Hello. The following blog posts were written by the New York International Law Review senior staff members for the Fall 2020 semester. The posts focus on international events and their relationship to international law.
Author: Ruben Huertero
The Right of Protest Under International Law by: Stephanie Weaver
As the United States has gone through months of protests surrounding police brutality and racism, the right to protest has been in the forefront of people’s minds. Although this is one of the core protections under the First Amendment in the United States, one might wonder if the right to protest is protected under international law. This post will explore that question, using specific examples of protests happening around the world to illustrate how international law intersects with the fundamental right to protest.
I. International Law Protecting the Right to Protest
One of the ways international law is governed is through treaties. The right to protest is recognized by international instruments, including major human rights treaties.[1] One particular treaty that has been ratified by 173 state parties is the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right of peaceful assembly, encapsulated in Article 21.[2] Article 21 states “[t]he right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”[3]
Although Article 21 protects the right to protest and should therefore extend this right to all ratified parties, this does not necessarily guarantee that the parties will comply.[4] Additionally, the enforceability of human rights treaties in general is a difficult topic. In the United States, the ICCPR holds little weight domestically, because although the Senate ratified it, the treaty is non-self-executing.[5] This has the effect that the ICCPR does not create a cause of action by itself in the United States.[6]
Another issue with the enforceability of and compliance with Article 21 is that its language is very broad. Recently, the United Nations Human Rights Committee adopted General comment No. 37 on the right of peaceful assembly.[7] General comment No. 37 is the first comment from the Human Rights Committee dealing specifically with Article 21.[8] A few aspects of this comment help clarify what might otherwise be in question regarding the meaning behind the broad language in Article 21. One aspect addressed is the scope of protection for assemblies. The comment makes clear that any peaceful assembly falls within the scope of protection, “peaceful” and “non-violent” are interchangeable, and there is a presumption of peacefulness when considering whether an assembly is peaceful or not.[9] The comment also notes that violent actions by some (whether members of the protest or agents acting on behalf of the authorities) do not taint the entire assembly’s peacefulness.[10] This comment comes at an opportune time, as it seems to directly address the many protests around the globe.
II. Protests in the United States
The United States has had a long history of using peaceful protest as a Tensions surrounding police brutality and racism in the United States reached a peak this summer, amid fierce protests ignited—at least in part—by the brutal killing of George Floyd by police officers on May 25th, 2020.[11] Protests sparked in at least 140 cities across the United States[12] and lasted throughout the summer, even through the coronavirus pandemic that was silently raging cities all across the United States.[13]
Although the vast majority of these protests were peaceful, the response by law enforcement was anything but.[14] Law enforcement responded to these protests with exactly what was being protested against: police brutality. This includes both injuries and deaths which have resulted from the use of “tear gas, rubber bullets, and other crowd-controlling tactics” by police.[15] Of particular concern is the fact that since May 26, 2020 (the day after Mr. Floyd’s death), over 400 instances have been reported of police “detaining, assaulting, or otherwise preventing journalists from performing their duties.”[16] The response by police officers in the United States to these protests is in direct contravention with both Article 21 of the ICCPR, general comment No. 37, and international norms regarding the use of less lethal weapons.[17] The United States has been under the microscope for this response, but its non-compliance with international human rights laws and standards is not particularly new or surprising, especially considering the United States’ practice of ratifying treaties as non-self-executing, making it difficult (if not impossible) for the United States to be held liable for not following its terms.[18]
III. Protests in Indonesia
One example of recent protests in a foreign country involves the political unrest in Indonesia. Indonesian students have been protesting President Joko Widodo and his government, who have supported legislation that was recently passed which would deter the power of the Corruption Eradication Commission (“KPK”), the nation’s anti-corruption apparatus.[19] The KPK was formed to prosecute corrupt government actors in Jakarta, and since its establishment in 2002 has prosecuted hundreds of politicians, businessmen and officials, and is highly respected by the country.[20] However, the new legislation would significantly prevent their ability to carry out that purpose, and fears that this will lead to even more corruption than already exists have caused students and young people throughout the country to protest against the legislative changes.[21]
Although Indonesia is a member of the United Nations Human Rights Council (which obligates it to uphold “the promotion and protection of civil rights around the globe”) and has ratified the ICCPR (which obligates it to comply with Article 21’s protection of the right to peaceful assembly), the police response to these protests have been violent, in direct contravention of international law. As of September 2019, at least 300 protestors were injured, and one 21 year old student was killed after being shot in the chest.[22] Police have fired tear gas and water cannons at protestors, and videos and images have circulated social media depicting police using excessive force against the protestors.[23] Indonesia has come under scrutiny by human rights groups, with one representative from Amnesty International saying that the actions are “not in accordance with standard procedure” and police “must follow human rights principles while on the job.”[24]
IV. Human Rights Implications
The political unrest and subsequent police response in Indonesia and the United States are just two examples in a long line of trending violent responses by police that result in injuring and killing civilians. Mass protests from citizens in Chile, India, Hong Kong, Kenya, South Africa, and many more have taken place over the last year alone.[25] The reasons behind the protests range—from police brutality to COVID-19 responses—but in many of these places the response by the police has be the same: violence.[26] This is problematic not only because of the short term effect on the victims of violence, but the long term human rights implications in using force—especially deadly force—against citizens who are exercising their fundamental right to protest. This has the potential to create a chilling effect on citizens and prevent them from speaking out against injustices for fear that they will be beaten, arrested, or even killed by the very forces that are supposed to protect them. As discussed previously, this fundamental right is protected at the international level, and yet there is a concerning trend of violent responses by police nonetheless.
Because of the widespread nature of these incidents, it is very important for the international community to respond in some fashion because many parties are clearly in violation of Article 21 of the ICCPR at a minimum, and if they are not held accountable, it will greatly diminish the effect of treaties on the parties who have ratified them, and allow this conduct to continue unchecked.
[1] See, e.g.,Universal Declaration of Human Rights, GA res. 217A (III), U.N. Doc A/810 at 71 (1948) [hereinafter UDHR]; International Convention on the Elimination of All Forms of Racial Discrimination, art. 5(d)(ix), G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195 (entered into forceJan. 4, 1969) [hereinafter ICERD]; International Covenant on Economic, Social and Cultural Rights, art. 8, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 6 I.L.M. 360 (1967), 993 U.N.T.S. 3 [hereinafter ICESCR]. See also U.N. Human Rights Council, Resolution 15/21, U.N. Doc. A/HRC/RES/15/21 (Oct. 6, 2010) (“everyone has the rights to freedom of peaceful assembly and of association”).
[2] International Covenant on Civil and Political Rights, art. 21, 16 Dec. 1966 [hereinafter ICCPR]; OHCHR Dashboard, Status of Ratification, https://indicators.ohchr.org/.
[3] ICCPR, supra note 2, art. 21.
[4] See, e.g., Eric Posner, The case against human rights, The Guardian(Dec. 4, 2014), https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights.
[5] Kristen D.A. Carpenter, The International Covenant on Civil and Political Rights: A Toothless Tiger?, 26 N.C. J. Int’l L. & Com. Reg.1, 3 (2000).
