Pregnant and Forbidden the Right to Education, A Growing Problem in Tanzania

By Ashley Solo

Pregnant and alone, young girls in Tanzania are unable to finish their public-school education upon becoming pregnant.[1] Whether this is truly the most effective way to curb teenage pregnancy remains. Would different policies such as including mandatory sexual education in all Tanzanian schools or holding young men accountable for their actions help?

Tanzanian schools expel about 8,000 pregnant girls a year.[2] While this practice started several decades ago, it has recently intensified since President John Magufuli took office in 2015.[3] President Magufuli cites a “vaguely worded law from the 60s” in support of this ban.[4] The country uses a “morality clause” from a 2002 education law to grant schools the legal framework needed to expel the students, which dates back to the 60s.[5] Not only are these pregnant girls expelled from school, but under President Magufuli, these girls are forbidden from ever returning.[6]

Some schools monitor their female students by conducting compulsory pregnancy tests.[7] At Arusha Secondary School in Tanzania, 800 girls take these pregnancy tests twice a year, “failure for them, it’s not an option.”[8] One student, Careen Temba, said “getting pregnant means the end of everything. In our school, when you get pregnant, you’re sent off. It feels like all your dreams are shattered down.”[9] President Magufuli claims that this directive is used to help limit teen pregnancy.[10] In addition to urinating in a jar, the teachers at the Moshono Secondary School in Arusha inspect the students by touching the girls’ stomachs.[11] One girl, upon admitting she was pregnant, was immediately expelled.[12]

At a public rally, President Magufuli stated, “she has chosen that kind of life. Let her go take care of the child.”[13] Under his administration, pregnant girls will not be allowed to return to school, which is directly adverse to previous government efforts to allow re-entry for teenage mothers.[14] President Magufuli’s speech effectively removed any discretion that schools had in choosing to enforce the morality rule.[15] Despite President Magufuli’s contentions otherwise, many women do not really choose this life at all; Tanzania has high rates of child marriage and sexual violence.[16] Thus, many girls are prevented from an education for reasons out of their control.[17] Especially problematic, 17% of women in Tanzania have experienced sexual violence.[18] Further, 27% of girls in Tanzania between the ages of 15-19 are mothers or pregnant.[19] Further, 37% of women aged 20-24 were married before they even turned 18.[20] According to the United Nations, Tanzania has one of the highest adolescent pregnancy rates in the world and many girls exchange sex for food and shelter or for school fees.[21] These numbers indicate the vast number of girls affected by these stringent laws and the widespread problem of girls having sex, sometimes non-consensually.

The US-based Center for Reproductive Rights, reports that in Tanzania between 2003 and 2011, at least 8,000 girls a year have dropped out of school for becoming pregnant.[22] Not only are the expelled, but some girls even face hostility from their families. When one girl failed a pregnancy test, the school called her father, who said “let her die with the pregnancy.”[23] She now lives at a center for “vulnerable women” with her son and is studying to become a tailor, because her dreams of becoming a soldier were ripped away from here.[24] As a quarter of Tanzanian women will give birth before the age of twenty; thousands of women are prevented from completing their education every year.[25]

A majority of Tanzanians do not agree with the government’s crackdown. A 2016 study showed that over 60% of Tanzanians supported re-entry to schools for girls who had given birth, but yet most thought it was “better not to get pregnant at all,” which is why schools are becoming more strict.[26] Many female students believe that these mandatory tests are good and a way to protect them, viewing these tests as a “normal” part of their education.[27] Anna Ulimboka, the nurse, who oversees the testing at the Arusha Secondary School, also believes that these tests are good.[28] She explained that before these tests were given, girls would get pregnant over the holiday, but now that they are aware these tests will be conducted, girls “avoid relationships with boys.”[29] She said that pregnant girls are bad examples to other girls, as others will think if they too “mess up,” they shall be allowed to return to school.[30] Conversely, as Shilinde Ngalula, a Tanzanian Legal and Human Rights Centre lawyer said, this expulsion policy violates the country’s constitution, which includes a right to education.[31] Furthermore, he says girls are being punished without consideration of how she got pregnant, and thus, the possibility of rape is being ignored.[32]

The methods to inform young girls about the possibility of unwanted pregnancy is limited throughout the country. Most schools rely on mandatory pregnancy tests to scare girls, rather than to teach them how to prevent pregnancy in the first place.[33] Standalone sex education is not apart of the national curriculum; thus, many girls do not realize having sex can lead to becoming pregnant.[34] Further, in September 2018, President Magufuli told women to cease using contraceptives and called people using birth control “lazy.”[35] Additionally, the government has suspended family planning advertisements on both the radio and TV stations throughout the country.[36]

