Category: International Law

“What about Me?”: How Upholding Non-Refoulement Principles Amidst Turbulent Pakistani-Afghani Relations Paves the Way for a More Peaceful Future

Ila Prabhuram

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4 Prin.L.J.F. 23

Legal Background

The rights of Afghani refugees in Pakistan are being infringed upon and violated, exacerbating tensions and ongoing ethnic conflicts in the country. On October 3, 2023, Pakistan’s government announced a significant enforcement effort targeting individuals residing in the country without proper documentation. The government indicated its intention to deport these individuals, which has caused concern among undocumented foreigners, including an estimated 1.7 million Afghan nationals. Pakistan’s Constitution does not explicitly include domestic asylum laws and procedures, but this lack of procedural protection does not absolve the state of its obligations to uphold the principle of non-refoulement under international human rights and customary law– which guarantees that no individual person should be returned to a country that has dangerous conditions in which the person would face torture, cruel or degrading treatment or punishment, or other irreparable harm, as Pakistan is in consistent collaboration with the United Nations’ member countries to ensure protection for those seeking safety in the country. Pakistan is a state party of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which furthers the necessity of the obligatory implementation of non-refoulement principles. Civic nationalism, which is where a shared identity is centered around the values of the state rather than being concentrated in individual ethnic identities, should serve as the basis for the enactment of laws centered around migrants, rather than the divisive notion of ethnic nationalism exemplified in the forced deportations of Afghan refugees and migrants.

Pakistan’s interim Interior Minister, Sarfraz Bugti, clarified that this crackdown is not specific to Afghans and will apply to migrants of all nationalities, even though the majority of migrants in Pakistan are of Afghan origin. The Pakistani government alleges that Taliban-affiliated militants, who traverse the shared 2,611-kilometer border between the two countries, have been responsible for attacks in Pakistan and often find refuge in Afghanistan. This move comes at a time of strained relations between Pakistan and its neighboring Taliban-led Afghanistan. These tensions stem from an ongoing dispute over what is known as the Durand Line, an international border inherited by Pakistan after the country gained its independence in 1947. The Afghani government has always refused to accept this agreement, attempting to seize Pakistan’s western provinces of Balochistan and Khyber Pakhtunkhwa over the last few decades. Pakistan has issued repatriation laws that forced residents illegally residing in Pakistan to leave by November 1, 2023.  

The Trial of Pakistani Prisoners of War, Pakistan v. India, Interim Measures, Order (1973) ICJ Rep 328, ICGJ 129, a case before the United Nations International Court of Justice, considered whether or not to grant Pakistan’s request for interim measures regarding the handling of the Pakistani prisoners of war that were currently detained in India. The court heard this case after Pakistan informed the court of its ongoing negotiations with India and requested that the Court postpone consideration of its request for interim measures in order to facilitate those negotiations. This case references the repatriation of prisoners of war and that the process should not be interrupted by the virtue of charges of genocide against a certain number of individuals detained in India. This court decision is what laid the framework for repatriation laws in Pakistan to be both utilized and weaponized against minority groups and prisoners residing in Pakistan. Ultimately, the repatriation laws at hand need to be amended in the context of the geopolitical situation unfolding in Pakistan, as the aforesaid Pakistani Prisoners of War case has made it all the more pertinent to reduce the number of Afghani refugees flowing into Pakistan while protecting the rights and security of existing Afghani refugees currently residing in Pakistan in accordance with non-refoulement laws in Pakistan, as this would help protect the existing resources and political stability in Pakistan while providing a safe haven for Afghan refugees.

Amidst the uptick of violence directed towards marginalized residents in Pakistan, there has been a push from external factors for the Pakistani government to create laws centered around mitigating the ongoing tensions between Pakistan’s government and Afghani residents through a constitutional standpoint, focusing on how the government can play a crucial role in protecting the civil liberties of its constituents to achieve a more peaceful, safe, and tolerant society. Such a result is pivotal for quelling unrest and civil disobedience that has been plaguing both Pakistan and Afghanistan for centuries. Because Pakistan has a government that is much closer to a liberal democracy than Afghanistan, adopting laws promoting civic nationalism, where a shared identity is centered around the values of the state rather than being concentrated in individual ethnic identities, is a viable solution. Quelling these ethnic conflicts would allow the Pakistani government to perpetuate non-refoulement laws that protect Afghani refugees from returning to a conflict-ridden state while limiting further immigration in an effort to preserve Pakistani resources and political stability. 

The History and Legality of Non-Refoulement and Forced Removal of Residents 

To fully understand the geopolitical context of this issue, it is important to consider the history and legality of repatriation laws and how certain countries have weaponized the ability to forcefully remove residents. Repatriation laws, also known as the exercise of the right of return, is the personal right of a refugee or prisoner of war to return to their country of nationality due to specific circumstances rooted in various international, human rights, and customary international law instruments, which bears similarities to the principle of non-refoulement under international human rights law. This principle is expected to apply to all immigrants at all times, regardless of their citizenship or residency status, and this principle is explicitly delineated in the CAT and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). Non-refoulement laws are implemented without any exception, and it applies wherever a State exercises jurisdiction or effective control, even when it is outside of that particular State’s territory. 

One case in particular that references the usage of non-refoulement laws and its significance regarding migrants whose residency status is in question is the COT15 v. Minister for Immigration and Border Protection and Migration Review Tribunal Appeal decision. The case centered around an Ethnic Hazar from Afghanistan whose family resided in Pakistan and whose subclass 101 visa (which allows a dependent child to enter Australia to live with their parents that are Australian citizens or permanent residents) under the Migration Act of 1958 was canceled. This was because his wife applied for a subclass 309 (Partner) visa that violated the statutory VISA requirements stating that the applicant did not have a spouse or a de-facto partner. The applicant argued that, as an Afghan Hazara with family in Pakistan, being forced to return to Afghanistan would place him and his family in constant danger and fearing kidnapping, shootings, or bombings by Islamic terrorists and cited obligations under Australia’s Convention on the Rights of the Child and Article 23 of the International Covenant on Civil and Political Rights relating to family unity and the non-refoulement obligations (a person should not be returned to a country where they faced imminent harm or danger) under the Convention Relating to the Status of Refugees. 

It is pertinent to consider the rights of individuals who are seeking asylum, regardless of their citizenship status. In Afghan Asylum Seeker v Federal Office for Migration and Refugees, Decision, 13 A 1294/14.A, ILDC 2387 (DE 2014), 15th September 2014, Germany; North Rine-Westphalia; Higher Administrative Court [OVG], an Afghan citizen applied for international protection in Germany and the asylum authority rejected his application; the applicant filed an appeal but this was rejected. The complaint argued that his right to be heard was violated as German consular officials did not question Afghan witnesses within Afghanistan as part of the evidence-gathering process. Ultimately, the core issues at hand were whether or not the right to be heard required the asylum authority to conduct witness interviews on the territory as part of its evidence gathering in an asylum application process, demonstrating how the rights of minority residents and those residing in a particular area are often overlooked if the individual lacks proper documentation, even in the context of basic human rights.

The Danger of Refoulement

The government of Pakistan has recently decided that all of the foreigners currently residing in Pakistan illegally (without valid documentation or those who have overstayed their visas) will be forcefully returned to their country of origin in a “safe and dignified manner.” This process, however, is not exempt under the mandatory human rights principle of non-refoulement. Furthermore, the process of voluntary return will continue, and the illegal foreigners returning voluntarily to their country of origin will not be arrested or detained; the process of returning illegal foreigners is said to be carried out in a ‘smooth and transparent manner,’ but any form of resistance or exploitation by the targeted individual(s) will be reported to authorities who are then at full discretion to take whatever measures they deem necessary in the name of repatriation. This blatant disregard for non-refoulement principles is extremely dangerous, as the individual human rights and protection of the Afghan immigrants are gravely compromised when they are forcefully sent to a country riddled with conflict and violence. Halting the deportations of Afghan nationals following the Taliban takeover and waiting for the human rights situation to level out in Afghanistan would allow the safe and dignified returns of Afghan immigrants. 

