Apr 9, 2012 | Student Commentaries
I. Introduction
The Christian community in Iraq has survived conquests by Arabs, Huns, and Turks over the two millennia since the birth of Christianity. However, the latest danger to Iraq’s Christians, who include Assyrians, Chaldeans, and Catholics, poses the largest threat that this community has faced yet. In post-Saddam Iraq, a lethal combination of a Western “other” Christian identity, Islamic extremism, and a depressed economy has taken an enormous toll on Christians in Iraq. Their communities all over the country have been devastated by violence against men, women, children, and community symbols like priests, bishops, and churches. Because they only numbered about 1.5 million before the fall of Saddam Hussein, these attempts to terrorize and scare away Christians threaten the very existence of Christianity in Iraq.
In response to violence inside Iraq, many Christians have fled the country or become internally displaced, fleeing to traditionally Christian areas in Northern Iraq. Though their situations outside Iraq as registered or unregistered refugees may be difficult, those who are a part of the Christian Iraqi diaspora are hesitant to return to their homeland due to the systematic violence and discrimination they have faced and may face again. Can international action or internal, government programs do anything to save Christianity in Iraq?
To answer this question, I will address a number of issues. First, I will explore the underlying causes of the historical violence against Christians, taking a deeper look at the construction of the Christian identity as the Western “other.” Second, I will consider the current situation facing Iraqi Christian refugees and internally displaced peoples. Finally, I will propose remedies that seek to encourage Christian Iraqis to either remain in or return to Iraq. These remedies include 1) deconstructing Christians’ “other” identity through constitutional changes and civil society initiatives, 2) creating a semi-autonomous “safe haven” for Christians inside Iraq, and 3) encouraging international economic assistance to revive devastated Christian communities. Though my suggestions are to promote a continuing Christian presence in Iraq, they are by no means a definitive solution. There is still time to save Christianity in Iraq, but it remains uncertain whether the community will ever fully recover from the devastation of the last ten years.
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Dec 21, 2011 | Student Commentaries
I. INTRODUCTION
Despite years of negotiations aimed at addressing transnational corruption, the international community has failed to establish an effective international legal regime to curb the problem. After providing an outline of the problem and a brief history of attempts to address it, this Commentary considers some possible explanations for the international community’s continuing inability to negotiate an effective agreement to crack down on firms that bribe foreign officials. The Commentary concludes by speculating that an institutionalized enforcement mechanism might provide impetus for an agreement.
II. THE PROBLEM
A. The Problems of Corruption
Corruption, “the misuse of public power for private profit,” can include practices as diverse as nepotism, patronage, misappropriation of resources, abuse of insider information, extortion, and money laundering. International attention, however, has focused largely on bribery. Of particular importance is bribery involving high government officials and procurement, privatization, or other large-scale public decisions, also known as “Grand Corruption.”
Although once accepted by some as useful “grease in the wheels,” corruption is now almost universally seen as both harmful and immoral. Corruption has been condemned by major world religions and international institutions, and bribery of government officials is illegal in almost every country.
Corruption hurts economic growth and development, creating market inefficiencies by allocating resources based on bribery rather than merit. The corruption of regulatory systems not only transfers resources from honest people to unscrupulous ones, but can also put health and safety at risk. Widespread bribery undermines “public perceptions of how—and how well—a proper market economy works,” inhibiting liberal reforms and the rule of law.
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Mar 28, 2011 | Student Commentaries
I. Introduction
In September 2010, a two-judge Second Circuit majority ruled that corporations are immune from liability under the Alien Tort Statute (“ATS”).[1] This statute, which grants aliens access to federal district courts, has emerged as a controversial tool for international norm enforcement in the last thirty years. The unexpected decision to foreclose corporate liability has generated a wave of criticism from human rights activists and international law scholars who claim that the decision is grounded in a fundamental misunderstanding of international law.
This commentary examines the Kiobel decision against other recent interpretations of the ATS, especially those following the Supreme Court’s decision in Sosa v. Alvarez-Machain. Although corporate immunity makes little sense doctrinally, this commentary attempts to provide a rationale for the Second Circuit’s decision. The Kiobel decision was largely the product of policy concerns about expanded use of the ATS. And it stems from the Supreme Court’s mandate to lower federal courts to exercise “vigilant doorkeeping”: narrowing ATS claims to those that arise under “customary international norms.”[2] Confusion over what body of law determines enforcement standards has resulted in varying interpretations of ATS jurisdictional boundaries, and has contributed to the vigorous Second Circuit decision in Kiobel.
Following further consideration among the circuits, the Supreme Court should address whether the ATS allows corporate liability, aiding and abetting liability, and liability for purely extraterritorial suits. Eliminating liability under any of these theories would have resulted in dismissal in Kiobel. However, sweeping rules may screen out meritorious cases. The question then becomes what set of rules would achieve the optimal result, minimizing over-screening while adhering to the Supreme Court’s requirement of caution.