[6] Id. at 11.
[7] See ICCPR. General Comment No. 37: Article 21 (Right of Peaceful Assembly), adopted 23 July 2020, UN Doc CCPR/C/GC/37, online: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11 [hereinafter General Comment 37].
[8] See generally UNHR database, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11.
[9] General Comment 37, supra note 7, at 15, 17.
[10] Id. at 18, 19.
[11] T. Andrew Brown, Peaceful Protests-Not Riots-Bring About Meaningful Change, 92 N.Y. St. B.J.18, 19 (2020).
[12] See Tala Doumani & Jamil Dakwar, Rubber Bullets and the Black Lives Matter Protests, 24 No. 2 Hum. Rts. Brief 77, 77(2020), citing Weiyi Cai et al., Photos From the George Floyd Protests, City By City, N.Y. TIMES (June 1, 2020), https://www.nytimes.com/inter-active/2020/05/30/us/george-floyd-protest-photos.html.
[13] See Brown, supra note 11 at 19.
[14] See Doumani & Dakwar, supra note 12.
[15] Id.
[16] Id., citing Laurin-Whitney Gottbrath and Patrick Strickland, Blinded, Arrested: Police Attack Journalists Covering U.S. Protests, AL JAZEERA (June 16, 2020), https://www.aljazeera.com/indepth/features/blinded-arrested-police-attack-journalists-covering-protests-200616023545157.html.
[17] See id. at 79—80; see also ICCPR, supra note 2, art. 21; General Comment 37, supra note 7, at 15, 17.
[18]See Doumani & Dakwar, supra note 12 at 80 (“According to a report published by the International Human Rights Clinic at the University of Chicago Law School, “none of the police use of lethal force policies from the 20 largest U.S. cities during 2017-2018 complied with basic international human rights law and standards.”) (quoting Univ. Chi. L. Sch. Glob. Hum. Rts. Clinic, Deadly Discretion: The Failure of Police Use of Force Policies to Meet Fundamental International Human Rights Law and Standards19 (2020), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1014&context=ihrc);see also Carpenter, supra note 5, at 3, 11.
[19] Hailey Ferguson, Indonesian Government Proposes Legislation Attacking Anti-Corruption Agency, Brutally Cracks Down on Student Protesters, Hum. Rts. Brief, Spring 2020, at 6, 7.
[20] Febriana Firdaus, What’s driving the latest protests in Indonesia, ALJAZEERA(Sept. 30, 2019), https://www.aljazeera.com/news/2019/09/driving-latest-protests-indonesia-190926090413270.html.
[21] Ferguson, supra note 11.
[22] Febriana Firdaus, What’s driving the latest protests in Indonesia, ALJAZEERA(Sept. 30, 2019), https://www.aljazeera.com/news/2019/09/driving-latest-protests-indonesia-190926090413270.html.
[23] Elisabeth Glory Victory, Reports of Police Brutality Spike in Indonesia… (Jade Poa trans.), VICE(Sept. 16, 2019), https://www.vice.com/en_asia/article/zmjyya/reports-police-brutality-spike-indonesia-570-high-school-students-detained-involvement-protests.
[24] Id.
[25] Thomas Carothers, Global Protests Start to Return, Carnegie Endowment for International Peace, 30 June 2020, https://carnegieendowment.org/2020/06/30/global-protests-start-to-return-pub-82225; Ferguson, supra note 11.
[26] Id.
National Security and the War on Drugs: Executive Interpretation of the Immigration and Nationality Act by Nicholas J. Orbon
For the past 68 years, the United States has relied on the Immigration and Nationality Act of 1952, also known as the INA, in order to tackle many obstacles including immigration law and matters of national security.[1] The INA provides details regarding removal and detention procedures for aliens, including, those who have been determined by the INA to be members of Foreign Terrorist Organizations (FTOs).[2] Chapter 12 of the INA outlines the parameters of alien classification and specifically provides for definitions of the types of activity that would designate an individual as a “terrorist.”[3]
The provisions of this section of the INA are not only far-reaching but are often politicized. President Trump previously floated the idea of his administration designating many Mexican drug cartels as FTOs.[4] Although the President contemplated this designation, the plan fell through due to the potentially disastrous outcome it would have on diplomatic relations between Mexico and the United States.[5] Today, the Bureau of Counterterrorism in the State Department still maintains a list of all current FTOs.[6]
The Executive Branch’s position on FTO’s, such as the one discussed above, can serve as both a signal an administration’s policy towards tackling potential threats invoking national security and policy in regard to the use and sale of illegal drugs.[7] The Legislative Branch also has, in the past, attempted to amend the INA to designate local gangs within the United States as FTOs.[8] Specifically, legislators have made efforts to amend the INA to apply to local groups such as MS-13 and the Latin Kings.[9] In addressing the previous attempts by Congress to amend the INA to include such provisions, Dan Cadman, author of “In Dealing with the Cartels, Is It Terrorist Designation or Nothing?”details that even with a majority in both houses, bills attempting to expand the INA to reach gangs located within the U.S have never gained significant traction.[10] These efforts raise the question: how much of the drug war can be fought on the federal level through immigration law or policy? The answers to these questions may not lie within the provisions of the INA itself. Instead, they may lie within the history of illegal narcotics in the United States and past attempts to regulate them.
The “War on Drugs” began in the United States as early as the 1800’s and, at that time, focused on regulating various narcotics such as morphine and opium.[11] Statutes like the Smoking Opium Exclusion act in 1909and the Controlled Substance Act were early examples of Congress and the Executive Branch attempting to thwart the use and sale of these drugs within the U.S through narrowly tailored legislation.[12] Years later, President Nixon continued this trend by officially waging the “War on Drugs,” during his administration.[13] Yet, despite years of litigation, regulation, and campaigning, drug use in the United States is still considerably widespread and takes lives on a regular basis.[14]
Outside of our legislature, the “War on Drugs” is also being fought by state and federal law enforcement through investigations and raids of active cartels located within the U.S.[15] In March of this year, an operation referred to as “Project Python,” led by the Drug Enforcement Administration, yielded 20 kilograms of illegal drugs and $20 million in cash from Jalisco New Generation Cartel, known as CJNG.[16] “Officials say the cartel has hubs in Los Angeles, New York, Houston, Chicago and Atlanta and is a major presence on the Southwest border.”[17] Aside from the amount of drugs and money seized by the government, the investigation also resulted in 600 arrests and over 300 indictments.[18] The Department of Justice commented that the CJNG is still an active presence in many cities across the country.[19] In fact, the CJNG is the most expansive cartel currently in Mexico now has a presence in twenty-four states as opposed to occupying only four in 2010.[20] Decades later, the “War on Drugs” is still being fought and the Trump administration appears to believe that one way to effectuate change is to use the INA, including by designating certain cartels as FTOs.[21]
When addressing the policy considerations underlying the decision to contemplate designating cartels as “terrorist organizations,” it is important to analyze how and why the administration would push for such classification. It is possible that such classification is an effort to use the INA to tackle policy goals under the guise of national security. However, there are many who claim that legislation to fight the pervasive drug culture within the U.S fits into the scope of national security.[22] The amount of illegal drugs smuggled across and between Mexico and the United States annually calls into question our nation’s sovereignty and precedent going forward with the conduct of future administrations.[23] Many Americans might agree that if the federal government feels as though these classifications would be beneficial then they should be able to utilize the INA in this manner going forward. Others might disagree and point to constitutional issues, including, potential due process concerns for individuals who might be labeled under such classification. Although it is difficult to predict how the Biden Administration might attempt to use the INA, it is important to discuss the features of the INA and its role in our political system.
