Apr 21, 2016 | Op-Ed, Recent Developments
By Jisan Kim*
This year, the Asian Infrastructure Investment Bank (“AIIB”) will officially initiate its operations with $100 billion of capital. The AIIB aims to fund much-needed basic infrastructure projects in Asia, and it seeks to differentiate itself from existing multilateral development banks (“MDBs”) like the World Bank by not requiring privatization or deregulation as conditions for funding.
Some experts project that the AIIB will merely be a “symbolic institution with no real significance for the global financial system.” However, China has brought on board major U.S. allies, including France and the United Kingdom, as founding members of the new Bank. On the other hand, the United States and Japan, the largest shareholders of the World Bank and the Asian Development Bank respectively, declined to join the AIIB. The two countries likely view the new China-led Bank as “a lending rival that will reduce [their] leverage,” and they do not want to grant more power and credibility to the AIIB by joining it.
Even without the United States and Japan as members, the AIIB will have a significant impact on Asia and the world. However, whether that impact will be positive or negative is under debate. Although the AIIB will help fill the “massive infrastructure funding gap” in Asia, it may fund projects that do not meet the high international standards enforced by existing MDBs. If the AIIB does not operate under adequate standards, its projects may have negative consequences in many areas, including environment protection, human rights, and labor rights. China claims that the AIIB “will be rigorous in adopting the best practices of institutions such as the World Bank.” But critics are wary of this claim, given China’s track record with international standards.
No one can be certain until the new Bank decides which projects it will fund, but an assessment of the AIIB’s Operational Policies may shed some light on the direction toward which the AIIB is headed. Because the structure and function of the AIIB is similar to that of the International Finance Corporation (“IFC”), the private sector arm of the World Bank, the IFC Performance Standards on Environmental and Social Sustainability (“IFC Standards”) are the appropriate benchmark to evaluate the adequacy of the AIIB Environmental and Social Standards (“AIIB Standards”). Many parts of the AIIB Operational Policies mirror the text of the IFC Standards. But notable differences exist, and they may lead to distinct outcomes in practice. This feature will discuss some of the provisions pertaining to environmental and labor issues.
I. Environmental Standards
Many environmental provisions of the AIIB Standards are on par with that of the IFC Standards. For instance, in its pollution prevention section, the AIIB cites the World Bank Group’s Environmental, Health and Safety Guidelines (“EHSGs”) and ensures that its projects will follow the EHSGs. The AIIB in some areas (e.g. commercial logging operations) adopted “more progressive positions” than some of the other multilateral development banks. However, in other areas, AIIB Standards lack detail or are different in ways that may lead to arbitrary outcomes. The following are a few examples.
The IFC provides a detailed explanation on how adverse effects on the environment should be mitigated. Concepts such as “no net loss of biodiversity” and “set-asides” make the guidelines more specific and clear. On the other hand, the AIIB leaves out such details and simply requires “measures acceptable to the Bank.” Under this standard, if the AIIB is not rigorous in its evaluation of mitigation measures, recipients of funding may be able to get away with implementing measures that are superficial, cheap, and ineffective.
For projects in natural habitats, the AIIB requires a cost-benefit analysis whereas the IFC has no such requirement. Because the IFC does not have this requirement, the IFC may allow projects even if the overall benefit does not “substantially outweigh” environmental costs. However, cost-benefit analysis will not always lead to wise decisions. For example, the AIIB may allow projects that significantly destroy natural habitats by concluding that the overall benefit is higher than the cost. Also, because it is unclear how the AIIB will conduct cost-benefit analyses, the ultimate decision could be arbitrary. The cost-benefit analysis might be used to justify or defend AIIB’s decisions to value economic gain over environmental protection.
When critical habitats are involved, the IFC considers a project’s impact on “biodiversity values for which the critical habitat was designated” and the “ecological processes” supporting those values, whereas the AIIB focuses on the habitat’s “ability to function.” The IFC would not allow a project that would destroy biodiversity values, even if the habitat were able to function. On the other hand, the AIIB may allow a project by determining that a habitat may be able to function even if many of its biodiversity values are lost.
II. Labor Standards
The Core Labor Standards (“CLS”), which refer to a group of eight fundamental labor conventions, are regarded as the “international consensus on minimum best practices.” The CLS covers four general rights and principles of labor: child labor, forced labor, freedom of association and collective bargaining, and discrimination in employment and occupation. This feature will proceed to look at how the AIIB and IFC treat the four general issues of labor.
