Economic Cooperation with North Korea: Could It be Possible?

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2018 has been an important year for the Korean peninsula. With North Korea accepting South Korea’s invitation to the 2018 Winter Olympics and South Korea and the United States holding summits with North Korea, the era of President Obama’s strategic patience has arguably ended. As ties between North Korea and South Korea thaw, evidenced by the suspension of certain military exercises and the beginnings of the actual demilitarization of the DMZ, South Korea, under the Moon Administration, is looking into starting economic projects with North Korea. Specifically, the Moon Administration seeks to invest in North Korean infrastructure, such as roads and railways, so as to ease the cost on South Korea were a reunification with North Korea to happen, and so that South Korea can preserve the recent positive changes made in South-North Korean relationships. However, there are many barriers to an economic partnership between North and South Korea, the biggest arguably being United Nations Security Council Resolution 1718, which imposed sanctions on North Korea in response to the North Korean October 2006 nuclear test. These sanctions ban North Korea from trading, not only in arms, nuclear technology, financial services, and fuel, but also seafood and textiles. Economic projects, especially those aimed at rebuilding North Korean infrastructure, could potentially violate those sanctions. Another barrier is the US’s current stance when it comes to dealing with North Korea. Despite the opening of a dialogue with North Korea, the US has insisted on strong sanctions against North Korea until it embraces denuclearization. As the US is not only a prominent player in international politics, but also plays a major role in...

The U.S. Supreme Court Considers What Constitutes Proper Service on a Sovereign Nation

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On November 8th, 2018, the Supreme Court of the United States heard oral argument in Republic of Sudan v. Harrison, a case on appeal from the United States Court of Appeals for the Second Circuit. The Supreme Court granted the petition of writ of certiorari to resolve a circuit split on whether service of process to an embassy is sufficient when a foreign state is a party to a lawsuit. Under 28 U.S.C. § 1608(a) service on a foreign state can be rendered in a number of ways, among them, “by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.” In October, 2000, the U.S.S. Cole was destroyed by Al-Qaeda; 17 American Navy sailors were killed and 42 were injured. In 2010, some of the injured sailors and their spouses filed suit against the Republic of Sudan (“Sudan”) in the United States District Court for the District of Columbia. The plaintiffs brought suit under an exception in the Foreign Sovereign Immunities Act (“FSIA”), which authorized a federal cause of action for victims of “state-sponsored terrorism.” (28 U.S.C. § 1605(a)). The plaintiffs alleged that Sudan had provided material support to Al-Qaeda. The Clerk of the Court served Sudan by sending the summons and complaint to the head of Sudan’s Ministry of Foreign Affairs, which was sent via certified mail to the...
New Rules for Asylum Seekers

New Rules for Asylum Seekers

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The U.S. has sent about 8,000 troops to the U.S.-Mexico border in response to the migrant caravan traversing Central America. The executive branch has also made various changes to the U.S. asylum process, restricting asylum to those who apply at a legal port of entry. While troops so far have primarily been employed to reinforce official ports of entry, there are also many risks facing these troops.

European Court of Human Rights Upholds Fine Against Austrian Woman: Contextualizing A Free Speech Conviction

European Court of Human Rights Upholds Fine Against Austrian Woman: Contextualizing A Free Speech Conviction

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The ECtHR recently upheld the conviction of an Austrian woman under the country’s blasphemy law for statements she made accusing the Prophet Muhammad of pedophilia. Growing global anxiety over international organizations, and the Austrian law’s tension with free speech ideologies, made the decision a ready-made launching pad for political diatribe. Despite some outcry, the ECtHR’s decision seems unlikely to spark a wave of blasphemy convictions, either in Austria or elsewhere in Europe. While Austria’s criminalization of inciting “justified indignation” may be overly broad, it is not clear that the ECtHR’s decision will embolden blasphemy law proponents, and it does not appear to reshape the legal framework currently in place.

21st Century International Foundations for a 21st Century African Continent

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In recent decades, the emergence and development of international law has taken various shapes within the African continent. Most notably, states have begun reconstructing their legal regimes using regional organizations, aiming to create supranational entities that better represent their collective interests and aspirations globally. Amongst the numerous groups, no regional organization has been more successful than the Organization for the Harmonization of Business Law in Africa (“OHADA” – derived from the French translation). Embodying 17 member states, OHADA not only contributes to the making of international law within Africa, but plays a valuable role in its ongoing fruition. OHADA’s value can be showcased by its systematic effectiveness and singularity. Furthermore, OHADA’s legal achievements create pertinent opportunities in a region vying for a path forward. Firstly, OHADA’s framework maintains a distinct legal structure built on efficacy. Ever since its founding in 1993, OHADA focused solely on the field of business law and harmonizing such laws across mostly Francophone countries in western and central Africa. The 1993 Treaty split the organization into four bodies, with the Council of Ministers and Common Court of Justice and Arbitration (“CCJA”) being most significant. The former consists of Justice and Finance ministers of each member state who are charged with crafting Uniform Acts applicable to all members; the latter reserves the final say adjudicating on OHADA legal matters. The structure is unique amongst most African regional organizations because of how much power is delegated to OHADA’s institutions. Member states’ national legislatures have no input in the law-making process. Instead, states must abide automatically to each of the Uniform Acts following their promulgation. Likewise, the CCJA...