[1] See generallyDepartment of Homeland Security, Immigration and Nationality Acthttps://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act
[2] Immigration and Nationality Act (October 21, 2020) https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1189&num=0&edition=prelim
[3] Id. at §1182.
[4] Bobby Allen, Trump Floating Terrorist Label For Mexican Cartels Brings Fears Of Drone Strikes(November 27, 2019) https://www.npr.org/2019/11/27/783371799/trump-floating-terrorist-label-for-mexican-cartels-brings-fears-of-drone-strikes
[5] Patrick J. McDonnell, Trump suspends plan to classify Mexican cartels as terrorist groups(December 6, 2019) https://www.latimes.com/world-nation/story/2019-12-06/trump-suspends-plan-to-classify-mexican-cartels-as-terror-groups
[6] Supra note 4.
[7] See id.
[8] Dan Cadman, In Dealing with the Cartels, Is It Terrorist Designation or Nothing?(December 19, 2019) https://cis.org/Cadman/Dealing-Cartels-It-Terrorist-Designation-or-Nothing
[9] Id.
[10] Id.
[11] History.com Editors, War on Drugs(December 17, 2019) https://www.history.com/topics/crime/the-war-on-drugs
[12] See id.
[13] Id.
[14] Id.
[15] See Michael Kosnar, U.S. probe into Mexican drug cartel yields 750 arrests, (March 12, 2020) https://www.nbcnews.com/news/us-news/u-s-probe-mexican-drug-cartel-yields-750-arrests-n1156246
[16] Id.
[17] Id.
[18] J. Edward Moreno, Feds arrest over 600 alleged Mexican cartel members(March 11, 2020) https://thehill.com/homenews/administration/487064-feds-arrests-over-600-alleged-mexican-cartel-members
[19] Id.
[20] Id.
[21] Supra note 4.
[22] See id.
[23] See id.
Ramos v. Wolf: The Recent Ninth Circuit Decision & The Widespread Ramifications by: Torrye Zullo
Understanding the Purpose and Meaning of the Temporary Protected Status Program
The Temporary Protected Status (TPS) program is “a congressionally created humanitarian program” crafted after the passage of the Immigration Act of 1990.[1] TPS provides temporary relief to nationals of designated foreign countries who cannot safely return in the short term to their home nation as a result of a natural disaster, armed conflict, or other “extraordinary and temporary conditions in the foreign state.”[2] The creation of the TPS program stemmed from concerns with the “extended voluntary departure” (EVD) process, which was the process for how the federal government allowed groups of nationals to remain in the United States for humanitarian reasons prior to TPS.[3] TPS currently protects roughly 317,000 people in the United States from 10 different countries.[4]
The TPS statute authorizes the Secretary of Homeland Security to designate foreign countries for TPS “after consultation with appropriate agencies of the Government” and “only if” the Secretary finds certain criteria met, including (A) “an ongoing armed conflict within the state” where “requiring the return of [nationals of that state] . . . would pose a serious threat to their personal safety”; (B) “earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected” where “the foreign state is unable, temporarily, to handle adequately the return [of its nationals] to the state,” and the state “officially has requested [this] designation”; and (C) “extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.”[5]
TPS Determinations for Sudan, Haiti, Nicaragua, and El Salvador
In 2017 and 2018, Secretaries of the Department of Homeland Security terminated the TPS designations of four countries: Sudan, Nicaragua, Haiti, and El Salvador.[6]
In 1997, Sudan was designated for TPS because of an ongoing civil war that prevented the safe return of Sudan nationals.[7] In the next 20 years, Sudan was periodically extended or redesignated for TPS fifteen times by prior administrations, based on factors such as forced relocation, human rights abuses, famine, and denial of access to humanitarian agencies.[8] In 2017, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Sudan.[9] The termination notice concluded that the conflict in Sudan was now “limited to Darfur and the Two Areas (South Kordofan and Blue Nile states) and therefore the designation was no longer necessary.[10]
In 1999, Nicaragua was designated for TPS because of conditions caused by Hurricane Mitch.[11] The designation was then periodically extended or redesignated for TPS thirteen times by prior administrators, based on factors such as “recent droughts as well as flooding from Hurricane Michelle in 2002” and subsequent natural disasters and storms.[12] In 2017, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Nicaragua.[13] The termination notice concluded, inter alia, that “[r]ecovery efforts relating to Hurricane Mitch ha[d] largely been completed” and the “social and economic conditions affected by Hurricane Mitch ha[d] stabilized” by 2017.[14]
In 2001, El Salvador was designated for TPS because of the devastating effects of three earthquakes.[15] Since then, El Salvador’s designation was extended eleven times by prior administrations, based on factors such as “a subsequent drought” (2002 notice), the effects of Tropical Storm Stan, the eruption of the Santa Ana volcano, subsequent earthquakes, and Hurricane Ida (2010 notice).[16] In 2018, an acting Secretary for the Department of Homeland Security terminated the TPS designation for El Salvador.[17] The termination notice concluded, inter alia, that conditions supporting El Salvador’s 2001 designation for TPS on the basis of environmental disaster due to the damage caused by the 2001 earthquakes are no longer met.[18]
Lastly, in 2010, Haiti was designated for TPS after a 7.0 magnitude earthquake devastated the country’s population and infrastructure.[19] Since then, Haiti’s TPS designation was extended or redesignated five times, including once by the Trump administration, based on factors such as, “steady rains . . . which led to flooding and contributed to a deadly cholera outbreak.”[20] In 2018, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Haiti.[21] The termination notice concluded, inter alia, the“extraordinary and temporary conditions relating to the 2010 earthquake that prevented Haitian nationals from returning safely—are no longer met.”[22]
Ramos v. Wolf
Following the terminations described above, Sudan, Nicaragua, Haiti, and El Salvador (as Plaintiffs) brought suit against acting Secretary of Homeland Security challenging termination of TPS designations for their home countries under Administrative Procedure Act (APA) and Equal Protection Clause alleging that (1) the Secretary’s actions violated the APA by departing from prior practice without an adequate explanation and (2) the decisions were motivated by a discriminatory animus in violation of the Equal Protection Clause.[23]