As per the appeal in COT15: although it is explicitly stated in the Pakistani Constitution, non-refoulement should be enforced for all Afghan refugees currently residing in Pakistan. Pakistan should stop all forced returns and continue to host Afghan nationals who fled for safety. The government must also ensure their full access to procedures where their individual human rights protection needs and their need for effective protection in line with international human rights and refugee standards, are fully assessed. On the basis of civic nationalism, the case of COT15 v. Minister for Immigration and Border Protection and Migration Review Tribunal was incorrectly decided; the appeal should not have been dismissed, as individual rights should be constitutionally protected in accordance with non-refoulement principles. Moreover, using civic nationalism as a basis of constitutionality bars cruel and unusual punishments and methods of torture inflicted upon those residing illegally in the country. Ultimately, in order to sustain political stability and maintain a level of human rights protection among Afghan migrants residing in Afghanistan, the Pakistani government must adhere to the principles of non-refoulement in accordance with the United Nations, as a State party, and put forth repatriation laws in practice in an effort to preserve the individual human rights of those seeking asylum.

Sahelian Storms: Evaluating Host State Mali’s Reacquisition of French Bases- Examining Mali-France Defense Treaties, ECOWAS Court Decisions, and the AfCFTA Perspective

Guest Contributor Ibrahim Ati

Echoing from the blue Tuareg, inhabitants of the Sahara and its deserts for centuries, comes a timeless proverb: ‘Ihanay amghar awar ihiniy alyad ibdadane.‘ In translation, it reveals: ‘Seated, an elder sees farther than a youth standing.’ This profound wisdom, deeply ingrained in Sahel’s dunes and culture, acts as a compass under the blazing sun, offering vision and perspective through the formidable storms furiously blowing over the region.

Preamble

With two coups in Mali (August 2020 and May 2021), two in Burkina Faso (January and September 2022), one in Guinea (September 2021), and the latest in Niger (July 2023), the Sahel is in a period of intense reflection and action, having witnessed nine military coups in four years. Amidst these changes, on September 16, 2023, the new governments of Burkina Faso, Mali, and Niger, turned a new leaf in their collective history by signing the Liptako-Gourma Charter, inaugurating the Alliance of Sahel States to fortify security and deepen regional integration among the three nations.

The region, known for its abundant raw materials and energy reserves, has not just experienced a disruption of its political status quo but has also been thrust into a critical reevaluation of international agreements, international trade commitments, and traditional approaches of dispute resolution. These political upheavals have ignited a widespread rejection of French colonial legacies and prompted sanctions from regional blocs and international entities cutting across economic, financial, military, and political spheres.

This military recalibration has influenced a wave of constitutional reforms and revisions across a variety of international arrangements. A key outcome is the relegation of French from its former status as the official language in constitutions. Currently, the International Organization of the Francophonie (IOF) encompasses 88 member states and governments, yet, as of December 2023, Niger and the IOF have officially suspended their cooperation, highlighting the shifting dynamics of regional affiliations and cultural identity. This change contrasts with the historical roots of the IOF, originally established as the Agency of Cultural and Technical Cooperation in Niamey, Niger on March 20, 1970.

The intensified collaboration with the French military to combat insurgents in the Sahel following the start of Operation Serval in 2013 has been critically reevaluated by the region’s new administrations. The growing discontentment incited a collective disengagement from French ties, evidenced by cancellation of military pacts, insistence on French troop withdrawal, prohibition of French media, and even the expulsion of French diplomats. The three countries have also simultaneously denounced their bilateral fiscal agreements with France, first established in 1972 to prevent double taxation. This departure was marred by conflict and contention, marking a significant shift from the traditional amicable Franco-African legal and economic ties, with profound repercussions on international legal frameworks, diplomatic and trade disputes.

This analysis seeks to consider these events through the prism of international law, beginning with a judicial review of the imposed sanctions and the legal status of foreign military bases following their retake. Additionally, the narrative extends to the evolving legal landscape influenced by the African Continental Free Trade Area (AfCFTA), with a focus on pioneering legal doctrine on trade and the Sahel monetary union.

The objective is to offer an analysis of the legal developments in the region and of the wide-ranging impacts these changes have, not just within the Sahel but also in the global arena of international dispute resolution. The discourse will highlight the nuanced forum issues at play, considering traditional legal avenues and transnational comparison of emerging regional trade agreements.

Decade of Military Collaboration: Contextualizing French Operations and Bases Reclamation in Mali in the Wake of Bilateral Agreements’ Termination

The recent reclamation of Kidal by the new Malian government in November 2023 — a crucial area of rebellion lost in May 2014 — along with other northern territories, coinciding with the departure of French military contingents, potentially prompts questions about sovereignty rights and legal status of erstwhile foreign military bases upon withdrawal of consent. Central to understanding this situation is the nature of French military operations in Mali, undertaken with the consent of the Malian government to combat insurgencies. International law recognizes the legitimacy of foreign interventions, provided they are requested by the host government, reflecting the State’s sovereign authority. This concept is affirmed in the International Court of Justice’s (ICJ) ruling in “Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America)” on 27 June 1986 (para. 246), which acknowledges the acceptability of interventions at a government’s request, specifically highlighted by the phrase “intervention, which is already allowable at the request of the government of a State.”

Additionally, the United Nations International Law Commission (ILC), in its 1979 Yearbook (Volume II, 2nd part, pg. 112, para. 11), categorically affirms that state consent is a fundamental prerequisite for legitimizing foreign military interventions. This consent must be “valid(…), clearly established, really expressed, internationally attributable to the State and anterior to the commission of the act to which it refers.” This principle is further reinforced and elaborated in the case “Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)” adjudicated by the ICJ on 19th December 2005, reinforcing the unequivocal State’s right and power to withdraw or annul its consent, thereby altering the initial legal legitimacy of any ongoing foreign military operations. Mali’s withdrawal of its consent was valid under the international law scope. 


Following the withdrawal, the military installations, previously under foreign control for nearly a decade, have been repossessed by Mali. A scrutiny of pertinent international agreements indicates that a significant dispute raised by France against Mali, particularly on potential expropriation grounds, appears improbable. 

Moreover, the legal reversion of these bases to Mali is likely to be affirmed without further recourse to international tribunals to settle the issue, as is easily demonstrated per se by looking at the agreements governing French military engagement in Mali and pre-existing international law. Two key bilateral agreements frame the contours of this relationship: the “Décret n° 2013-364 du 29 avril 2013” and “Décret n° 2016-1565 du 21 novembre 2016,” representing formal, ratified legal commitments between Mali and France, setting out terms for military cooperation and post-operation protocols. They detailed operational norms, rights, and responsibilities, forming a binding legal framework. In the context of international law, as illustrated by the Nicaragua case and principles set forth by the UN ILC, the legality of the French military’s presence for operations in Mali, grounded in bilateral consent, is clear. These operations, as per established international norms, were initially valid. Note, however, that central to this legal structure is Article 8 of the “Décret n° 2013-364,” mandating the return of all facilities used by French forces to Mali upon the mission’s end. Concurrently, Article 11 of the decree prescribes that any disputes arising from the decree’s implementation or interpretation are to be resolved diplomatically, preferring bilateral negotiations and effectively curbing the potential involvement of international tribunals. In a similar vein, the latter “Décret n° 2016-1565” in its Article 24, delineates an internal dispute resolution mechanism involving resolution through a monitoring committee. This decree further establishes primacy of bilateral engagement in addressing the treaty disagreements, opposing external tribunal mandates. 