Critics (including the U.S. government) warn that a lack of principled limits will have negative systemic effects, including dire consequences for U.S. foreign policy. However, human rights activists discount these predictions as unfounded and exaggerated. They focus on the ATS’s important role in the development of principles of international accountability, and the importance of granting victims of atrocities access to the U.S. judicial system. As the international enforcement system stands, “[a]dherence to internationally recognized human rights norms remains largely voluntary, and current mechanisms for international enforcement have had little impact on abusive behavior.”[3] ATS litigation provides a unique opportunity for redress for victims of crimes against humanity. However, it remains to be seen whether the benefits of ATS litigation outweigh potential harms to U.S. foreign policy. In articulating the boundaries of ATS jurisdiction, the federal courts must continue to balance the United States’ current international obligations with principles of international comity. The Supreme Court has categorically rejected the imposition of liability that threatens diplomatic relations, and would likely continue to do so in this context. It is unlikely that the Supreme Court would support an ATS claim on a theory of aiding and abetting liability in a purely extraterritorial case when the systemic effects pose great risk to U.S. interests. . . .
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[1] Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), reh’g en banc denied, No. 06-4800-cv, 2011 WL 338048 (2d Cir. Feb. 4, 2011).
[2] Sosa v. Alvarez-Machain, 542 U.S. 692, 728, 729 (2004).
[3] See Terry Collinsworth, The Key Human Rights Challenge: Developing Enforcement Mechanisms, 15 Harv. Hum. Rts. J. 183, 183 (2002).
Nov 22, 2010 | Student Commentaries
The decision of the Extraordinary Chambers in the Courts of Cambodia to sentence Duch, the brutal Chairman of S-21 and the Killing Fields at Choeung Ek, to a mere nineteen years in prison exemplifies the disturbing tendency of international criminal tribunals to issue sentences of pedestrian severity to the world’s very worst criminals. This article examines the sociopolitical roots of this phenomenon. Drawing on insights from the political science literature to engage in a comparative analysis of the relationship between democracy and punishment, the article concludes that international criminal tribunals’ lenience likely stems, at least in part, from excessive insulation from, and insensitivity to, democratic pressures. The experiences of the United States—where democratic participation in the machinery of punishment and excessively punitive sentencing have gone hand in hand—counsel against allowing popular sentiment to directly dictate the terms of punishment. Yet international jurists could arrive at a more just sentencing framework by incorporating popular preferences and values into their decision-making processes.
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Nov 13, 2007 | Student Commentaries
I. Introduction*
On November 21, 2007, the Grand Chamber of the European Court of Human Rights will hear the case of Yumak and Sadak v. Turkey. The question for the Council of Europe’s highest court will be whether Turkey’s 10% electoral threshold amounts to a denial of free expression of the opinion of the people in the choice of the legislature, thereby constituting a violation of Article 3 of Protocol 1 of the European Convention of Human Rights. The Grand Chamber has never before considered a case on electoral systems, preferring to leave this controversial area to the discretion of the member states by granting to them a wide ‘margin of appreciation.’ At a time when the Court remains unsure of its own boundaries, and with judicial institutions being regarded with increasing skepticism by those who fear a “government of judges,” the ruling will have crucial implications for the development of democracy within the Council of Europe’s Member States.
The impact of the Court’s ruling could even go beyond re-shaping the electoral laws within the European Union (“EU”) and have an impact on Turkey’s ambitions for European accession. With integration at the top of the EU agenda, the prospect of Turkish membership will be increasingly remote if Turkey is seen as a country whose values will disrupt the process of deepening integration. Two of the most problematic issues facing Turkey in this context are the prolonged armed conflict with the Kurdish secessionist movement, the Kurdistan Workers’ Party (“PKK”), and the significant influence of the military in Turkish politics. The European community sees these issues as both costly for the Turkish economy, hence a potential drain from the EU budget, and undemocratic in the non-recognition of minority rights and
pluralism. The present case touches on both areas. The 10% threshold was initially imposed by the military during the 1980 intervention, and its effect has been to exclude minorities, especially the Kurdish minority, from the National Assembly. A ruling against Turkey would therefore not only establish an important judicial precedent within the European community; it would also test Turkey’s resolve to join the EU. This article looks at the issues that will be facing the Grand Chamber and the context within international law.
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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.
Apr 27, 2007 | Student Commentaries
I. INTRODUCTION
China’s new international adoption law, set to take effect on May 1, 2007, will prohibit international adoption of Chinese children by single adults. International adoption is a popular avenue for prospective adoptive parents in the United States, and because China has been a major source of internationally adopted children, these new laws will significantly impact the steady trend of U.S. citizens adopting abroad. It is unlikely that China’s more stringent adoption requirements will affect U.S. domestic adoption policies even though the requirements will hinder adoption by some U.S. prospective parents. Accordingly, United States citizens who cannot meet the new Chinese adoption standards will have to adopt less “adoptable” children, look to other sender-countries, pursue options like reproductive technology, or decide to forego parenthood altogether.
I begin by examining the specifics of China’s proposed international adoption law and China’s international adoption policies. Next, I briefly consider China’s role as a significant sender-country to the United States. Finally, I explore the likely impact of the Chinese tightening adoption standards on potential U.S. adoptive parents, looking specifically at the alternatives that the parents who will no longer be able to adopt from China can pursue.
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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.