The Plaintiffs requested the federal district court enjoin the Department of Homeland Security (DHS) “from implementing or enforcing the decisions to terminate the TPS designations for El Salvador, Nicaragua, Haiti, and Sudan.”[24] And in response, the Department of Justice (DOJ) filed a motion to dismiss arguing that Immigration and Nationality Act (INA) Section 244(b)(5) precluded the court from reviewing DHS’s TPS terminations. Subsequently, in October 2018, the court issued a preliminary injunction enjoining DHS from terminating the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador pending the outcome of the litigation.[25]
The district court found,inter alia, that the plaintiffs demonstrated a likelihood of success on the APA claim and equal protection claim.[26] In regard to the APA claim, the plaintiffs claimed the DHS changed the way in which they evaluated the countries, and now only considered whether the original basis for a country’s TPS designation had continued, without examining more recent events in the country that might warrant a TPS designation.[27] In regard to the equal protection claim, the district court found the Plaintiffs provided sufficient evidence to raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations.[28] In particular, Plaintiffs provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants.[29]
In its order, the court determined that the plaintiffs would likely suffer irreparable injury absent a preliminary injunction given their established ties to the United States and the potentially unsafe conditions in their home countries, and that a preliminary injunction would serve the public interest.[30]
On appeal by the Government, the Ninth Circuit Court of Appeals reversed the decision of the district court.[31] The Ninth Circuit held (1) plaintiffs’APA claim was not reviewable pursuant to Immigration and Nationality Act’s bar on judicial review of any TPS designation determination, and(2) plaintiffs’ failed to raise a serious question as to the merits of their equal protection claim.[32] In regard to the APA claim, the court addressed the claim as a challenge to the agency’s new and unexplained practice of refusing to consider intervening events in its TPS decisions.[33] The Court found that because “such a claim fundamentally attacks the Secretary’s specific TPS determinations, . . . it is barred from review by section 1254a. Given that Plaintiffs may not raise their APA claim as a matter of law, the claim cannot serve as a basis for the preliminary injunction and we need not consider its likelihood of success on the merits.”[34] Moreover, in regard to the equal protection claim, the court found the plaintiffs failed in their burden of showing a likelihood of success, or even serious questions, on the merits of their claim that racial animus toward “non-white, non-European” populations was a motivating factor in the TPS terminations.[35] Accordingly, the court vacated the preliminary injunction protected the plaintiffs under TPS.[36]
The Impact of The Ninth’s Circuit Decision
The Ninth’s Circuits decision impacts thousands. As of 2016, it was estimated by the Pew Research Center that 195,000 individuals from El Salvador have TPS, 46,000 individuals from, 2,550 from Nicaragua and 450 individuals from Sudan.[37] However, many options still exist to protect those who were previously protected under TPS.
Many individuals with TPS may be eligible to remain in the United States because of “their family ties, the length of time they have been in the United States, or the conditions in their home country.”[38] First, TPS holders with close family members who are U.S. citizens or Lawful Permanent Residents (LPRs) may be eligible for adjustment of status under INA § 245.[39] Second, an individual who fears persecution or who would likely be harmed or tortured in his/her home country may apply for asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”).[40] Third, a person can apply for cancellation of removal “under INA § 240A(b) if she is in removal proceedings, has been in the United States for 10 years before being served a Notice to Appear (NTA), has had good moral character for the last 10 years, has not been convicted of certain criminal offenses, and has a U.S.-citizen or LPR spouse, parent or child (under 21 years old and unmarried) who would suffer exceptional and extremely unusual hardship if she is removed from the United States.”[41] Fourth, Salvadorans may be eligible for cancellation of removal or suspension of deportation under the Nicaraguan and Central American Relief Act (NACARA).[42]
Other individuals who have lived in the United States with TPS may be eligible for other forms of relief, depending on their personal circumstances. Potential options include a U Visa[43] or VAWA Cancellation of Removal or Suspension of Deportation[44] for certain abuse victims, a T Visa for victim of human trafficking,[45] and Parole-in-Place (PIP) for close relatives of U.S. military personnel and veterans living in the United States.[46]
TPScan undoubtedly be a vital safeguard for individuals, but in the coming months, it will be important that individuals impacted by the decision in Ramos v. Wolf know of the other vital safeguards that exist for them.
[1] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020); Pub. L. No. 101-649, 104 Stat. 4978.
[2] 8 U.S.C. § 1254a(b).
[3] See Lynda J. Oswald, Note, Voluntary Departure: Limiting the Attorney General’s Discretion in Immigration Matters, 85 Mich. L. Rev.152, 157–60 (1986).
[4] D’Vera Cohn, Jeffrey Passel, and Kristen Bialik, “Many Immigrants with Temporary Protected Status Face Uncertain Future in U.S.”, Pew research center (Nov. 27, 2019).
[5] 8 U.S.C. § 1254a(b).
[6] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).
[7] Designation of Sudan Under Temporary Protected Status, 62 Fed. Reg. 59737-01, 59737 (Nov. 4. 1997).
[8] See Extension of Designation of Sudan Under Temporary Protected Status Program, 63 Fed. Reg. 59,337-01 (Nov. 3, 1998); 64 Fed. Reg. 61,128-01 (Nov. 9, 1999) (extension and redesignation); 65 Fed. Reg. 67,407-01 (Nov. 9, 2000); 66 Fed. Reg. 46,031-01 (Aug. 31, 2001); 67 Fed. Reg. 55,877-01 (Aug. 30, 2002); 68 Fed. Reg. 52,410-01 (Sept. 3, 2003); 69 Fed. Reg. 60,168-01 (Oct. 7, 2004) (extension and redesignation); 70 Fed. Reg. 52,429-01 (Sept. 2, 2005); 72 Fed. Reg. 10,541-02 (Mar. 8, 2007); 73 Fed. Reg. 47,606-02 (Aug. 14, 2008); 74 Fed. Reg. 69,355-02 (Dec. 31, 2009); 76 Fed. Reg. 63,635-01 (Oct. 13, 2011); 78 Fed. Reg. 1872-01 (Jan. 9, 2013) (extension and redesignation); 79 Fed. Reg. 52,027-01 (Sept. 2, 2014); 81 Fed. Reg. 4045-01 (Jan. 25, 2016).
[9] Termination of the Designation of Sudan for TPS, 82 Fed. Reg. 47,228-02, 47,228 (Oct. 11, 2017).
[10] Id.
[11] Designation of Nicaragua Under Temporary Protected Status, 64 Fed. Reg. 526-01, 526 (Jan. 5, 1999).
[12] See, e.g., 71 Fed. Reg. at 16,334; 72 Fed. Reg. at 29, 535.
[13] Termination of the Designation of Nicaragua for TPS, 82 Fed. Reg. 59,636-01, 59,637 (Dec. 15, 2017).
[14] Id.
[15] Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14214-01, 14215 (Mar. 9, 2001).