Clearly, then, the reversion of ownership to Mali is well-grounded within the legal frameworks governing Mali’s cooperation with France. When Mali revoked consent for the continued French military operations, its withdrawal was consistent with the “Armed Activities” precedent which allowed for Mali’s reclamation of the military bases, adhering to the bilateral possession terms. Consequently, the initiation, conduct, and eventual conclusion of French military operations in Mali, including the reversion of military installations to Malian control, seem to have been largely executed in compliance with international law and the specific terms of the Franco-Malian agreements. The initial consent and following withdrawal by the Malian government are likely to have legally governed these operations.

What would occur in the unlikely scenario that the French contemplate asserting expropriation claims for materials and assets lost during its unexpected military withdrawal? A more rigorous legal analysis would then be imperative. The initial phase of this analysis would involve a thorough examination of forum jurisdiction between the two States. Following this jurisdictional assessment, the focus would naturally progress to evaluating the merits of these hypothetical claims.

The principle of expropriation under international law is notably articulated in Chorzów Factory (Germany v. Poland), which mandates compensation for expropriation, and in CMS Gas Transmission Company v. The Argentine Republic, which further dissects expropriation in scenarios involving state and state-entity assets.

Although these precedents set the stage for understanding expropriation, the unique circumstances of military base reclamation by a sovereign state suggest that the direct applicability of such cases may differ in Mali’s context, where military installations are reclaimed under sovereign authority.


A preliminary review suggests that these claims might struggle to demonstrate strong grounding, considering the context and, above all, the content of the agreements between the two nations.

This decadal process, adhering to principles of sovereign consent, appears to align with international law, affirming the unanticipated yet legally sound transfer of control over military installations back to Mali.

This evolution not only mirrors shifts in Mali-France relations but also ties into larger regional frameworks like the Economic Community of West African States’ (ECOWAS) sanctions on Niger and the AfCFTA. Particularly, sanctions on Mali and Niger have catalyzed a move towards tighter integration among the Sahel’s emerging regimes, forming a collective front against ECOWAS’ measures. This unexpected drive towards unity challenges established structures and intersects with the AfCFTA’s ambitions, suggesting that sanctions may promote stronger regional alliances and reinforce oppositional attitudes. This complex landscape of geopolitical, legal, and economic transitions questions old alliances and highlights the necessity for this article to evaluate the impact of sanctions and the potential role of the AfCFTA as a new entity influencing regional integration and governance.

Regional Compliance and Enforcement: ECOWAS Court Affirms Trade and Customs Sanctions on Niger Amidst Growing Tensions

ECOWAS is a regional group representing 17% of the African continent and established by the Treaty of Lagos on May 28, 1975, acted promptly in response to the political turmoil in the region. ECOWAS’ primary objective is to achieve economic integration and collective self-sufficiency among members, forming a vital and essential trading bloc within the African Economic Community. In the wake of the July 2023 coup in Niger, ECOWAS, to enforce compliance, imposed severe sanctions, including the shutting down of borders and the halting of commercial and financial transactions with Niger, urging it to return to constitutional governance. Notably, Nigeria discontinued electricity supply to Niger, significantly cutting more than two-thirds of Niger’s energy consumption. Parallel to ECOWAS’ response, the European Union (EU) also implemented sanctions against Niger, internationalizing the response to the political crisis. These measures, intended to stabilize the region, have significantly affected trade and economic stability, bearing direct consequences on the lives of civilians as well. 

The ECOWAS Court of Justice, seated in Abuja, Nigeria, functions as the judicial arm of the Economic Community of West African States, established as per the Revised Treaty of 1993. Tasked with interpreting and implementing the Community’s treaties, protocols, and conventions, the Court exercises broad jurisdiction in various areas. It can review cases involving non-compliance with Community law, disputes related to the interpretation and application of Community acts, human rights violations and legality of Community laws and policies. 

In December 2023, the ECOWAS Court of Justice addressed two significant cases related to Niger in the sanctions’ aftermath imposed due to the coup d’état and the subsequent detention of Nigerien President Mohamed Bazoum.

On December 7, 2023, the Court heard the first case where Niger sought to challenge the sanctions’ legal basis. Niger argued for interim relief, contending that the sanctions were not only disproportionate but also discriminatory compared to the treatment of other ECOWAS States undergoing transitions, including Mali, Burkina Faso, and Guinea. Central to Niger’s argument was the issue of the admissibility of its plea, considering its origin from a government established just a few months post-coup and deemed illegitimate by many, as well as the urgent need to reevaluate the sanctions’ humanitarian impact. However, the Court dismissed the case, upholding that a regime born from an unconstitutional change, such as Niger’s military junta, lacked the standing to initiate proceedings in the Court, reinforcing ECOWAS’s commitment to constitutional legitimacy. 

On a consequential ruling on December 15, 2023, in the case “Mohamed Bazoum et 2 autres contre l’Etat du Niger” (ECW/CCJ/JUD/57/23), the Court addressed the human rights concerns of the detained President Bazoum. Relying on the Article 10-d as inserted in the Protocol of the Community Court of Justice of the Additional Protocol A/SP.1/01/05 of January 19, 2005, the Court decisively reaffirmed the illegitimacy of the military government and ordered the immediate release of President Bazoum, reinforcing its stance against unconstitutional changes within the ECOWAS. 

The Court’s decision, intended to reinstate constitutional governance by ordering President Bazoum’s release, unexpectedly aggravated the plight of Niger’s civilians. Maintaining sanctions on the military government deepened the nation’s hardship and economic situation.

Those sanctions compounded the adversities faced by the civilian population in Niger, already considered one of the poorest countries on the continent, escalating the crisis in the Sahel region. Judicial interventions, like the ones of ECOWAS, can bring unintended yet increased hardships, where attempts to fortify constitutional governance exacerbate the everyday crisis faced by civilians.

In the context of Niger, ECOWAS’ decision to impose sanctions, including the closure of borders and the suspension of vital transactions going way beyond the financial markets, also casts a spotlight on the strong tensions within regional trade and economic policies, particularly in relation to AfCFTA’s vision for a unified market. This scenario necessitates innovative analysis, encouraging a reassessment of the extent to which sanctions might compromise the broader ambitions for economic integration and seamless trade within Africa. Can the AfCFTA wield its legal authority to oversee regional bodies like ECOWAS, in pursuit of a consolidated market?

AfCFTA’s Free Trade Doctrine and New Dispute Mechanisms: A Potential Supranational Tool to Mitigate Sanctions—Novel Monetary Union Across Africa?

The AfCFTA, adopted on March 21, 2018 and operational since May 30, 2019, is an ambitious Free Trade Agreement aimed at establishing a unified market across Africa. With 54 African member states, its vision is to cultivate a single market for goods and services, facilitated by movement of persons to deepen economic integration of the African continent. The Sahelian governments may see a significant economic opportunity in the commitment to free trade and economic unity, especially as Guinea launches an unprecedented $20 billion project in iron ore, rail, and port development, poised to be the world’s largest mining venture. This free trade vision may also furnish an additional legal foundation for mitigating sanctions imposed by subregional entities, such as ECOWAS, within a larger and perhaps more receptive forum.

Members of the AfCFTA, these States can pursue recourse through dispute resolution mechanisms established in Article 20 of the Agreement, outlining settlement of disputes between State Parties, with formation of panels and an appellate body similar in structure to the dispute settlement system of the World Trade Organization (WTO). In this context, they could contend that those sanctions hinder their rights and responsibilities under the AfCFTA framework, designed to enhance intra-African trade and facilitate economic integration.

In the future, sanctioned African States may ambitiously argue that subregional sanctions conflict with AfCFTA provisions, disrupting the free movement of goods, services, and investment and contravening trade liberalization goals, thus harming both the sanctioned countries and AfCFTA’s broader objectives of African economic unity and integration.

While it’s still early to draw parallels between AfCFTA and the EU’s legal frameworks, even if initial similarities are apparent, AfCFTA shows promise in affecting regional entities like ECOWAS. Similarly to EU legal foundations, notably the Treaty on the Functioning of the European Union (TFEU), particularly Articles 26 and 28 establishing an internal market and prohibiting restrictions on trade among Member States, AfCFTA could require ECOWAS to realign its policies with wider African objectives of economic unity and liberalized trade, surpassing regional trade agreements in legal authority across Africa. 