Women in Cybersecurity: an Interview with Judith Germano

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Judith H. Germano is a nationally recognized thought leader on cybersecurity governance and privacy issues and served more than a decade as a federal prosecutor.  In addition to founding GermanoLawLLC, she is also a Distinguished Fellow at the New York University Center for Cybersecurity and an Adjunct Professor at NYU School of Law.   First, would you start by describing the work GermanoLaw LLC does? GermanoLaw is a boutique law firm that specializes in cybersecurity, privacy, securities and other financial fraud, and regulatory-compliance matters.  We help companies navigate the significant and diverse challenges of preparing for and responding to cybersecurity incidents; represent companies and individuals who are targets or witnesses of federal investigations; and provide thought leadership through whitepapers, presentations and meetings. As the founder of GermanoLaw, what does your day-to-day work look like? Every day is different, which makes it all the more exciting.  Some days I am at a corporate client’s office working on cybersecurity issues; advising the executive leadership on cybersecurity policy and strategy; leading a tabletop exercise; or drafting policies, articles, a whitepaper or legal memoranda.  Other days I am arguing an issue in court; advising a client on criminal or regulatory-enforcement matters; conducting an internal investigation; preparing a witness for grand jury, civil deposition or other testimony; or negotiating a resolution to an investigation or dispute.  I also spend a portion of my time working with NYU as a Distinguished Fellow at the Center for Cybersecurity, an Adjunct Professor of Law at NYU School of Law and a Professor in NYU’s Master of Science in Cybersecurity Risk & Strategy executive education degree program.  Also, as...

The 2019 National Defense Authorization Act: Cyber Countermeasures as a Framework for Proportionality Beneath the Armed Attack Threshold

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Cyber operations are an increasingly ubiquitous mechanism for the conduct of statecraft, espionage, and warfare. Russian interference in American elections is one recent and prominent example of cyber interference. The John McCain National Defense Authorization Act (NDAA) for fiscal year 2019 includes several provisions on cyber operations, specifically addressing threats such as interference with elections. Section 1642 of the NDAA pre-authorizes the National Command Authority (the President and Secretary of Defense) to direct the U.S. Cyber Command “to take appropriate and proportional action in foreign cyberspace to disrupt, defeat, and deter such attacks” (emphasis added) in response to “an active, systematic, and ongoing campaign of attacks against the Government or people of the United States in cyberspace, including attempting to influence American elections and democratic political processes” conducted by Russia, China, Iran, or North Korea. However, proportionality in response to attempts to “influence American elections and democratic political processes” is unclear at this stage. In the context of cyber operations not crossing the armed attack threshold, proportionality is especially amorphous. For example, Russian election interference falls short of the armed attack threshold permitting the use of force in self-defense; however, election interference likely constitutes an “internationally wrongful act”—legally permitting U.S. countermeasures against Russia. The following explores the viability of countermeasures as a rubric for responses to cyber operations below the use of force threshold. Countermeasures are measures taken in response to an instigating state’s internationally illegal act, wherein the injured state takes an action that would otherwise violate an international legal obligation, the aim of which is to compel or convince the instigating state to stop its illegal behavior....
Inconsistent Concerns: The CEDAW Committee’s Differential Treatment of States Parties Regarding Article 6

Inconsistent Concerns: The CEDAW Committee’s Differential Treatment of States Parties Regarding Article 6

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The Convention for the Elimination of All Forms of Discrimination against Women (“CEDAW”) was adopted by the United Nations (“UN”) General Assembly in 1979. The language surrounding prostitution remains vague as the Convention merely creates obligations surrounding the exploitation of prostitution. In its review of Member States’ submissions regarding CEDAW compliance, the Committee has specified neither which ideological position nor which legal regime it supports. Rather, the Committee makes recommendations tailored to each specific country and its legal regime. An interesting tension arises in these reports: the concerns and recommendations are not consistent between Member States employing the same legal regime.

Regional Impacts of Bahrain’s Politics

Regional Impacts of Bahrain’s Politics

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Bahrain is a small country, whose political landscape has large implications for the Middle East. The next parliamentary elections will be held on November 24, 2018. Against the backdrop of these elections is the divide between the wealthy Sunni monarchy and the majority Shia population, which feels increasingly disenfranchised. Factors such as the power dynamics between Saudi Arabia and Iran and foreign intervention by Saudi Arabia have exacerbated tensions in the region, but it is not implausible to believe in the possibility of reconciliation. Shias must be allowed to shape their communities alongside their Sunni neighbors.

A Year Later: An Update on the Catalonian Independence Movement

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On Monday, October 1, 2018, over 180,000 demonstrators marched in Barcelona to mark the one-year anniversary of Catalonia’s fiercely contested 2017 referendum on independence from Spain. Ninety percent of voters in that referendum backed Catalan independence. However, the Spanish Constitutional Court suspended the referendum before it was held, and anti-independence voters largely abstained from the ballot. The referendum’s reported turnout was only 43 percent. In the subsequent weeks, the government in Madrid responded to Catalonia’s symbolic declaration of independence (on October 17, 2017) by triggering Article 155 of the Spanish Constitution and moving to suspend Catalan autonomy. Legal questions emerge and remain largely unanswered in the aftermath of the Catalonian independence referendum The resulting constitutional crisis, considered   to be Spain’s “largest political crisis since it began its transition to democracy in 1975,” has seen nine Catalan leaders held—with debatable legality—in pretrial detention. Several other Catalan civic leaders remain in a state of self-imposed exile. The chaotic state of political affairs surrounding Catalan independence since October of 2017 has raised a number of legal questions and presented some concerning answers, or lack thereof. For instance,   have argued that Madrid was guilty of using the European arrest warrant as a tool of political oppression in its attempted extradition of Clara Ponsatí, a Catalan academic and the former head of Scotland’s University of St Andrews’ School of Economics and Finance, on charges of rebellion and misuse of public funds. Spain eventually withdrew the arrest warrant on its own. However, it took a ruling from a German Court to declare that Carles Puigdemont, the former Catalan president, could not be extradited from...