A. Child Labor
The Minimum Age Convention and the Worst Forms of Child Labour Convention (“Worst Forms Convention”) are the two “basic child labour Conventions” of the International Labor Organization (“ILO”). And complementing the two Conventions, the United Nations Convention on the Rights of the Child (“UNCRC”) “lays down a full range of children’s rights.”
The IFC Standards cover issues raised in all three of the instruments mentioned above. The opening sentence of the child labor section closely mirrors the language of Article 32 of the UNCRC:
“The client will not employ children in any manner that is economically exploitative, or is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral, or social development.” (para. 21, IFC Standards)
The following two IFC clauses on hazardous work incorporate language from the Worst Forms Convention and its supplemental Recommendation No. 190:
“Children under the age of 18 will not be employed in hazardous work.” (para. 21, IFC Standards)
“Examples of hazardous work activities include work (i) with exposure to physical, psychological, or sexual abuse; (ii) underground, underwater, working at heights, or in confined spaces; (iii) with dangerous machinery, equipment, or tools, or involving handling of heavy loads; (iv) in unhealthy environments exposing the worker to hazardous substances, agents, processes, temperatures, noise, or vibration damaging to health; or (v) under difficult conditions such as long hours, late night, or confinement by employer.” (n. 12, IFC Standards)
Unlike the IFC Standards described above, the AIIB Standards seem to be focused on only the Minimum Age Convention:
“[I]n conformity with the International Labour Organization’s Minimum Age Convention, 1973, [] children at least 16 years of age may be employed for such work on condition that their health, safety and morals are fully protected.” (sec. D, AIIB Standards)
The Worst Forms Convention and the UNCRC do not appear in the AIIB Standards. The two Conventions may seem superfluous, but they each play an important role.
Several scholars have voiced concern that the Minimum Age Convention, standing alone, may fail to achieve its objective. The Minimum Age Convention requires that specific industries, such as mining and electricity, should be regulated as a minimum. If only some industries are regulated, the supply of child labor could move into other unregulated sectors. The Worst Forms Convention does not have this loophole because it lists the types of hazardous work that should be prohibited, regardless of industry.
Although the two Conventions together seem to grant full protection, another loophole still exists. Children between the age of 16 to 18 will be allowed to work as long as their “health, safety and morals . . . are fully protected” (Minimum Age Convention) and the work is not categorized as “worst forms of child labor” (Worst Forms Convention). Without the protection offered by the UNCRC, these children are simply treated as “regular workers” under the two ILO Conventions. But because the IFC Standards incorporate language from the UNCRC, the IFC additionally protects the “education” and “health or physical, mental, spiritual, moral, or social development” (UNCRC) of these child workers. The AIIB Standards, on the other hand, offers no such protection.
The IFC, by embracing all three Conventions, provides a stronger protection for children than does the AIIB.
B. Forced Labor
The AIIB provides the same level of protection as the IFC when it comes to forced labor. The AIIB explicitly prohibits forced labor, which it defines as “work or service not voluntarily performed that is exacted from an individual under threat of force or penalty.” This language is similar to the IFC Standards on the subject. Additional details are substantially the same as well.
C. Freedom of Association and Collective Bargaining
As for collective bargaining, the AIIB requires that clients adhere only to national laws in the countries where they operate, while the IFC attempts to offer further protection. When “national law substantially restricts workers’ organizations,” the IFC prohibits employers from “[restricting] workers from developing alternative mechanisms to . . . protect their rights” and “[influencing] or [controlling] these mechanisms.” IFC also protects participants in workers’ organizations from discrimination, retaliation, or discouragement by employers.
The AIIB, however, urges clients only to “[comply] with national law relating to workers’ organizations and collective bargaining” and does not attempt to provide any further protection on this matter.
D. Discrimination
The AIIB’s provision against discrimination is limited: employers should ensure, “consistent with relevant national law, employment on the basis of the principle of equal opportunity, fair treatment and non-discrimination.” The AIIB does not provide any additional detail or explanation.
