Amendment) Act: Anticipating Clarification of the Crèche Clause

Sarah Faris 

Roughly a decade after the adoption of India’s Constitution in 1950, the nation implemented several pieces of legislature specifically geared towards promoting women’s participation in the workplace.[1] One such piece of legislation, entitled the Maternity Benefits Act of 1961, was revisited and amended just last year in March 2017.[2]   This amendment reflects an expansion of the rights of pregnant, working mothers and families with young children in general. 

The original 1961 version of the Maternity Benefits Act implemented paid leave for mothers.[3] Specifically, it provided mothers with twelve, fully paid weeks of leave, which could either all be used post-delivery or split up between pre and post delivery usage.[4]  The Act protected women from being fired while on maternity leave.[5] Even upon the expiration of leave, the Act included provisions favoring nursing mothers.  Until a child had reached the age of fifteen months, it was required that the mother be permitted two nursing breaks during the workday, in addition to the normally allotted breaks.[6]

The Maternity Benefit (Amendment) Act of 2017 builds upon these provisions.  The Act further extends the amount of paid leave time available to mothers, providing twenty-six weeks of paid maternity leave for new mothers.[7]  A mother of two or more, however, will still adhere to the twelve-week leave system that had previously been in place.  The same split-time opportunity from the 1961 version, allotting six weeks before and after birth, is still available to second time mothers.[8] First time mothers may use up to eight weeks of leave before birth, and eighteen weeks once the baby has arrived.[9] In addition to these accommodations for prepartum and postpartum mothers, provisions are set in place for mothers who have legally adopted babies as well.[10] If the child is younger than three months old when adopted, the new mother is allowed twelve weeks leave, starting at the time that the child is placed in their care.[11] 

Interestingly, rather than merely expanding the time frame of maternity leave, notable amendments also address childcare after leave has terminated.  For example, there is a new provision specifically allowing the mother and employer to negotiate additional terms of leave in situations where work can be completed from home.[12]  Perhaps most notable, however, is the new crèche facility requirement. 

Although the laws became effective as of July 1, 2017, logistical detailed requirements for the crèche facilities have yet to be released, but are expected November 2018.[13]  Until that time, however, existing crèche facility laws set in place by the Factories Act of 1948 are to be followed.[14] These include basic requirements, such as maintaining adequate ventilation and sanitation at the facility and ensuring that children receive care from trained childcare professionals.[15] Additionally, while the Factories Act recognizes crèche facilities as accommodating children up to the age of six, it is important to clarify whether or not this approach will be maintained.[16] 

There are, however, some major differences between the Factories Act provisions, and those provided for in the Maternity Benefit (Amendment) Act, which indicate some notable changes.  In an opinion piece by Gerald Manoharan and Sonakshi Das, these attorneys speak to the importance of providing uniform, streamlined guidelines for these facilities.[17]  They point out that the Factories Act of 1948 provided significant discretion to the States to determine the specifics for implementing facilities, within their localities and industries.[18] Specifically, the Act includes an entire subsection providing that the State Government may make specific rules concerning issues such as the location of facilities, standards for the rooms, provisions of refreshments, and feeding times.[19]   However, such state discretion is noticeably missing from the Amendment, and may prove to be difficult to implement until a uniform approach is spelled out.[20]

Accordingly, there are additional components to the amendment that should hopefully receive clarification in the upcoming months.  For one, the language of the amendment states that the location of the crèche facility must be within “such distance as prescribed,” for “every establishment having fifty or more employees.”[21]  This location requirement appears to be ambiguous as it is currently adopted.  

According to a June publication of The Tribune India, a senior official was quoted as having stated, “As of now, companies can take a leeway as we have not defined within what distance a crèche should be opened by an employer.  We are yet to bring that into the rules and then have to notify that in a couple months[.]”[22]  While this leeway perhaps allows employers some freedom in determining the best manner of implementing crèche facilities based on their specific situations, it seems that it will be important for them to be away of what types of restrictions may or may not be adopted before any serious planning is underway.  For example, if a company must purchase additional space nearby their facility to accommodate the needs of their employees, it would be vital to know the distance that is required prior to making such a purchase. 