This scenario would establish AfCFTA’s judicial review of sanctions imposed within Africa, where any measures taken by sub-regional groups should defer to the continent’s unified focus on free trade and economic integration, akin to how EU community law takes precedence over national laws under the principle of primacy, established in the Court of Justice of the European Union’s Costa v. ENEL case of July 15, 1964.

In a decisive stride towards more economic autonomy, the Sahelian Federation is also redefining regional monetary norms. The three countries have convened an economic commission, rumored to also forge the ‘Sahel’ currency, with a new gold-measured standard, poised to supplant the existing national currencies. This ambitious move, bolstered by the establishment of a stabilization fund and an investment bank, poses a direct challenge to the widely criticized Franc de la Communauté Financière Africaine (F.CFA) still being co-regulated by France with the Banque Centrale des États de l’Afrique de l’Ouest (BCEAO) and the Union Monétaire Ouest Africaine (UMOA) as partners. Interestingly, this bold step coincides with ECOWAS’ own intentions to gradually move away from the F.CFA, though the Sahelian Federation’s approach is more immediate and radical.

The AfCFTA now finds itself at a pivotal crossroads. It also faces the complex task of potentially arbitrating this significant monetary transition as part of its free continental trade duties. The crucial decision would lie in whether to align with ECOWAS’ traditional monetary policies or to endorse the Sahelian Federation’s progressive monetary reform. This goes beyond a mere currency change—it represents a critical juncture that could alter monetary disputes and significantly influence regional economic policies.

In this complex backdrop, the ECOWAS Court’s rejection of Niger’s appeal regarding the imposed sanctions also serves as a stark reminder for any new governments established post-coup d’état. The increasing influence of supranational legal systems such as ECOWAS, in matters of trade compliance and sanctions is a significant element to consider for the region’s future, even more with the increasing AfCFTA’s advocacy for free trade.

New Horizons

This development has added layers of complexity to the regional dispute resolution framework, sparking important discussions about where regional teamwork is headed and the proficiency of established mechanisms in managing transnational disputes. Indeed, the shift towards regional alliances, along with constitutional reforms and monetary union, indicates a strong move towards novel structures of governance and dispute resolution.

This collective stance is emblematic of a broader movement among the Sahelian States, which may redefine engagement with traditional regional bodies and external powers.

About the Author

Ibrahim Ati is a dual-educated legal professional with training in both civil and common law systems, having passed the New York Bar and graduated with an LL.M. in Alternative Dispute Resolution from the University of Southern California. Co-Chair of the Middle East region for the Young Institute for Transnational Arbitration, he is also one of the youngest members on the New York City Bar Association’s Arbitration and Professional Discipline Committee, and its youngest representative at the UNCITRAL sessions in the United Nations (New York). In addition to serving as Vice-Chair in the American Bar Association, Ibrahim Ati aspires to be among the new generation of leading international arbitrators, aiming to infuse the field with fresh perspectives and innovative approaches.

Bill 96: A Violation of English-speaking Rights in Québec

Sidney Singer

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4 Prin.L.J.F. 1

In Canada there are multiple pieces of legislation that protect the rights of citizens to live their lives in one of the two official languages, English or French. The earliest, the British North America Act in 1867, implemented French and English as official languages of the parliament, followed by the Official Languages Act in 1969, and the Canadian Charter of Rights and Freedoms. Section 23 of the Canadian Charter of Rights and Freedoms specifically pertains to education and holds that Canadian citizens have a right to be educated in either English or French. In June 2022, Bill 96 was passed in the Canadian Province of Québec. The bill states that its purpose is “to affirm that the only official language of Québec is French.” It also affirms that French is the common language of the Québec nation.” However, I argue that Bill 96 is unconstitutional under Section 23 of the Canadian Charter of Rights and Freedoms, due to enrollment caps placed on English language schools. 

The bill also targets Quebec’s English language educational system, placing caps on the amounts of students permitted in each of the “English-language institutions providing college instruction” at the Minister of Higher Education, Research, Science and Technology’s discretion. The Bill further states that the total number of English-language students cannot exceed 17.5% of the French-language student population, and that the proportion of English and French students must stay the same from year to year.

Immediately after the passage of Bill 96, the English Montreal School Board (EMSB) voted to challenge the bill, with spokesperson Joe Ortona for the EMSB saying that “I’m ready to stand up and fight as an English-language school board and an English-language institution and to stand up for these rights that the government has decided they can throw out the window.”

The EMSB challenge to Bill 96 specifically cited Section 23 of the Canadian Charter of Rights and Freedoms. Section 23 of the Canadian Charter is as follows:

  1. Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province. 

In other words, Section 23 of the Charter of Rights and Freedoms guarantees that if a parent is educating one child in their family in either English or French, they have the right to have all their children receive their instruction in that language. However, what happens if one child is enrolled in an English language school, but due to enrollment caps, their sibling is unable to enroll? Such a scenario would directly violate section 23 subsection 2 of the Charter, which states that “the right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province.” 

 Association des Parents ayants droit de Yellowknife et al. v Attorney General of the Northwest Territories et al., a 2012 case in Canadian Supreme Court of the Northwest Territories, is particularly pertinent as it dealt with the number of students in Yellowknife that had the right to attend Francophone schools. The court looked at census data, determined that there were around 500 eligible students that could attend francophone schools, and concluded that “the capacity of the minority school had to be increased to take into account the number of students it may have to accommodate in the future. The capacity of the school had to be between that number and the existing demand.” 

This decision was decided under section 23 of the Charter, due to the fact that all children who had the right to minority-language education needed to be able to have a place in the French schools if they so wished. Yet the court’s ruling quite clearly contradicts the recent cap on English Language student enrollment in Quebec under Bill 96. If minority language schools must “take into account the number of students it may have to accommodate,” the action of capping enrollment for minority language institutions is directly contradictory.

The Case of Bill 96 is an interesting inversion of the usual fight for language rights within Canada, wherein French is most often the minority language. However, the reversal of the roles of English and French does not mean that they can be treated differently under the constitution, which aims to protect the rights of English and French speakers equally. Just as all children who have the right to be educated in French must be afforded the right to attend school, all children who have the right to an English language education must be treated the same. 

Directly looking at the rights entrenched in the Charter of Rights and Freedoms, it is evident that the proposed enrollment caps on English language institutions and instruction in Quebec is unconstitutional. If all citizens have the right to receive an education in their first language, the idea that one can cap the enrollment in certain language schools will force students to abandon their charter rights to receive an education. If there are more students who qualify for English education than there are spots for enrollment, the constitutional rights of these students to receive an English language education, if they so desire, are being violated. 

The Weight of Putin’s Arrest Warrant and What’s To Come

Natalia Lalin

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3 Prin.L.J.F. 49

On March 17, the international community was stunned by the significant move made by the International Criminal Court to issue an arrest warrant for Russian President Vladimir Putin and his Commissioner for Children’s Rights, Maria Lvova-Belova. The two are charged with orchestrating the systematic abduction and transportation of at least 6,000 children from occupied cities in Ukraine to Russia by means of re-education camps located throughout the country from the Black Sea all the way to Siberia, or through adoption by Russian families. Lvova-Belova herself even recently adopted a 15-year-old child from Ukraine. This act by the Court was the first form of international legal action taken in the context of the Russia-Ukraine War since its start in February 2022, and it is a symbolic acknowledgment of the gravity of the Russian government’s crimes and actions in this aggressive dispute. It is also particularly notable for condemning Putin, an acting leader of a world superpower. While he is not the first sitting head of state to be indicted by the International Criminal Court (referred to hereafter as the ICC), as three other leaders have been charged previously, it is the first time the ICC has taken this action against the leader of a Permanent Five member of the United Nations Security Council. Former heads of state Slobodan Milošević of Yugoslavia, Charles Taylor of Liberia, and Ratko Mladić of Bosnia and Herzegovina have all been previously indicted and tried at the Hague while in their positions of power. 