The IFC Standards, on the other hand, includes important details in addition to enumerating the basic principles of equal opportunity, fair treatment, and non-discrimination. The IFC prohibits “employment decisions on the basis of personal characteristics (Such as gender, race, nationality, ethnic, social and indigenous origin, religion or belief, disability, age, or sexual orientation)” and “harassment, intimidation, and/or exploitation.” The IFC Standards also emphasizes that women and migrant workers should be well-protected.
E. Additional Considerations
While the IFC’s labor standards cover both the public and private sector, the AIIB Standards do not offer protection of many important rights—including prompt payment, access to grievance mechanisms, equal opportunity, fair treatment, and non-discrimination—to public sector workers. In the third paragraph of Section D, the AIIB Standards requires employers to protect those rights only for “private sector Projects.”
The IFC, unlike the AIIB, provides additional protection regarding retrenchment and compensation. IFC demands “retrenchment [] based on the principle of non-discrimination and will reflect the client’s consultation with workers” and insists the payment of any outstanding back pay or benefits. The AIIB, mostly silent on this matter, mandates only a “timely” notice of termination.
The AIIB follows many of the high standards set by the IFC and other international organizations. However, in several important areas, AIIB Standards do not offer sufficient environmental and social protection. These shortcomings could become more problematic if coupled with ineffective implementation.
III. Implementation and Oversight
The recently elected President of the AIIB promised that the new Bank would be “lean, green, and clean.” Although a lean bank will reduce costs, it may have trouble operating effectively. Without “a resident staff involved in the day-to-day project oversight,” some critics doubt that the new Bank would be able to successfully enforce high standards.
In order to implement its labor standards, the IFC went through an intensive implementation process: hiring labor experts, establishing a Labor Advisory Group, providing specific training for thousands of staff, and conducting comprehensive labor audits and internal reviews. In fact, IFC is considered to have “one of the most comprehensive procedural frameworks” for implementing labor standards. But even with such effort, the IFC was not aware of violations in some on-going projects until other organizations reported them.
The ILO emphasizes that “legal prohibition, essential though it is, will not by itself suffice.” Especially in regulating child labor, inadequate implementation and oversight may lead to disastrous consequences. Prohibiting child labor may “[foster] illegal and hidden forms of [child] employment.” And without proper oversight, child labor will proliferate in the shadows. The AIIB must ensure that its operations are not only “lean” but also effective in protecting fundamental values.
IV. Going Forward
While basic environmental and social values should not be sacrificed for economic growth, rules and procedures have a tendency to become cumbersome. A former World Bank Director commented that many standards and procedures of existing MDBs are “frustratingly bureaucratic, costly and ill-suited to dealing with the real needs of client borrowers.” Improving rules and procedures to be more efficient does not necessarily lead to lower standards. The key is to find the right balance between efficiency and comprehensiveness.
The AIIB expressed its commitment to adopt the “highest possible standards.” Although the AIIB has much room for improvement, its efforts show that the new Bank has the potential to become an institution that sets, rather than follows, international standards.
* Jisan Kim is a 2017 J.D. candidate at Harvard Law School and an Executive Editor of the Harvard International Law Journal.
Apr 1, 2016 | Content, Op-Ed, Recent Developments, Student Features
By Josh Macfarlane
Tango 01—Argentina’s equivalent to Air Force One—hasn’t gotten much air time recently. The plane was grounded in 2013 by the country’s former President Cristina Kirchner, who was allegedly afraid that foreign creditors would seize the jet. Ms. Kirchner’s fears were not unfounded considering the country twice defaulted on its sovereign debt repayments and had failed to settle with its holdout creditors. The turbulence over the Tango 01 is one of the many consequences of Argentina’s prolonged debt crisis, a hallmark of Ms. Kirchner’s presidency. Earlier this year Tango 01 was retired by President Mauricio Macri, Ms. Kirchner’s successor, who has eschewed Ms. Kirchner’s intransigence in dealing with foreign holdouts in favor of a more conciliatory approach. This change of tact has largely paid off. But considering it has taken 15 years to resolve, one must ask: Could this mess not have been sorted out earlier? Maybe, had Argentina’s sovereign bonds included a novel contract provision known as a Collective Action Clause (CAC).