Perhaps surprisingly, girls are not the only ones to pay for these pregnancies, but the policies in place, likely do not go far enough. Men and boys who impregnate school girls can face prison sentences up to 30 years.[37] However, girls have also been arrested for failing to disclose the identity of the men who impregnated them.[38] Additionally, while girls are permanently limited from fulfilling their life-long dreams, men seem to get a second chance in regard to sex crimes.[39] In December 2017, Magufuli pardoned two men who were convicted of raping 10 primary school children between the ages of six and eight, after serving only 13 years of their sentences.[40] As these men were released, a Tanzanian government official “called for pregnant pupils to be taken into custody,” to testify in court as to who impregnated them.[41] This led critics to point out the hypocrisy of the President’s actions.[42] As the director of Community for Children’s Rights in Tanzania explained, often, rape cases are resolved within families, and it was surprising that these two men were even jailed in the first place.[43]

In January 2018, five schoolgirls between the ages of 16 and 19 were arrested for being pregnant, before being released on bail.[44] Many critics, including the Center for Reproductive Rights, called for the men to be arrested instead.[45] In December 2017, Sebastian Waryuba, Tandahimba’s district commissioner ordered the arrests of 55 girls who had given birth over the previous two years and their parents, as a way to deter others from getting pregnant and to “serve as a lesson to parents to stop their children engaging in ‘reckless’ sexual relationships.”[46] Another official said that the men who impregnated the students would be charged with rape, as the girls were minors and the law in the country is “clear that sex with someone below the age of 18 is rape.”[47] Despite moves to hold boys and men accountable for their actions, young girls are the ones suffering the most. 

Advocates argue that laws preventing pregnant girls and young mothers the right to study in public schools violate human rights treaties, which Tanzania has signed.[48] Some critics have the power to majorly affect Tanzania. For example, The World Bank withdrew a $300 million loan to Tanzania due to the policy expelling pregnant school girls.[49] Denmark, the country’s second-largest donor also withheld funding due to human rights abuses within the country.[50] With the world watching, Tanzania must decide whether the possibility of lowering the teen birth rate is worth pushing through with legislation that adversely affects women in its country, especially if its goals could be more effectively reached another way.


[1] Karen McVeigh, World Bank Pulls $300m Tanzania Loan Over Pregnant Schoolgirl Ban, The Guardian (Nov. 15, 2018), https://www.theguardian.com/global-development/2018/nov/15/world-bank-pulls-300m-tanzania-loan-over-pregnant-schoolgirl-ban.

[2] Id.

[3] Id.

[4] School Pregnancy Tests are Mandatory Here, CNN (Oct. 10, 2018), https://www.cnn.com/videos/health/2018/10/10/as-equals-tanzania-school-pregnancy-test-jlm-lon-orig.cnn/video/playlists/mobile-digital-features/.

[5] Ivana Kottasová, They Failed Mandatory Pregnancy Tests at School. Then they were Expelled, CNN (Oct. 11, 2018), https://www.cnn.com/2018/10/11/health/tanzania-pregnancy-test-asequals-intl/index.html.

[6] Id.

[7] McVeigh, World Bank supra note 1. CNN noted that at least six different schools in the country rely on these mandatory tests. Kottasová, supra note 5.

[8] School Pregnancy Tests are Mandatory Here, supra note 4.

[9] Id.

[10] Id.

[11] Kottasová, supra note 5.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] School Pregnancy Tests are Mandatory Here, supra note 4.

[17] Id.

[18] Kottasová, supra note 5. Further, the birth rate is 5.2 children per woman in Tanzania.

[19] Id.

[20] Id.

[21] Kizito Makoye, Nita Bhalla, Tanzania Slammed for ‘Misguided’ Arrest of Pregnant Schoolgirls, (Jan. 10, 2018), https://www.reuters.com/article/us-tanzania-schoolgirls-arrests/tanzania-slammed-for-misguided-arrest-of-pregnant-schoolgirls-idUSKBN1EZ2C2.

[22] School Pregnancy Tests are Mandatory Here, supra note 4. The Center for Reproductive Rights is an US-based international advocacy group. Kottasová, supra note 5. 

[23] School Pregnancy Tests are Mandatory Here, supra note 4.

[24] Id.

[25] Id.

[26] Id.

[27] Kottasová, supra note 5.

[28] Id.

[29] Id.

[30] Id. Though these mothers are unable to return to public school, they still have the opportunity to attend private school for about $800 a year after finding a sponsor or they may attend one of the few NGO-funded schools in Tanzania; likely, an unrealistic option for many.

[31] Id.

[32] Id.

[33] School Pregnancy Tests are Mandatory Here, supra note 4.

[34] Kottasová, supra note 5.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Karen McVeigh, Tanzania Pardon Two Child Rapists and Calls for Arrest of Pregnant Schoolgirls, The Guardian (Dec. 13, 2017), https://www.theguardian.com/global-development/2017/dec/13/tanzania-pardons-two-child-rapists-arrest-pregnant-schoolgirls-president-magufuli.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Makoye, supra note 21.

[45] Id.

[46] Id.

[47] Id.

[48] Kottasová, supra note 5. Equatorial Guinea and Sierra Leone have similar laws, despite also signing human rights treaties.

[49] McVeigh, World Bank, supra note 1.

[50] Id.

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.