[16] See Extension of the Designation of El Salvador Under the Temporary Protected Status Program, 67 Fed. Reg. 46,000-01 (Jul. 11, 2002); 68 Fed. Reg. 42,071-01 (Jul. 16, 2003); 70 Fed. Reg. 1450-01 (Jan. 7, 2005); 71 Fed. Reg. 34,637-01 (June 15, 2006); 72 Fed. Reg. 46,649-01 (Aug. 21, 2007); 73 Fed. Reg. 57,128-01 (Oct. 1, 2008); 75 Fed. Reg. 39,556-01 (July 9, 2010); 77 Fed. Reg. 1710-02 (Jan. 11, 2012); 78 Fed. Reg. 32,418-01 (May 30, 2013); 80 Fed. Reg. 893-01 (Jan. 7, 2015); 81 Fed. Reg. 44,645-03 (July 8, 2016).
[17] Termination of the Designation of El Salvador for Temporary Protected Status, 83 Fed. Reg. 2654-01, 2654 (Jan. 18, 2018).
[18] Id.
[19] Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3476-02, 3477 (Jan. 21, 2010).
[20] See Extension of the Designation of Haiti for Temporary Protected Status, 76 Fed. Reg. 29000-01 (May 19, 2011); 77 Fed. Reg. 59943-01 (Oct. 1, 2012); 79 Fed. Reg. 11,808-01 (Mar. 3, 2014); 80 Fed. Reg. 51,582 (Aug. 25, 2015); 82 Fed. Reg. 23,830-01 (May 24, 2017).
[21] Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2648-01, 2650 (Jan. 18, 2018).
[22] Id.
[23] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).
[24]. “Federal District Court Enjoins the Department of Homeland Security from Terminating Temporary Protected Status”, Congressional research service,https://crsreports.congress.gov (Mar. 18, 2019).
[25] Id.
[26] Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1098 (N.D. Cal. 2018), vacated and remanded sub nom. Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] D’Vera Cohn, Jeffrey Passel, and Kristen Bialik, “Many Immigrants with Temporary Protected Status Face Uncertain Future in U.S.”, Pew research center (Nov. 27, 2019).
[38] “After TPS: Options and Next Steps”, Practice Advisory, immigration legal resource center (June 2018).
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
Justice Ruth Bader Ginsburg: Going Beyond U.S. Borders by: Sarah Vinci
Justice Ruth Bader Ginsburg has been called many things: a feminist icon, a trailblazer, a brilliant legal mind, a hero and so on. She fought passionately for what she believed in, breaking down barriers and shattering glass ceilings. Her impact went well beyond the United States borders, as she always made it clear that she believed in the Supreme Court’s use of foreign and international law materials to aid in interpreting U.S. law.
In Justice Ginsburg’s speech “A decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication,Justice Ginsburg said that “The U.S. judicial system will be . . . poorer . . . if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.”[1] She also said that the reason a U.S. court could refer to a foreign and international court decision is because “it bears repetition, not as controlling authorities, but for their indication, in Judge Wald’s words, of “common denominators of basic fairness governing relationships between the governors and the governed.”[2] In this speech, Justice Ginsburg noted all of other commentary that Judges are free to consult; “restatements, Treatises, what law professors or even law students write copiously in law reviews, and, in the internet age, any number of legal blogs.”[3] She found that, “If we can consult those sources, why not the analysis of a question similar to the one we confront contained, for example, in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?”[4]
In 2009, Justice Ginsburg spoke at the Mortiz College of Law at Ohio State University where she said, “I frankly don’t understand all the brouhaha lately from Congress and even some of my colleagues about referring to foreign law.”[5] Justice Ginsburg went on to ask, “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article from a professor?” and suggested that this “hostility to foreign law references is ‘a passing phase.’”[6]
Not only did Justice Ginsburg discuss the importance of using foreign and international law in constitutional adjudication in her speeches, there is also evidence of her using foreign and international law in Supreme Court decisions. For example, in 2003 Justice Ginsburg joined the majority opinion written by Justice Kennedy in the case of Lawrence v. Texas. In this decision, Justice Kennedy writes about how the European Court of Human rights considered a case with parallels to Bowersand the case at issue.[7] Justice Kennedy discusses an adult male residing in Northern Ireland who desired to engage in consensual homosexual conduct but was forbidden by the laws in Northern Ireland.[8] The Court held that “the laws proscribing the conduct were invalid under the European Convention on Human Rights” and that the decision is “at odds with the premise in Bowersthat the claim put forward was insubstantial in our Western civilization.”[9] Not only was this opinion a landmark decision for LGBTQ individuals, but it also proved to be an important decision in regard to the incorporation of international law into the U.S. jurisprudence.
Additionally, in 2005, Justice Ginsburg joined the majority opinion written by Justice Kennedy in Roper v. Simmons. There, Justice Kennedy held that “it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty. . .”[10] Justice Kennedy also found that “the opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”[11] While the case was not decided on an international law basis, Justice Kennedy (as well as Justice Ginsburg who joined the majority opinion) made it clear that international law could (and should) be used as offering persuasive insight.
Furthermore, Justice Ginsburg wrote a concurring opinion in Grutter v. Bollingerwhere she discussed international law. She found that “The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994. . . endorses ‘special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.’”[12] Justice Ginsburg reasoned that the majority’s “observation that race-conscious programs ‘must have a logical end point,’ accords with the international understanding of the office of affirmative action.”[13] More specifically, Justice Ginsburg noted the consistency between “the majority’s decision and the principles embraced in international treaties.”[14] This concurrence was powerful for many reasons, one of those reasons being her application of international and comparative law to the interpretation of U.S. law.
Similarly, in Negusie v. Holder, Justice Ginsburg joined the majority opinion which recognized the role of comparative sources in interpreting the “persecution of others” bar to asylum.[15] The court cites cases from Canada, the United Kingdom, Australia, and New Zealand.[16] A few years later, in the 2015 case Glossip v. Gross,Justice Ginsburg joined Justice Breyer’s dissent regarding the death penalty. Justice Breyer writes that “many nations – indeed, 95 of the 193 members of the United nations—have formally abolished the death penalty and an additional 42 have abolished it in practice.”[17] These are just a few decisions in which Justice Ginsburg either directly or indirectly spoke to the importance of international law.
There is no question that Justice Ginsburg has been a powerful advocate in legitimatizing the role of foreign and international law materials in deciphering U.S. law. Referencing the Declaration of Independence, Justice Ginsburg has stated that “the U. S. Supreme Court will continue to accord “a decent Respect to the Opinions of [Human]kind” as a matter of comity and in a spirit of humility.”[18] She has also quoted Justice O’Connor, who once said that “other legal systems continue to innovate, to experiment, and to find . . . solutions to the new legal problems that arise each day, [solutions] from which we can learn and benefit.”[19] Justice Ginsburg understood the importance of looking at international law in an increasingly global world, and she helped to open U.S. law to a broader view – one that looks beyond our borders.
[1] Ruth B. Ginsburg, “A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication, 1 FIU L. Rev. 27, 28 (2006).
[2] Id.
[3] Id.at 34.
[4] Id. at 35.
[5] Barbara Peck, Ginsburg Dazzles During Visit to Moritz, The Ohio State University Law School Magazine(2009).
[6] Id.
[7] Lawrence v. Texas, 539 US 558, 560 (2003).
[8] Id.
[9] Id.