CACs are increasingly lauded as the ex-ante remedy to sovereigns on the precipice of default, as they facilitate meaningful debt restructuring. They are essentially contractual provisions that allow bond issuers to modify key terms of the bond at a later date, most commonly in the form of “haircuts,” which are reductions in the bond’s original value. Assuming a supermajority of bondholders agrees to the modified terms (because something is better than nothing), they become binding on all bondholders. This overcomes holdout problems where one recalcitrant bondholder is free to reject new terms and demand repayment in full (plus interest). In the case of Argentina’s bonds, which, notably, did not include a CAC, a U.S. federal judge ruled that the country could not pay interest on the restructured bonds until it settled with the holdouts; Ms. Kirchner’s failure to do so led to perpetuating default. (Note: Argentina’s bonds were issued under New York law, hence U.S. jurisdiction applied.) This legal precedent not only hurts the sovereign debtor by excluding it from international capital markets, but it also harms the supermajority of creditors who are enjoined from collecting interest and principal payments on their bonds. CACs are of particular importance in the aftermath of this ruling, as in their absence, a single bondholder can wreak havoc on debtors and fellow creditors.
The world has taken note as Argentina, Greece, and others have defaulted on bond payments with severe consequences. CACs have readily been adopted as the preventative remedy, becoming must-have provisions in sovereign debt offerings. Mexico was an early harbinger when, in 2003, it included an early CAC iteration in its sovereign bond offering. More recently, the EU mandated in 2012 that all Eurozone sovereign bonds must include standardized CAC provisions, lest the leaders of Europe be forced to fly commercial like Ms. Kirchner.
So, are CACs the panacea that debtors and creditors have been waiting for? Not necessarily. For debtors, CACs only offer a prospective benefit as they cannot be introduced retroactively. Hence, sovereigns with outstanding issuances remain liable to potential holdouts, e.g., Argentina. In future bond offerings, where CACs can be included, debtors on the verge of default must nevertheless persuade a supermajority of bondholders to assent to the restructured terms. This poses substantive and logistical problems. First, haircuts can’t be too drastic otherwise creditors will not agree to them. Second, bonds are issued across borders and in different currencies, which can create communication problems – apathetic bondholders may simply not reply to a foreign debtor’s solicitations. In such instances, bondholder silence may be misconstrued by the debtor as a demurral, which might result in the debtor either ignoring these bondholders or considering them to be holdouts and offering them unnecessarily favorable terms.
As for bondholders, some undeniably feel that that CACs swing the pendulum too far in the opposite direction, stripping them of their right to demand payment in full and, assuming supermajority approval, foisting new terms on them. One might expect this to be offset by higher bond yields because of the heightened risk that creditors assume; however, empirical evidence suggests otherwise. Some creditors, notably those who already agreed to the restructured terms, will be pleased that fellow bondholders cannot secure a better deal by simply digging in their heels. Look at Argentina, where the absence of a CAC resulted in some creditors incurring haircuts of around 70% compared to the holdouts’ 25%. Also, bondholders who are citizens of the issuing sovereign, and who are normally more inclined to agree to haircuts, like the fact that CACs prevent foreign holdouts from dragging their country into default.
While CACs are not perfect, they provide the best solution in the absence of international law governing sovereign default (a much talked about topic, but a seemingly impossible endeavor). Granted, CACs are utilitarian in nature, and the greater good seems to be allowing a country to restructure its debt, subject to supermajority approval, by depriving would-be holdouts the ability to derail the process and instigate economic turmoil. Moreover, CACs give sovereigns the tools to resolve their own debt crises, , making them less reliant on the International Monetary Fund – which often provides bailout funds in exchange for the adoption of damaging austerity measures.
Expect CACs to continue growing in popularity until they became integral provisions in all sovereign debt offerings. Perhaps Mr. Macri’s successors will be able to bring Tango 01 out of retirement, but in the meantime, he’s flying coach.
Josh Macfarlane is a 2017 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal.
Nov 9, 2015 | Content, Recent Developments, Student Commentaries, Student Features
By Christopher Mirasola
October was not a good month for China in the South China Sea. The United States Navy sent a guided missile destroyer on a freedom of navigation exercise to assert that artificial islands are not entitled to a 12 nautical mile territorial sea. Despite strong protests from Beijing, the exercise was unsurprising. Washington had been hinting for weeks at a stronger response to China’s maritime claims. Far more surprising was a decision only three days later from the Permanent Court of Arbitration (PCA) in which the Court unanimously decided to hear all fifteen claims against China’s policy in the South China Sea.