Despite all of this, it seems Russian officials are shrugging off the indictment. Kremlin spokesperson Dmitry Peskov proclaimed that “the very question itself is outrageous and unacceptable. Russia, like a number of other states, does not recognize the jurisdiction of this court, and therefore any of its decisions are insignificant for the Russian Federation from a legal viewpoint.” Further, a Russian Investigative Committee even opened up a retaliatory criminal case against ICC prosecutor Karim Khan and the three judges that made this judgment, claiming that their hostile actions were not just illegal, but also a purely political “attack on a representative of a foreign state enjoying international protection, in order to complicate international relations.”

Exploring the Legality of the Arrest Warrants

To better understand the origins of this debate on the legality of the arrest warrants, it is important to review the fundamentals of the ICC itself. The court was created through the Rome Statute, which the United Nations General Assembly adopted in 1998 to end legal impunity for the world’s most severe crimes. The court has official jurisdiction over cases involving genocide, grave war crimes, crimes against humanity, and crimes of aggression. Its jurisdiction is limited to the 123 countries which signed on to the Statute, totaling about two-thirds of the international community. This group famously excludes Russia, the United States, and China, amongst others. Even Ukraine is not a member country of the ICC at this time.

Nevertheless, this alone does not completely protect Putin or Lvova-Belova from the ICC’s reach: it only means Russia does not have to comply with the investigation. Nevertheless, if they were to travel to any of the countries party to the Rome Statute, the countries would be obligated to arrest them and hand them over to the ICC, where they would then be tried for their crimes at The Hague. 

 The charges have legal footing because Putin and Lvova-Belova are being accused of breaching the Genocide and Geneva Conventions, which Russia actually has signed onto. According to Article 49(1) of the Fourth Geneva Convention, the “forcible transfer or deportation of civilians, including children, is prohibited.” If given a chance, the ICC will prosecute Putin for his direct or joint involvement in these acts under Article 25(3)(a) of the Rome Statute or his failure to exercise control over subordinates who committed these acts under Article 28(b) of the Rome Statute. On the other hand, Lvova-Belova will only be prosecuted for the first accusation of involvement under Article 25(3)(a). While the ICC does not employ the death penalty, the penalty for these charges may include a life sentence.

While these crimes are currently categorized as war crimes, some speculate that they could eventually amount to crimes against humanity or even genocide, depending on Russian intention. The case would be very different if the children were transported to keep them safe rather than if Russia transported them in an attempt to wipe out the next generation of Ukrainians, as some claim. 

Feasibility of Actually Seeing Putin Behind Bars

The legality of these charges and the feasibility of a trial in the near future are two different things, mainly because Putin and Lvova-Belova cannot be tried in absentia. The ICC also has no real enforcement mechanism or police force to arrest them. So, if they are to be tried, the ICC is entirely dependent on other countries to hand them over. Otherwise, the trial will not happen. This reliance on catching Putin and Lvova-Belova while they are traveling internationally decreases the possibility of prosecution ever happening because the geographic borders of where they can and cannot go are so explicitly defined. Presumably, Putin would not be so foolish as to travel to a country where he knows he will be immediately handcuffed. This situation is also unprecedented because every other comparable case has involved a sitting head of state of a country that was a member of the ICC. Ultimately, given the implausibility of either Putin or Lvova-Belova facing real legal punishment, I believe that these indictments are key more so in their symbolism than in their potential to convict Russian leadership. 

However, it is important to note that even if they are primarily symbolic in nature, these arrest warrants have major potential to effect tangible change. First of all, the nature of the ICC’s decision to make the announcement public is effective on many levels, especially since the institution does not normally publicize arrest warrants to protect its investigations. Nevertheless, this decision to go public seemed to differentiate this case from the traditional procedure in an effort to deter the progression of the Russia-Ukraine War. Internationally, the ICC is declaring its intent to hold Russia accountable through this and potentially future charges, despite this country’s power. These future charges may be related to aerial bombardment campaigns or attacks on hospitals and other forms of civilian infrastructure, for which Russia must answer. Minimizing Putin’s geographic borders by limiting which countries he can travel to may also make it more challenging to conduct diplomatic affairs and matters of the state. Domestically, the public announcement was a strategic move to instill fear in subordinate Russian officials who were implicit in this and other harmful acts. They may now express more resistance knowing that they too can be charged for grave war crimes, just as Lvova-Belova has been. This also could affect the Russian public by making them aware of the exact tactics being used by their government, which could drum up domestic opposition to the war. 

More broadly, these arrest warrants have also reinvigorated conversations around the US’s lack of involvement with the ICC. It may even make other powerful countries reconsider their choice not to partner with the international institution if they really do want to see international justice realized. It also warns other human rights violators, like China, that their actions will not go unnoticed. Globally, these arrest warrants seem to have potentially increased the ICC’s credibility at a time when it was nearing a legitimacy crisis which could be definitively marked, amidst many years of debate, by the decision of the African Union in 2017 to explore the concept of collectively withdrawing from the institution. Nevertheless, in light of the ICC’s willingness to take such a strong stance against a powerful country and a war that has affected the entire international community, perhaps these countries will reconsider.  

Concluding Remarks 

In conclusion, despite the debate around the legality behind Putin’s arrest warrants and claims by Russia that the ICC is illegitimate in its actions, it is seemingly more legitimate than ever. Unfortunately, due to the limitations of the Court, it seems unlikely that we will see Putin behind bars anytime soon; however, these arrest warrants were necessary for sending a message to Russia and initiating the often lengthy process required for international justice. As stated by Payam Akhavan, a former UN Prosecutor, “We have to bear in mind that although the famous expression is that oftentimes justice delayed is justice denied, in international criminal justice, justice delayed very often is justice delivered because those in power today may not be in power tomorrow.” Hopefully, in due time, the world can look back at Putin’s arrest warrant as the catalyzing legal action that delivered widespread justice to the Ukrainian people and the world at large.

Man v. Machine: Social and Legal Implications of Machine Translation

Cecilia Quirk

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3 Prin.L.J.F. 8

Introduction

In a predominantly English-speaking country such as the United States, it can be easy to take for granted the essential relationship between the arts of law and translation. Yet, as David Bellos notes in Is That a Fish in Your Ear?: Translation and the Meaning of Everything, legal texts are translated in much greater quantities than typical literature, and interestingly, in more complex and various directions. Not only is the translation of law from one language to another “a prerequisite for the construction and maintenance of a global society,” as Bellos puts it, legal writing is already an act of translation in and of itself. Law in English, for instance, isn’t really English at all anymore; legal language often takes on different connotations from common parlance and is frequently an amalgamation of clearly non-English terms. The self-referential and essentially enclosed language of the law is what leads Bellos to conclude that it is inherently untranslatable, though by necessity the object of much translation. 

As the future of legal translation undoubtedly lies–at least in part–in machine translation (MT), there is potential for valuable increased efficiency as much as costly detours: instances of “getting lost in translation.” In order to understand what increased adoption of MT means for the legal world, particularly in the United States, it is important to look back on the history of US Legal Translation, to look across the Atlantic to the complex yet streamlined translation infrastructure practiced by the European Union, and look to the future as cases regarding MT use at our southern border are beginning to cause courts to consider the implications of MT on consent.  