[10] Roper v. Simmons,543 U.S. 551, 578 (2005).
[11] Id.
[12] Grutter v. Bollinger, 539 U.S. 306, 344 (2003).
[13] Deborah E. Anker, Grutter v. Bollinger: Justice Ruth Bader Ginsburg’s Legitimization of the Role of Comparative and International Law in U.S. Jurisprudence, in Essays in Honor of Justice Ruth Bader Ginsburg (Feb. 4, 2013) (on file with the Harvard Law School Library);see also Grutter v. Bollinger, 539 U.S. 306 (2003).
[14] Id.
[15] Negusie v. Holder, 555 U.S. 511, 515 (2009).
[16] Id.; seee.g., Canada v. Asghedom, [2001] F.C.T. 972, ¶ 28 (Can.Fed.Ct.); Gurung v. Secretary of State for Home Dept., [2002] UKIAT 4870, ¶¶ 108–110 (U.K.Immigr.App.Trib.); SRYYY v. Minister for Immigration & Multicultural & Indigenous Affairs, [2005] 147 F.C.R. 1, ¶¶ 126–128 (Austl.Fed.Ct.); Refugee Appeal No. 2142/94, pp. 12–14 (N.Z. Refugee Status App. Auth., Mar. 20, 1997).
[17] Glossip v. Gross, 576, U.S. 863, 944 (2015).
[18] Ruth B. Ginsburg, supra note 1.
[19] Id.
COVID-19 Impact on Developed and Developing Nations by: Bridget Sheerin
The COVID 19 pandemic has had lasting effects on the economies of low, middle, and high-income countries. Despite the pandemic being around for less than a year, its impact will last for many years to come. This blog post will examine the background of COVID 19, how COVID has impacted the economies of various countries, and how countries have attempted to rectify economic damage that has resulted from COVID.
I. Background
COVID 19 began around November of 2019 and is believed to have originated in Wuhan, China.[1]The virus is believed to have been transmitted from an animal source and is now rapidly spreading between humans via airborne droplets.[2] The virus has spread globally since November of 2019 and has infected millions of people.[3] COVID can vary in its intensity, ranging from asymptomatic to severe pneumonia and death.[4] Pertinent statistics relating to the serious of COVID include:
[T]he incidence of respiratory failure in Wuhan was 54% overall; of those patients who died, 98% had respiratory failure compared to 36% of those who survived. All of those who succumbed had sepsis, and 93% had acute respiratory distress syndrome (ARDS), while 42% of survivors had sepsis and 7% had ARDS. Also noted in this Wuhan cohort was a 48% prevalence of comorbidities in those who died, most commonly hypertension, diabetes mellitus, and coronary artery disease. Increasing age was also associated with increased risk of death. Overall, in-hospital mortality rate was 28%, and for those requiring medical ventilation, it was 97%.[5]
II. Impact on Low Income Countries
Low income developing countries (LIDCs) are in a very difficult position as a result of the COVID 19 pandemic.[6] Without international aid for LIDCs it will be difficult for these countries to prosper in the future.[7] Since the beginning of the COVID 19 pandemic, LIDCs have been impacted by a decrease in exports, lower export prices for many goods most importantly oil, less influx of capital, and a large decrease in tourism.[8] For example, “remittances, for example, that exceeded 5 percent of GDP in 30 (out of 59) LIDCs in 2019. Between April and May, they fell by 18 percent in Bangladesh, and by 39 percent in the Kyrgyz Republic, compared to the previous year.”[9] Such economic repercussions will likely be felt for many years to come.
One major issue for LIDCs that has resulted from the COVID 19 pandemic is food shortages.[10] According to a recent survey, conducted across 20 African countries, over 70 percent of individuals in these countries are at risk of running out of food if a lockdown were to last more than two weeks.[11]Another large issue that may occur in LIDCs as a result of the COVID pandemic is “scarring” which is “the permanent loss of productive capacity.”[12] Scarring has resulted after previous pandemics and leads to a decrease in health and education, a depression of future earnings, a decrease in production, and economic debt.[13] An example of scarring was shown in Sierra Leone after the 2013 Ebola pandemic when the country did not return to its pre-crisis economic growth path.[14] If scarring results from the COVID pandemic it would result in major setbacks in global Sustainable Development Goals and greater global inequality.[15]
In order to avoid a spike in COVID cases, which would thus lead to a food shortage and scarring, researchers recommend social distancing and contact tracing.[16] “As a broad-based containment becomes difficult to sustain, LIDCs should transition to more targeted measures, including social distancing and contact tracing– Vietnam and Cambodia are good examples. Policy support should focus on supporting the most vulnerable, including the elderly, and on limiting the health crisis’s long-term fallout.”[17]
III. Impact on High Income Countries
High Income Countries (HICs) have generally responded to COVID 19 with similar tactics.[18] First, HICs entered a suppression phase typically referred to as “flattening the curve.”[19] The goal of phase one is to avoid an overflow of COVID patients in the hospitals, which was seen in Wuhan when the virus began.[20] The next phase commonly followed by HICs is maintaining the initial suppression.[21] Maintenance of the initial flattening of the curve has been done through continued social distancing, identifying cases quickly, and isolating such cases.[22] While these methods of decreasing COVID outbreaks have found success in HICs the next question is whether such methods would be successful LIDCs.
IV. HIC COVID response in LIDCs
Assistance from the international community will be key to preventing vast COVID outbreaks in LIDCs. Key aspects of support include:
(1) guaranteeing essential health supplies, including cures and vaccines when they are discovered; (2) protecting critical supply chains, especially for food and medicines; (3) avoiding protectionist measures; (4) ensuring developing economies can finance critical spending through grants and concessional financing; (5) ensuring LIDCs’ international liquidity needs are met, which requires international Financial Institutions to be resourced adequately; (6) reprofiling and restructuring debt to resort sustainability where needed, which, in many cases, may require relief beyond G20/Debt Service Suspension Initiative; and (7) keeping sight of the United Nations’ SDGs, including by reassessing needs which the crisis subsides.[23]
The International Monetary Fund has committed $10 billion interest-free loans for LIDCs fighting COVID.[24] Also, the World Economic Forum has created a COVID action plan in order to engage public and private partnerships in taking action in regards to the pandemic.[25] In addition to financial aid, it is recommended that Nongovernmental organizations (NGOs) contribute with additional support.[26] For example, “the Lifebox Foundation, partnering with Smile Train and Gradian Health Care, has secured 1650 pulse oximeters for distribution to countries most in need . . . . Massive efforts will be needed to improve oxygen availablility.”[27] In order to ensure against massive fallout for LIDCs as a result of COVID 19 the previously mentioned suggestions should be put in place as soon as possible.
[1] Will the Higher-Income Country Blueprint for COVID-19 Work in Low-and Lower Middle-Income Countries?, GLOBAL HEALTH: SCIENCE AND PRACTICE(Oct. 12, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7326511/.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] COVID-19: Without Help, Low-Income Developing Countries Risk a Lost Decade, IMF BLOG (Oct. 12, 2020), https://blogs.imf.org/2020/08/27/covid-19-without-help-low-income-developing-countries-risk-a-lost-decade/.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] The COVID-19 Pandemic: Effects on Low- and Middle-Income Countries, Anesthesia & analgesia(Oct. 12, 2020), https://journals.lww.com/anesthesia-analgesia/Fulltext/2020/07000/The_COVID_19_Pandemic__Effects_on_Low__and.13.aspx.