Background
In January 2013 the Philippines invoked Article 287 of the U.N. Convention on the Law of the Sea (UNCLOS) to challenge China’s claims to a majority of the South China Sea.
Source: What’s China’s basis of the 9-dash line? Quora https://www.quora.com/Whats-Chinas-basis-of-the-9-dash-line
As stipulated by Article 287, an ad-hoc tribunal at the Permanent Court of Arbitration was convened and invited both parties to submit briefs based on the Philippines’ statement of claim. China, however, refused to recognize the PCA’s authority and opted out of the Court’s formal proceedings. After hearings that closed this past July, the PCA had to decide whether UNCLOS gave it the authority to adjudicate the Philippines’ claims against China.
Broadly speaking, the Philippines has three claims. First, it argues that the nine-dash-line is contrary to UNCLOS provisions, which should be the only basis for maritime sovereignty and jurisdiction. Second, it asserts that a number of contested maritime formations (i.e., reefs) are not entitled to a 200 nautical mile exclusive economic zone or the adjoining continental shelf. Third, it contends that China’s law enforcement and fisheries behavior in the South China Sea is contrary to UNCLOS obligations and interferes with Philippine sovereignty. Of course even if the Philippines won on all these claims, the PCA cannot settle which country is sovereign over islands in the South China Sea. But even if we assume that China has uncontested sovereignty to all properly defined islands, a decision favorable to the Philippines would leave China with far less jurisdiction than it currently claims under the nine-dash line.
Source: Award on Jurisdiction and Admissibility (Phil. v. China), 51 (Per. Ct. Arb. 2015) http://www.pcacases.com/web/sendAttach/1506
The Court’s Decision
We can decompose the PCA’s analysis into three parts.
The arbitration was convened correctly
The Philippines was justified in calling an ad-hoc tribunal since neither country opted for a specific type of dispute resolution when they adopted UNCLOS. The Court also found that China’s non-participation did not impact the PCA’s jurisdiction because Annex VII Art. 9 states that, “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” They also cited ways in which the PCA protected China’s rights, including repeated invitations to comment on procedural steps, advance notice for hearings, transcripts, and an invitation to join formally at any stage. The Court similarly argued that Vietnam’s non-participation didn’t impact the PCA’s jurisdiction despite the fact that it has rival claims to the same region.
The Court’s most stinging rebuke of China’s non-participation, however, was to adopt a weaker standard for whether the Philippines abused process in requesting this arbitration. The PCA defined ‘abuse of process’ as “blatant cases of abuse or harassment” because China did not request a more rigorous test under Article 294. By adopting such a weak standard it was much more likely that the Philippines would win on this particular jurisdictional argument. While we cannot be sure that a more stringent standard would have changed the Court’s decision, China certainly lost an opportunity to more substantially protect its interests.
Past agreements between China and the Philippines do not affect whether the PCA can adjudicate this dispute
The PCA focuses on three agreements signed by both countries: (1) the 2002 Declaration on the Conduct of Parties in the South China Sea (an agreement between all ASEAN countries and China to lessen regional tensions by working towards a joint code of conduct), (2) Joint China/Philippines statements to find a peaceable solution, and (3) the 1976 Treaty of Amity and Cooperation in Southeast Asia (an agreement to settle differences by peaceful and cooperative means). China argued that these documents precluded the Philippines from starting arbitration under Art. 281 and 282. The PCA, however, found that each of these documents (1) didn’t represent a settlement between both parties, (2) didn’t exclude other dispute resolution mechanisms, and (3) don’t require that the parties indefinitely pursue unsuccessful negotiations.
The PCA does not necessarily have definite jurisdiction over all fifteen Philippine claims
And this is where the story gets interesting. The PCA found that it has definite jurisdiction on seven claims, reserved judgment on another seven claims, and asked for clarification on a final claim. In short, it found that seven of the claims presented issues where the jurisdictional and substantive questions were too closely connected to make a preliminary decision.