US Legal Translation 

Louisiana

Even before the enhanced globalization of the 20th and 21st centuries, the United States, perhaps surprisingly, already had a rich history of legal translation, particularly in Louisiana. In fact, Louisiana’s first constitution was written in French before it was translated to English, although it held that both versions had equal authority. This system of enacting English and French laws of equal authority remained in place for 35 years until the state’s second constitution, in 1845, held only English law to be official in the future as Lousianna became a state. For this reason, the Civil Code of 1870 appeared in only English, though the issue of conflicting translations remained. Conflicts in translation can arise for numerous reasons: from outright mistakes, ambiguities arising from the structure of a language, or from the fact that  there often is no such thing as a perfect match from one word to another between languages (Bermann 91-93). For instance, Shelp v. National Surety Corporation, a case regarding whether a lessor was obligated to repair doors on his leased property, dealt with a discrepancy between the Article 2716 of the Civil Code of 1870, which appeared only in English, and its parallel in the French-language provision of the 1825 code: 

“The repairs which must be made at the expense of the tenant are those which, during the 

lease, it becomes necessary to make … [notably] to windows, shutters, partitions, shop 

windows, locks and hinges, and everything of that kind, according to the custom of the 

Place.”

The 1825 French version, however, had included portes (“portes, croisees, planches de cloison et de fermeture de boutique, gonds, tarjettes, serrures et autres, suivant l’usage des lieux”), which did not make its way into the English version. While doors could have been reasonably construed as belonging to the category of things mentioned in the English version, the court came down on the side of the lessee on account of the greater authority of the French original text. According to the court, while English-language law was to be generally dispositive, the French version of the 1825 code was authoritative because the Civil Codes of 1808 and 1825 were enacted in French before being translated into English. The decision to honor the French original was especially validated since, as the state Supreme Court found, “the English translation of the French text of the Civil Code of 1825 and, for that matter, the Code of Practice of 1825, was spectacularly bad.” The Court also quoted from Edward Dubuisson in the decision: 

“Even where the translations do not contain misleading errors, the vigor, the spirit, the 

clarity and finish of the originals are lost in the translation.”

If a team of human translators, even while producing an error-free translation, miss “the vigor, the spirit, the clarity and finish of the originals” how can we expect MT to capture these expressly humanistic qualities of legal writing?

Consent

Moving beyond the not inconsequential aesthetics of “vigor” and “finish,” research has found that MT use in high risk settings such as court and legal proceedings, despite its intention to enhance accessibility, can exacerbate existing inequalities. For instance, two recently reported cases revolved around US transport police officers using Google Translate to gain the consent of Spanish-speaking individuals to search their vehicles. Both cases resulted in the officers charging the individuals with a crime after finding illegal substances in the vehicles; however, the use of Google Translate to gain consent was challenged in court as an insufficient method of overcoming the language barrier, to differing degrees of success. In one case the motion was dismissed, yet in the other, the evidence was suppressed. These cases highlight both the lack of uniformity with which courts address issues of MT and consent as well as the pressing relevance of MT. 

While there is a mixed awareness of MT technology for legal use, states with significant Spanish-speaking populations such as New Mexico have begun to consider the technology more thoroughly. As Vieira et al. find, “The state court of New Mexico is an example of an institution that has considered MT in more detail. It has a track record of appointing non-English-speaking jurors and has provided MT use guidelines in relation to these appointments. The guidelines state that unedited MT should not be used for materials expected to fulfill a formal role, for example in court proceedings or as exhibits.” As MT only promises to become more prevalent in legal proceedings, it is important that these and other solutions, as will be discussed below, are carefully considered by the courts. 

Business

Another incredibly important realm of legal translation is that of business contracts, particularly in the case of US-China deals and translations, where the source and target languages are markedly different. If there is an ambiguity or a lack of a clear match in the target language, the translator may have to choose, and thus limit unbeknownst to the reader, a facet of the original meaning. According to Torbert, an expert in this field, “Even if translators can convey the ambiguity in the Chinese target-language document, a Chinese reader may interpret the ambiguity differently from the reader of the English source-language document. As a result, ambiguities can lead to serious misunderstandings.” To give an idea of the pervasiveness and seeming inescapability of such ambiguity, Torbert organized Chinese source language ambiguities into a daunting list of categories: singular or plural, verb tense, inclusion or exclusion in numbers and dates, conjunctions, abbreviations and English source language ambiguities into nouns and pronouns, prepositions, conjunctions, synonymous adjectives, adjective and adverbial phrase modification, negation, and post-modification. To provide an example of post-modification, for instance, Torbert details that 

“For example, in the English translation of the Catalogue Guiding Foreign Investment in 

Industry, an entry in the ‘encouraged’ category states ‘apparatus, instruments, and 

machines for cultural and office use in the manufacturing industry.’ The ambiguity is whether the phrase ‘for cultural and office use’ modifies only “machines” or ‘apparatus, 

instruments, and machines.’ In the original Chinese text, the phrase precedes ‘machines,’ 

so it clearly modifies only ‘machines’.” 

These ambiguity-inducing linguistic elements are clearly essential to legal writing. The answer then lies not in avoidance, but awareness, something that must apply to MT as well, but is arguably more difficult to get a machine to appreciate algorithmically.  

European Union

Beyond the scope of the US, the European Union’s parity system among its 24 official languages, in which each language version carries the authority of an original and no document is released until all translations are complete, is possibly the most impressively scaled feat of legal translation with 552 bilateral combinations. Because translation is not only cross-linguistic, but cross-cultural, additional issues arise in that the legal systems of EU member states themselves don’t align exactly, making perfect translation matches impossible. Furthermore, negotiations of course must occur in a language, creating an essential asymmetry and subtle prioritization of official and working languages. Perhaps filtering negotiations through the black box of MT, rather than the “procedural” languages of English, French, and German, could prevent this prioritization, yet in its current state, such technology would almost certainly obscure to some degree both meaning and the essential human to human understanding, even trust, that is necessary for successful negotiation.

Social Implications of Machine Translation

Law, clearly in the case of the US and more globally, has been translated and trans-linguistically negotiated more or less sufficiently over the years out of strict necessity. The laborious task of translating and negotiating terms, on a semantic as well as legal level however, is far from efficient. In order to save time and money, many firms may refuse cases brought up by a non-English speaker; or in cases where firms accept such cases, the additional time and money spent finding a translator and generating appropriate translations of documents often proves to be an unfeasible financial burden on the non-English speaker, which is especially detrimental if he or she is of an already marginalized class. In an effort to alleviate these financial burdens, speed up the process, and improve accessibility of legal services, some firms have turned to MT; however, MT is accompanied by its own set of significant advantages and disadvantages. The specialized even idiomatic vocabulary, the self-referential nature of legal texts, and the context dependent connotations of words differing from normal use are not only key components of legal writing but are also exactly the areas in which MT services such as Google Translate, which is trained on an enormous corpus of which legal texts make up only a fraction, are least accurate. For this reason, legal-specific MT software has emerged, yet its increased accuracy also comes with the risks of hyper specialization, as translation software designed for one sector of the law will lose accuracy if applied to another, and lessened accessibility, as subscription models are used to provide the revenue to train and maintain such specialized models, unlike free services such as Google Translate. 

Legal Implications of Machine Translation

Between 1980 and 2000, while the US population increased by 25 percent, the number of Americans speaking a language other than English at home nearly doubled. Thus, the malpractice issues posed by lawyers dealing with non-English documents are more relevant, but also with the growth of MT technology, potentially more addressable than ever. While there is a precedent for regulating interpreters in court, no such thing exists for translators or translation systems as of yet. Investing in machine translation software has recently proven to be more efficient, both in terms of saving time and money, than hiring human translators, yet the issue arises that lawyers are unable to verify accuracy of output themselves and are likely unaware of or even unlikely to understand the exact complexities of machine translation software behind the user interface. In addition to the dangers of a blind reliance, use of some MT systems such as Google Translate can also breach client confidentiality, sharing client information or data with the MT provider. Furthermore, consequences of poor translation can be detrimental to individuals as well as court systems more broadly: For instance, in the mid 1900s a mistranslation of some German phrases in a European Court of Justice judgment ultimately resulted in over 200,000 suits being inappropriately filed in German courts. 