Another key aspect of the language, as mentioned above, identifies that crèche facilities are to be maintained near any establishment that has fifty or more employees.  The use of the term “employees,” without the caveat of “female” or “mother,” suggest that the crèche facility would be a requirement whether mother or father are employed.[23]  This increases the scope of the law, recognizing the need for childcare as one that is not gender-defined, and the role of both parents as caretakers.  This is certainly a contrast from the language used in the Factories Act of 1948, where the crèche is to be provided only in factories where thirty women are regularly employed.[24]

This new legislation is an incredible step, then, in addressing the needs of childcare for working families.  However, it appears that there is some concern as to the manner in which the crèche facilities will be implemented.  Whereas previously there was local discretion provided as to the specific logistics of the facilities, this new amendment appears to be an attempt at a more universal method.  With that in mind, then, the language of the upcoming specifications will be important for determining how well this can truly be implemented. 

 

 

[1] Ujvala Rajadhyaksha & Swati Smita, Tracing a Timeline for Work and Family Research in India, Economic and Political Weekly, 1674-80, 1675, (Apr. 24, 2004). 

[2] Raavi Birbal, Creche Clause in Maternity Act Depends on Execution, New Indian Express (May 27, 2017), http://www.newindianexpress.com/magazine/voices/2017/may/27/creche-clause-in-maternity-act-depends-on-execution-1609118--1.html.

[3] Supra Rajadhyaskha, note 1 at 1675. 

[4] Id.

[5] Id.

[6] Id. 

[7] Matt Turner & Anushree Singh, Here’s how Much Paid Leave New Mothers and Father get in 11 Different Countries, Business Insider (Sept. 7, 2017), http://www.businessinsider.com/maternity-leave-worldwide-2017-8/#australia-there-is-a-legal-requirement-to-provide-12-months-maternity-leave-1.

[8] Id. 

[9] Id.

[10] The Maternity Benefit (Amendment) Act, 2017, Gazette of India, pt. II, sec. 1 (Mar. 28, 2017) http://www.egazette.nic.in.

[11] Id. 

[12] Id. 

[13] S.S. Rana & Co. Associates, India: Creche Facility Under Maternity Benefit Amendment Act, 2017, mondaq (Jan. 29, 2018) http://www.mondaq.com/india/x/668308/Employee+Benefits+Compensation/Creche+Facility+Under+Maternity+Benefit+Amendment+Act+2017.

[14] Id.   

[15] Id. 

[16] Anushree Sharma, All you Need to Know about the Crèche Facility Provision, People Matters (May 30, 2017) https://www.peoplematters.in/article/hr-ready/all-you-need-to-know-about-the-creche-facility-provision-15571?utm_source=peoplematters&utm_medium=interstitial&utm_campaign=learnings-of-the-day.

[17] Gerald Manoharan & Sonakshi Das, Crèche is not Kid’s Play: Bridging Gaps- Crèche Facility Under the Maternity Benefit (Amendment) Act, 2017,  Live Law.In (June 22, 2017), http://www.livelaw.in/creche-not-kids-play-bridging-gaps-creche-facility-maternity-benefit-amendment-act-2017/.

[18] Id. 

[19] Factories Act, 1948, No. 63, Act of Parliament (1948, sec. 48, http://www.liiofindia.org/in/legis/cen/num_act/fa1948108/.

[20] Supra Manoharan & Das, note 14. 

[21] The Maternity Benefit (Amendment) Act, 2017, Gazette of India, pt. II, sec. 1 (Mar. 28, 2017) http://www.egazette.nic.in.

[22] Creche May Soon be a Must in Offices with 50 Employees, Tribune India (July 17, 2017) http://www.tribuneindia.com/news/nation/creche-may-soon-be-a-must-in-offices-with-50-employees/437979.html.

[23] Supra Sharma, note 13. 

[24] Factories Act, 1948, No. 63, Act of Parliament (1948, sec. 48, http://www.liiofindia.org/in/legis/cen/num_act/fa1948108/.