[19] Id.
[20]Id.
[21]Id.
[22] Id.
[23] IMF Blog, supra note 6.
[24]GLOBAL HEALTH: SCIENCE AND PRACTICE, supra note 1.
[25] Id.
26Id.
27 Id.
Mexico Investigates Forced Sterilizations in US Detention Centers by: Michelle Artiles
Recent news has pointed to alleged forced hysterectomies of women in US detention centers.[1] Foreign Minister of Mexico, Marcelo Ebrard, is investigating such accusations and is likely to seek recourse on behalf of the victims if the investigation finds credible evidence. There are numerous agencies that focus in an effort to combat forced sterilization, including but not limited to the Office of the High Commissioner of Human Rights, United Nations Agency for Gender Equality and the Empowerment of Women (UN Women), United Nations Children Fund (UNICEF), and the World Health Organization (WHO).[2] These agencies cite a number of treaties and declarations in support of their efforts to put an end to forced, coercive, and otherwise involuntary sterilization. Some of these are the United Nations Declaration on the Rights of Indigenous People, the Convention on the Rights of the Child, and Article 7 of the Rome Statute of the International Criminal Court.[3] Mr. Ebrard is likely to rely on many of these to bring these claims against United States officials. The main issue with a lot of these international documents is that they are not binding, and therefore even if a country has signed on and ratified the agreement, it is very hard to enforce and ultimately seek recourse. Because of this, Mexico is likely to rely on legal precedent to bring claims against the United States. A noteworthy case regarding whether or not Mexico can sue on behalf of their citizens in the United States is Pfizer Inc. v. Government of India.[4] In Pfizer, the Supreme Court held that foreign nations were entitled to sue the United States’ entity Pfizer, despite the fact that respondents were foreign.[5] The case regarded an alleged violation of antitrust laws, and the Court’s rationale affirmed that foreign nations had standing to sue regardless of the fact that they were sovereign.[6] Here, the Sherman and Clayton Acts each provided that the word “person” shall be deemed to include corporations and associations.[7]
In contrast, a United States District Court dismissed a claim because the federalism justifications that might permit states to bring suit parens patriae were absent.[8] In Estados Unidos Mexicanos v. DeCoster, Mexican immigrant workers and the nation of Mexico brought a civil rights action against their employer.[9] The employer, a Maine private entity, was accused of discriminating against and treating its employees unfairly.[10] The court refused to extend the doctrine of parens patriae to a foreign nation absent a clear indication of intent to grant such standing, by the United States Supreme Court or by the other two branches of government.[11] Ultimately, the court held that the plaintiffs in this suit, could find potential relief under the executive branch through the North American Free Trade agreement or other labor agreements.[12]
Parents patriae, or “parent of the nation”, is a common law doctrine that allows a state to protect “quasi-sovereign interests.”[13] The doctrine is a basis for state standing, and allows a state to sue on behalf of its citizens in the interest of the “well-being of its populace.”[14] The interest must be recognized by the Supreme Court.[15] Here, the government of Mexico may be able to sue on behalf of the individuals who were forced to undergo sterilization procedures while in the custody of US officials, under the guise that a recognized interests is a “state’s effort to secure its citizens ‘from the harmful effects of discrimination.’”[16]
The women who suffered the forced sterilizations can bring suit in the United States under the Alien Tort Statute. The Alien Tort Statute, or ATS, is a federal law adopted in 1789 that gives federal courts jurisdiction to hear lawsuits by non-U.S. citizens for torts committed in violation of international law.[17] International law has expanded to include the protection of human rights, and ATS has enabled survivors of egregious human rights abuses to bring suit against the perpetrator in the United States.[18] Although ATS provides standing to sue, a foreign national suing US government officials will likely face significant legal challenges.[19] Courts have often rejected suits against US officials for human rights violations on grounds of political question doctrine or sovereign immunity.[20]
Sexual violence, which includes forced or coercive sterilization, is considered an international crime. The women who have suffered through these procedures, can sue under a number of international agreements, including the Fourth Geneva Convention, or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[21] The Rome Statute of the International Criminal Court delineates that “enforced sterilization refers to forcibly sterilizing an ethnic group as part of a systematic attack against that ethnic group” is a crime against humanity.[22] Ultimately, the women in the detention center have a number of ways to ensure recourse against US officials, but do face significant challenges if suing in United States courts.
[1]Rachel Treisman, Whistleblower Alleges ‘Medical Neglect,’ Questionable Hysterectomies of ICE Detainees, NPR, Sept. 16, 2020, https://www.npr.org/2020/09/16/913398383/whistleblower-alleges-medical-neglect-questionable-hysterectomies-of-ice-detaine.
[2]International Human Rights Clinic, Forced Sterilization, United Nations, https://lawguides.scu.edu/c.php?g=5744&p=2559362.
[3]Id.
[4]Pfizer, Inc. v. Gov’t of India, 434 U.S. 308 (1978).
[5]Id.
[6]Id.
[7]Id.
[8]Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332 (1st Cir. 2000).
[9]Id.
[10]Id.
[11]Id.
[12]Id.
[13]Kenneth Juan Figueroa, Immigrants and The Civil Rights Regime: Parents Patriae Standing, Foreign Governments and Protection from Private Discrimination, 102 Colum. L. Rev.408 (2002).
[14]Id.
[15]Id.
[xvi]Id.
[17]The Alien Tort Statute, The Center for Justice and Accountability, https://cja.org/what-we-do/litigation/legal-strategy/the-alien-tort-statute/.
[18]Id.
[19]Id.
[20]Id.
[21]Sexual Violence as International Crime, Human Rights Watch, https://www.hrw.org/legacy/campaigns/kosovo98/seviolence.shtml#:~:text=The%20statute’s%20definition%20of%20crimes,sexual%20violence%20of%20comparable%20gravity.%22.
[22]Forced Sterilization, Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/enforced_sterilization#:~:text=Primary%20tabs,of%20the%20International%20Criminal%20Court.