In her discussion of potential malpractice issues arising from MT use for preparing legal documents, Wahler cites the 1932 T.J. Hooper case which held the defendant responsible for damages resulting from tugboats lost in a storm for failure to equip them with proper radios as precedent that under the standard of care sufficiently available modern technology can be reasonably expected to be employed. Thus, as non-English speaking individuals have a right to gain representation and understand their case proceedings as enabled by translation, lawyers have a responsibility to make use of modern technology as safely, effectively, and informedly as possible. 

Solutions

While the impacts of MT in legal translation, and human-conducted legal translation more broadly, are undoubtedly far reaching, from challenging consent to enhancing accessibility to expediting business proceedings, clear and necessary solutions, as Whaler advocates, include increasing regulation of translation providers, as is the case for interpreters and is substantiated by President Carter’s 1978 Court Interpreters Act, promoting a hybrid model of initial MT then review by a human translator, and certifying law-specific machine translation services for enhanced accuracy and confidentiality.  

In the specific English-Chinese business translation realm, Torbert suggests back translations, or memos highlighting preexisting ambiguities, and comparing the lengths of paragraphs to check for obvious additions or omissions (Chinese texts are typically three-quarters the length of English texts). Offering a front-end, pre-translation solution, Torbet also suggests that “English speakers can help their translators by writing precise and unambiguous English. These extra steps can be time-consuming, but they can save foreign businesspeople from spending even more time and money dealing with the serious consequences of unintended misunderstandings” (53). Although certainly useful in a business context, these solutions don’t scale across all translation issues in the US, indicating a need for categorized regulation based on the type of litigation. 

Other solutions include adopting ABA’s recommendations regarding translation, specifically Standard 7 drafted by ABA’s Standing Committee on Legal Aid and Indigent Defendants: 

“To ensure quality in translated documents, courts should establish a translation protocol that includes: review of the document prior to translation for uniformity and plain English usage; selection of translation technology, document formats, and glossaries; and utilization of both a primary translator and reviewing translator.” 

Notably, this recommendation recognizes the reality of machine translation, the need for human review, and the benefits, when applicable, of drafting the English original in a more easily translatable form, or at least identifying potential problem areas, which  Torbet argues for as well. Additional steps to ensuring a more equitable use of MT in legal circumstances include requiring consent forms in the speaker’s first language before using Google Translate to protect client confidentiality, requiring some degree of education for lawyers regarding translation and machine translation services, developing an agency to regulate MT use in the law, and requiring proof of human translator review. As the world becomes more globalized, multilingual, and technologically advanced, the issue of machine translation and the law will only continue to grow in relevance. 

Robert Frost remarked that “poetry is what gets lost in translation;” we have a responsibility to ensure that legal meaning, that individual rights are not lost in translation as well. 

The False Reality of Foreign Neutrality

Justin Murdock

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3 Prin.L.J.F. 1

Abstract

As the Russian juggernaut ravages through Ukrainian cities and civilians and eastern European democracy proves to be dire in the alarming crisis, American intervention without provoking an all-out nuclear war seems like a must. However, given that the United States is currently at peace with the aggressor, Russia, as per the Neutrality Act and corresponding penal statutes in Title 18, individual citizens cannot engage in acts of aggression. There is one caveat that must be urgently addressed: the geographic boundaries of conscription, organization, and intervention. Under current laws, military intervention can be undertaken by U.S. citizens beyond U.S. borders, leading to potential issues such as the shattering of neutrality and escalation of the war. Through examination of the statutes’ texts and applications in foreign affairs and historical cases, this piece concludes that the distinction between conscription domestically and abroad must be prohibited to ensure that neutrality is genuinely preserved in our modern day. 

Background

The Neutrality Act of 1794 and corresponding US Penal Code, known together as Title 18, outline the sorts of intervention individual actors from the United States can take in a foreign conflict. These two statutes date back to the founding of the  nation and were particularly relevant in regards to European militias during the 1790s. Given Putin’s bellicose crackdown on Ukraine, however, the relevance of these laws has resurfaced in the context of modern volunteers. While the Neutrality Act of 1794 has been reenacted and amended multiple times to clarify the associated penalties and breadth of its jurisdiction, it effectively lives on in 18 U.S.C. § 960. 

Three statutes in the Penal Code are of particular importance regarding relevant action modern peacekeeping conscripts can take: 18 U.S.C. § 958, 18 U.S.C. § 959, and 18 U.S.C. § 960. The first involves accepting commission on U.S. soil against a foreign polity who is at peace with the U.S.—in this case, Russia. The second involves enlisting in the service of a foreign entity on U.S. soil, which is irrelevant to whether the respective foreign force is at war. The third involves furnishing and organizing money for foreign militaries on U.S. soil in conjunction with participating in an expedition from the United States, which is an adaptation of the statute’s first rendition under President Washington’s Neutrality Act. While Congress certainly can and should give a firm position on U.S. military intervention in foreign operations, the distinction between foreign and domestic recruitment, organization, and fundraising of the Neutrality Act should be repealed given the fallacy it provides abroad. Determined militants may take steps on foreign territory to effectively make it null and void. 

Legal Bases

The three statues in the Penal Code have gone through multiple trials and errors throughout events involving foreign militias—from the founding of the statute during the Revolutionary War to the recent applications in Operation Gideon in Venezuela and the Gambian coup d’état attempt. Title 18 is undoubtedly key to the integrity of American foreign policy, and by no means does this argument seek to diminish its past or present importance. After all, armed citizens with a desire to overthrow foreign powers for the sake of alleged domestic peacekeeping would throw the international system into anarchy; as such, penalties must exist to keep ambitious militants in check. That said, the exception regarding American military actors outside U.S. turf could allow belligerents to evade prosecution and retribution as per 18 U.S.C. §§ 958-60. These laws cite people susceptible to prosecution as “any citizen of the United States who, within the jurisdiction thereof,” or “whoever, within the United States,”—meaning, technically signing up outside U.S. soil would be legal. Regardless of the neutrality laws, would signing up to participate in a foreign conflict (that the U.S. has stated neutrality on) outside U.S. soil make a difference? Yes. On principle, would signing up violate this neutrality? Yes—it has, and it will regarding the Russo-Ukrainian War. 

The Penal Codes have been put under scrutiny regarding certain hostilities and instances of foreign intervention. Notably, Gayon v. McCarthy (1920) set forth a clarification that the furnishing of funds on U.S. turf would be sufficient to prove a violation of the Neutrality Laws. Additionally, under United States v. Murphy (1898), “military enterprises” composed and premeditated on U.S. land are grounds for violations once more. While these laws address the issues of their respective times, our increasingly-digitized world makes cyber-conscription and other means of advocacy for belligerent forces significantly easier for civilians—with boundless websites and outlets for recruitment abroad. For example, the laws present issues with digital conscription with acceptance under Sec. 958 and enlistment in Sec. 959. Additionally, though Sec. 959 has addressed the arrangement of payment, one must consider pro-bono work or payment received through non-governmental organizations representative of civilians.

Due to the specific language set forth in these laws, breaking neutrality in a way that conflicts  with U.S. foreign policy is a criminal act. Essentially, one can avoid this criminalization by launching a private war, sparking a coup, or fostering a bellicose political movement if such conscription and organization occurs outside the United States. In essence, however, they are non-neutral representatives of the United States. If a warmongering veteran joins a brigade in Ukraine on Ukrainian turf, brandishing an American patch and rifle, Russian corps will not know of American neutrality laws or assume that America is merely neutral in this crisis. While one can certainly believe that Putin’s heinous, excessive, and certainly unwarranted campaign should be denounced and chastised, one simultaneously needs to consider the Pandora’s box the Neutrality Act leaves open for alleged freedom fighters.  