Implications
The PCA dealt China a substantial blow in its bid to solidify control within the nine-dash-line, but it is far too early for the Philippines to pop the bubbly. The Court will now hold additional hearings, decide if it has jurisdiction for the seven reserved claims and render a decision. This puts China in a bind if it continues to boycott the proceedings since it will again run the risk of loosing input on pivotal legal questions. More problematic is that China has never articulated a robust legal defense for its historic claims in the South China Sea. There will be less material the judges can use to independently construct a likely Chinese response to Philippine arguments. Without a robust defense, it seems more likely that China’s historic claims may fail to convince the Tribunal.
We must, however, recognize the limits of even this most pro-Philippines scenario. The Court will not resolve territorial disputes to contested islands like Itu Aba (currently garrisoned by Taiwanese forces). It will not resolve boundary conflicts between overlapping Exclusive Economic Zones and territorial seas. Given China’s official pronouncements, it also will not change the ongoing increase in Chinese construction and presence in the short-term.
But we can begin to ask how this decision may start to change the playing field for Southeast Asian countries that dispute China’s claims. Whether it might catalyze more coordination between countries that have been deeply divided about how to balance regional strategic concerns with the reality of economic dependence on Beijing. Though only halfway through this arbitration, we may already be witnessing the start of a much different chapter in the South China Sea.
Christopher Mirasola is a 2018 J.D./M.P.P. candidate at Harvard Law School and Harvard Kennedy School. He is an Executive Symposium Editor of the Harvard International Law Journal.
May 19, 2013 | Recent Developments, Student Commentaries, Student Features
“This Note aims to use the Viewfinder decision as a starting point to consider more broadly the enforcement of foreign copyright judgments. It will caution against the temptation to summarily refuse to enforce foreign copyright judgment as inherently incompatible with the First Amendment. This Note will argue that the Second Circuit was correct in evaluating the foreign copyright judgment in conjunction with American copyright law, rather than solely through the lens of the First Amendment. Foreign copyright decisions, governed under their own intellectual property legal frameworks, should not go through the same analysis as libel and hate speech decisions, which fall at the center of First Amendment protections. Domestic copyright laws already include built-in protections, such as the doctrine of fair use, to ensure that First Amendment values are preserved. Courts should thus evaluate foreign copyright judgments by comparing the protections provided by the foreign countries’ intellectual property frameworks to domestic intellectual property laws.
“Current scholarship on the enforcement of foreign copyright decisions, including the Viewfinder decision, is limited. Some scholars have written on the enforcement of foreign judgments, looking more broadly at First Amendment implications, but none have focused on copyright cases in the aftermath of Viewfinder. This lacuna is unfortunate, because it suggests that foreign copyright judgments do not merit their own analysis, but rather fall within the same category as other foreign judgments implicating the First Amendment. Indeed, scholars writing on the subject of foreign judgments have treated the Viewfinder case as just another example of domestic courts addressing the First Amendment’s effect on foreign judgments. As this Note suggests, this analysis is flawed, because several reasons, including the increasing harmonization of intellectual property laws across countries, militate in favor of the enforcement of foreign copyright judgments that do not apply to the other foreign cases implicating the First Amendment which have come before courts. Furthermore, Viewfinder highlights the complexity of applying the First Amendment in the age of the internet, where speech is no longer territorially bound and content emanating from one country often reaches a global audience.”
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Oct 12, 2012 | Recent Developments
The United Nations reports that the most common form of violence experienced by women around the world is physical violence inflicted by an intimate partner. On a global average, at least one in three women is beaten, coerced into sex, or otherwise abused by an intimate partner in the course of her lifetime.
Thus, it is all the more significant that in August 2011, the Inter-American Commission on Human Rights (“the Commission”) found that the United States violated the human rights of Jessica Lenahan and her three daughters in the first domestic violence case brought against the United States in an international human rights tribunal. The Commission’s decision confirmed the application of the due diligence standard to interpret the obligation of non-discrimination under the American Declaration on the Rights and Duties of Man. That obligation requires states to prevent, prosecute, and sanction acts of violence against women, including, in certain circumstances, acts of violence by private actors.
The Commission found that the United States’ failure to meet this standard resulted in violations of Lenahan and her daughters’ right to equality, right to life, and right to special protection as women and children. The decision stands in stark contrast to the U.S. Supreme Court’s 2005 ruling on the same facts in Town of Castle Rock, Colo. v. Gonzales, in which the Court held that the state generally has no duty to protect individuals from private acts of violence. This comment explores the effectiveness of the due diligence standard in the Commission’s merits report.
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