United States’ Prohibition on TikTok and WeChat by: Heather Lewin
I. TikTok and WeChat
TikTok, owned by the Chinese company, ByteDance, Ltd., is a social media app that allows users to create and share short videos.[1] It has become widely popular in the United States, with over 175 million downloads and globally with over one billion downloads.[2] In creating these videos, users can choose from a wide range of sounds, clips, or other TikToks.[3] When opening the app, users find their home screen as featured videos or “for you” videos that the app has chosen.[4] WeChat, owned by the Chinese company, Tencent Holding Ltd., is a messaging, social media, and electronic payment app.[5] It has reportedly over 1.2 billion users globally.[6]
II. National Security Issues
TikTok’s and WeChat’s ties to China have been a point of contention for the U.S. government in recent years.[7] In February of 2019, TikTok paid the Federal Trade Commission $5.7 million to settle an allegation that TikTok illegally collected children’s personal information.[8] But the investigation into TikTok’s data privacy did not stop there. A few months later, the U.S. government began a national security review of TikTok.[9] This was because “all technology companies doing business in China [are] subject to Chinese laws that require companies operating in the country to turn over data when asked to by the government.”[10]
The U.S. government argues that TikTok and WeChat pose a risk to national security because the Chinese government can obtain American user data.[11] Thus, on August 6, 2020, President Trump issued two Executive Orders, under the International Emergency Economic Powers Act, the National Emergencies Act, and section 301 of title 3, United States code to take action against the threats posed by TikTok and WeChat.[12] President Trump’s Executive Order states that “TikTok automatically captures vast swaths of information from its users, including Internet and other networking activity information . . . This data collection threatens to allow the Chinese Communist Party’s access to Americans’ personal and proprietary information . . .”[13] Additionally, President Trump issued another Executive Order addressing similar threats that his administration believes are posed by WeChat.[14] As with TikTok, the argument is that WeChat allows the Chinese Communist Party to collect Americans’ personal and proprietary information.
TikTok has been a national security threat in other countries as well. As of June 2020, India banned TikTok.[15] The Indian government believes that TikTok, amongst other Chinese-owned apps, threatens India’s security and sovereignty.[16] Additionally, TikTok has been under investigation by the European Union, France, and the Netherlands over privacy concerns.[17] Japan is also seeking to restrict the use of TikTok and other Chinese apps.
III. Free Speech
A WeChat user group, WeChat Users Alliance, filed a lawsuit against President Trump to block his executive order that would ban WeChat use in the United States.[18] The WeChat Users Alliance allege that the ban violates the First Amendment, Fifth Amendment, the Religious Freedom Restoration Act, the International Economic Emergency Powers Act, and the Administrative Procedures Act.[19] Additionally, it contends that the ban illegally targets Chinese-Americans.[20] The WeChat Users Alliance argues that a prohibition of WeChat is a restraint on the speech of the Chinese Americans and Chinese-speaking communities in the U.S.[21] In response, the government argues that other social media platforms allow such communications to occur.[22] However, the plaintiffs argue that WeChat is the only effective app for the Chinese citizens to communicate with foreigners because of China’s bans on other apps and because Chinese speakers with limited English have no other options.[23] The government’s national-security interest is significant, but “it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns.”[24]
The United States Magistrate Judge Laurel Beeler, on September 19, 2020, granted the plaintiff’s motion for a nationwide injunction against the executive order finding that “the prohibition was the equality of censorship of speech or a prior restraint on it, for purpose of a preliminary injunction analysis.”[25] Judge Beeler stated the plaintiffs “had shown ‘serious questions’ in their claim that the executive order threatens the users’ First Amendment rights.”[26] Further, U.S. District Judge Carl Nichols issued a similar preliminary injunction to stop the U.S. ban on new TikTok downloads.[27]
While many may view the ban on TikTok and WeChat as U.S. censorship, others view it as the U.S. banning platforms that China censors. Jason Loftus of the Wall Street Journal states, “Some argue that banning WeChat would make the U.S. no better than China, which has suppressed free speech in banning YouTube, Facebook, Twitter and many other U.S. social networking sites. I would argue the opposite: Having millions of American subject to potential surveillance by the Chinese state is an affront to free speech . . .”[28] The Tik Tok litigation is currently ongoing and will continue to drive conversations around the meaning of censorship and free speech in the United States and around the world.
[1] John Herman, How TikTok is Rewriting the World, N.Y. Times(March 10, 2019) https://www.nytimes.com/2019/03/10/style/what-is-tik-tok.html.
[2] Exec. Order No. 13942 85 FR 48637, 2020 WL 4584026.
[3] Herman, supra note 1.
[4] Heather Schwedel, A Guide to TikTok for Anyone Who Isn’t a Teen, Slate, September 4, 2019.
[5] Exec. Order No. 13943, 85 FR 48641, 2020 WL 4584027.
[6]Id.; U.S. WeChat Users All. v Trump, 20-CV-05910-LB, 2020 WL 5592848 (Sept. 19, 2020).
[7] Selina Wang, TikTok’s U.S. Ban is on Hold. What Comes Next?, CNN Business, (October 5, 2020) https://www.cnn.com/2020/10/05/tech/tiktok-what-next-intl-hnk/index.html.
[8] Video Social Networking App Musical.ly Agrees to Settle FTC Allegations That it Violated Children’s Privacy Law, Federal Trade Commission (Feb. 27, 2019) https://www.ftc.gov/news-events/press-releases/2019/02/video-social-networking-app-musically-agrees-settle-ftc (TikTok merged with Musical.ly and goes by TikTok now).
[9] Catherine Shu, TikTok, WeChat and the Growing Digital Divide Between the U.S. and China, TechCrunch (Sept. 22, 2020) https://techcrunch.com/2020/09/22/tiktok-wechat-and-the-growing-digital-divide-between-the-u-s-and-china/.
[10] Patricia Moloney Filiola, TikTok: Technology Overview and Issues, Congressional Research Service(Sept. 29, 2020).
[11] Id.
[12] Exec. Order No. 13942, 85 FR 48637, 2020 WL 4584026.
[13] Id.
[14] Exec. Order No. 13943, 85 FR 48641, 2020 WL 4584027.
[15] Sushmita Pathak & Lauren Frayer, TikTok Changed My Life” India’s Ban on Chinese App Leaves Video Makers Stunned, NPR(July 16, 2020) https://www.npr.org/2020/07/16/890382893/tiktok-changed-my-life-india-s-ban-on-chinese-app-leaves-video-makers-stunned.
[16] Id.
[17] Mathieu Rosemain, French Privacy Watchdog Opens Investigation into TikTok, Reuters(Aug. 11, 2020) https://www.reuters.com/article/us-france-tiktok-privacy/french-privacy-watchdog-opens-investigation-into-tiktok-idUSKCN25718J.
[18] John D. McKinnon, Lawsuit Claims U.S. WeChat Ban Is Unconstitutional, The Wall Street Journal(Aug. 21, 2020) https://www.wsj.com/articles/lawsuit-claims-u-s-wechat-ban-is-unconstitutional-11598059765?mod=djemalertNEWS
[19] Id; U.S. WeChat Users All. v Trump, 20-CV-05910-LB, 2020 WL 5592848 (Sept. 19, 2020).
[20] U.S. WeChat Users All. V. Trump at 10.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Wang, supra note 7.
[26] Id. The federal government chose to appeal the preliminary injunction.
[27] David Shepardson, U.S. Government Appeals Judge’s Ruling to Block WeChat App Store Ban, Reuters(Oct. 2, 2020).
[28] Jason Loftus, WeChat Threatens Free Speech, Wall Street Journal(Oct. 14, 2020) https://www.wsj.com/articles/wechat-threatens-free-speech-11602696748.
New York International Law Review 