Conclusions

Given the review of the vague terms set forth in various aspects of American penal law, and precedents set in case laws related to such statutes, this paper calls for the repeal of the Neutrality Act’s domestic and foreign conscription nuance. Thus, the Justice Department must eliminate the distinction, thereby banning foreign intervention, or be firm in support of civilian aid. Obviously, the former could potentially escalate, drawing all of NATO into the conflict, meaning the evident choice would be the latter.
The involvement of U.S. troops would dangerously escalate the crisis, and the burden set forth in the Neutrality Act does not help with independent U.S. conscripts dodging the restrictions and engaging militarily with Putin’s forces. As proven in past military operations, whether it be the conflicts in Afghanistan, Iraq, Syria, or even Ukraine itself in 2014, these volunteers often prove to be untrained extremists zealous for bloodshed and martyrdom. While de-escalation of the crisis and retribution of the autocratic Russia are a necessity, the Neutrality Act should not be the venue for passionate Americans to do so and should urgently be repaired to avoid military escalation. This statute constitutes a false reality of foreign neutrality, ready to implode with unforeseen military consequences.

How Long Will China’s Animal Cruelty Laws Have to Wait?

by Leyuan Ma

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2 Prin.L.J.F. 13

Background

In April 2020, a university student in China’s Shandong Province was expelled from school after videos of him mercilessly torturing and murdering over 80 stray cats surfaced on the Chinese internet; in October of the same year, a man from Shanxi Province poured boiling water over a pregnant cat, killing her and four unborn kittens; in November 2021, a pet dog was brutally killed by health workers while its owner was in quarantine for COVID-19. Numerous incidents of animal cruelty like these have surfaced in China in recent years. In response, more and more Chinese citizens are calling for stricter protection of animals and the promulgation of robust animal cruelty laws. Though animal welfare legislation is still a somewhat controversial subject in the country, a 2020 vote launched by CCTV News (a Chinese state-owned broadcaster) on Weibo (a Chinese social media platform) shows that the demand for a national anti-cruelty law is overwhelmingly strong: on the question of whether China should pass legislation against animal cruelty as soon as possible, among the 299,000 participants, more than 280,000 voted yes.

However, despite popular support for animal cruelty laws, certain procedural obstacles in China’s legislative system make it implausible that China will introduce comprehensive legislation on animal protection in the near future.

Currently, there exists only one nationwide law on animal protection in China: the Wild Animal Protection Law. Adopted in 1988, it only provides protective measures for certain precious or endangered species of wildlife such as pandas, pangolins, and snub-nosed monkeys. Though some efforts have been made toward guaranteeing animal welfare (e.g., the 2005 Livestock Law, which regulates the treatment of livestock during breeding, trade, and transportation), there still exists a large gap in animal protection legislation.

In late 2009, a team of legal scholars published an expert draft of an Animal Cruelty Law of China. The first of its kind in China, the draft law mainly included specific anti-abuse protections for wild, economic, companion, lab, and other types of work animals. It defines “abuse” as “intentionally inflicting unnecessary pain and injury on animals, or killing animals, by cruel means or methods,” and those who violate the law could be sentenced to a fixed term of imprisonment for up to three years. If the law were enacted, it would mark a great advancement for the animal welfare cause in China. But twelve years after the publishing of the draft proposal, there is still no word of it being made law. Why is this so?

Legislative Process and Procedural Obstacles

To understand the obstacles facing animal cruelty legislation, a rudimentary grasp of the legislative process in China is necessary. National laws are promulgated by the National People’s Congress (NPC, the national legislature of China) or its Standing Committee. In general, most legislation goes through a basic agenda-setting process: a proposal for legislation is first drafted, usually by ministry staff or NPC delegates, and then formally submitted to the State Council or NPC. After reviewing the hundreds of proposals submitted, the Legislative Affairs Office (LAO, now a part of the Ministry of Justice) and the Legislative Affairs Commission (LAC, a bureau under the Standing Committee), together lay out government policy priorities with respect to the proposed laws. Once these priorities are approved by the State Council, the LAO and LAC publish an annual legislative plan. A regulation or law on the plan is then finalized and promulgated, and finally forwarded to the President of China for signing into law. The amount of time it takes a law or regulation to pass through China’s legislative process can vary enormously, ranging from six months for the Food Safety Law to 15 years for the Antimonopoly Law to pass. Essentially, delays can occur in any part of the process, as a legislative item can stall if it is not yet a priority, if it is controversial, if the political mood changes, or if the involvement of various interest groups increases or decreases.

In the case of animal cruelty legislation, the problem currently lies at the second stage–– the laying out of government priorities by the bureaus under the NPC and the State Council. The expert draft of the Animal Cruelty Law was sent to the Chinese Central Committee and the Standing Committee of the NPC well back in 2010, but it has still yet to be included in the legislation plan of the NPC. 

In March of this year, during The Fifth Session of the Thirteenth National People’s Congress, Deputy Zhu Lieyu once again submitted a proposal for an animal cruelty law, the fifth time he has done so during his tenure as a delegate. He believes that “the lack of relevant laws and regulations on animal cruelty and punishment in [his] country” makes it extremely difficult for “actions of animal cruelty to receive due punishment.” Zhu Lieyu’s most recent proposal has prompted renewed attention to the problem of animal cruelty in China, and his priorities reflect the wishes of many Chinese citizens. Even so, due to the reluctance of officials in the State Council and LAC to prioritize animal anti-abuse laws, we are left still waiting for the legislative process to start.

Reasons and Possible Procedures

Many people might wonder why legislators have failed to make animal protection a legislative priority. I believe the answer is a combination of considerations regarding the necessity of animal protection laws and cultural differences between China and Western countries. 

In a reply to NPC deputies’ request for anti-cruelty laws in 2020, the Ministry of Agriculture and Rural Affairs explicitly stated that “at present, most acts of cruelty to animals can be adjusted through existing laws and regulations, and many departments such as public security are cracking down on related illegal and criminal acts. Cruelty to animals in social life is only a rare phenomenon […] It is not necessary to formulate a special law for this rare violation of morality.” They cited that, for instance, the Livestock Law of 2005 guarantees the welfare of livestock, and the revision of Article 26 of the Wild Animal Protection Law in 2016 regulates practices in the artificial breeding of wild animals.

However, some experts still argue for a more systematic and comprehensive set of regulations. Though modifying existing laws such as the Criminal Law might be faster and more efficient than procuring a new animal cruelty law, the current regulations on the treatment of companion animals and stray animals are still relatively vague. Yet, there are still others who believe other legislations are of higher importance and that the protection of animals should wait. While the answer to this debate on priority is not yet clear, the only thing we know for sure is that the debate itself will delay the legislative process and stall hopes for a new animal cruelty law anytime soon. 

Of course, one must also take into account China’s unique social and cultural environment. China has a long history of animal utilization, and there are many industries engaged in animal production, processing, and utilization. Due to huge demands and limited land resources, improving the welfare of farmed animals would incur considerable costs for running animal farms and would raise meat prices significantly. Cultural differences within China regarding the treatment of animals could also be difficult to eliminate. For instance, many parts of China still have the tradition of eating dog meat, and dogs only became common household pets beginning in the late 20th century. Every year the notorious Yulin Dog Meat Festival takes place in Guangxi province, where people kill and eat tens of thousands of dogs to celebrate the summer solstice. Though this might seem appalling to most people, a considerable number of Chinese people still adhere fiercely to this tradition. Comprehensively improving the level of animal protection will surely be an arduous systematic task that requires the joint efforts of the whole Chinese society. This task is complicated by Chinese society’s lack of uniformity regarding the proper treatment of animals. 

Conclusion

In short, though the animal protection cause has garnered increased attention and support over the past decade, it is unlikely that China will enact animal cruelty legislation in the near future. However, there is hope that anti-cruelty stipulations will be added to existing legislation, and thus gradually increase the welfare of animals in China. As China’s level of social and economic development improves and anti-cruelty becomes a social consensus, we should remain optimistic that the prospects for a robust animal protection law will also improve in the coming years.