New York International Law Review Fall 2020 (Vol. 33, No. 2)

VOL. 33, NO. 2 FALL 2020 NEW YORK STATE BAR ASSOCIATION Non Profit Org. INTERNATIONAL SECTION U.S. Postage One Elk Street, Albany, N. Y. 12207-1002 PAID Albany, N.Y. Permit No. 155

New York International Law Review

NEW YORK STATE BAR ASSOCIATION INTERNATIONAL SECTION frtpages-Fall2020.fm Page i Tuesday, March 16, 2021 3:36 PM

NEW YORK INTERNATIONAL LAW REVIEW

Fall 2020 Vol. 33, No. 2

NEW YORK STATE BAR ASSOCIATION INTERNATIONAL SECTION

© 2021 New York State Bar Association ISSN 1050-9453 (print) ISSN 1933-849X (online) frtpages-Fall2020.fm Page ii Tuesday, March 16, 2021 3:36 PM frtpages-Fall2020.fm Page iii Tuesday, March 16, 2021 3:36 PM

TABLE OF CONTENTS NOTES The International Labour Organization’s Convention on Violence and Harassment and its Potential Effectiveness in Expanding Legal Protections for Female Garment Factory Workers in Bangladesh and Cambodia ...... 1 Ellie Sage Sheinwald Disability and Immigration: The Trump Administration’s Public Charge Rule and International Disability Rights Law ...... 17 Heidi Simpson ARTICLES Wildlife As Culture: Using International Human Rights Law To Protect Global Biodiversity ...... 39 Tala DiBenedetto Reservations to the Convention on the Rights of Persons with Disabilities: Peer Engagement and the Value of a Clear Object and Purpose ...... 61 Ilias Bantekas RECENT DECISIONS Nahl v. Jaoude ...... 95 Danielle M. Heavey Petróleos De Venezuela S.A. v. MUFG Union Bank, N.A...... 101 Sean Johannsen Kraiem v. JonesTrading Institutional Servs. LLC...... 109 Matthew T. Callahan

The views and opinions expressed in the articles herein are those of the authors and do not necessarily reflect the opinions, policies, or positions of the New York State Bar Association or any of its constituent entities, including the NYSBA International Section. frtpages-Fall2020.fm Page iv Tuesday, March 16, 2021 3:36 PM frtpages-Fall2020.fm Page v Tuesday, March 16, 2021 3:36 PM

INTERNATIONAL SECTION Vice-Chair/CLE Neil A. Quartaro, Cozen O’Connor OFFICERS—2020–21 45 Broadway, 16th Fl. Chair New York, NY 10006-3751 Jay L. Himes, Esq., Labaton Sucharow LLP [email protected] 140 Broadway Vice-Chair/Publications New York, NY 10005-1108 Paul M. Frank [email protected] Bronxville, NY 10708-5917 Chair-Elect/CIO Vice-Chair/Cuba Edward Lenci, Hinshaw & Culbertson LLP A. Thomas Levin, Meyer, Suozzi, English & Klein PC Greenwich, CT 06831-4970 990 Stewart Avenue, Suite 300 [email protected] P.O. Box 9194 Senior Vice-Chair/Committees Garden City, NY 11530-9194 Gonzalo Salinas Zeballos, Esq., Baker Hostetler LLP [email protected] 45 Rockefeller Plaza Vice-Chairs/Diversity New York, NY 10111-0100 Mariana Eguiarte-Morett, Sanchez Devanny Eseverri, [email protected] S.C. Senior Vice-Chair/Chapters Av. De Las Palmas 525, Piso 6, Lomas de Chapultepec Mr. Carlos Ramos-Mrosovsky, Alston & Bird LLP Mexico City, Mexico 11000 90 Park Avenue [email protected] New York, NY 10016-1301 Kenneth G. Standard [email protected] Chappaqua, NY 10514-3725 Executive Vice-Chair/Finance Vice-Chair/Liaison w/ U.S. State Bar Azish Eskandar Filabi, Esq., The Maguire Center for Ethics International Sections in Financial Services Michael W. Galligan, Phillips Nizer LLP American College of Financial Services 485 Lexington Avenue, 14th Fl. 44 West 4th Street New York, NY 10017-2619 New York, NY 10012-1106 [email protected] [email protected] Vice-Chair/Liaison w/International Law Society Secretary Nancy M. Thevenin, Thevenin Arbitration & ADR Mrs. Ruby Maria Asturias Castillo, EY LAW, S.A. 87-37 164th Street, No. 2 5ta. Avenida 5-55 Zona 14, Europlaza WBC Torre 1, Nivel Jamaica, NY 11432-4013 7 [email protected] Guatemala, 01014 Vice-Chair/Liaison w/American Bar Ass’n [email protected] Mark H. Alcott, Paul, Weiss, Rifkind, Wharton Treasurer & Garrison LLP Lawrence E. Shoenthal, Esq. 1285 Avenue of the Americas, 28th Fl. 6 Dorothy Drive New York, NY 10019-6064 Spring Valley, NY 10977-1810 [email protected] Chair/Awards Vice-Chair/Liaison w/ International Bar Ass’n Paul M. Frank Carlos Ramos-Morosovsky, Alston & Bird LLP Bronxville, NY 10708-5917 90 Park Avenue, Vice-Chair/Awards New York, NY 10016-1301 Azish Eskandar Filabi, The Maguire Center for Ethics in [email protected] Financial Services Vice-Chair/Liaison w/N.Y. City Bar Ass’n American College of Financial Services Paul M. Frank 44 W 4th Street Bronxville, NY 10708-5917 New York, NY 10012-1106 Vice-Chair/Liaison w/Union of International Ass’ns [email protected] Pedro Pais De Almeida, Abreu & Associadios Vice-Chairs/Chapters Avenida Infante Dom Henrique 26 Marco Amorese, AMSL Avvocati Lisbon, Portugal, 1100-281 Via Zambianchi, 3 [email protected] Bergamo, Italy 24122 Vice-Chairs/Membership [email protected] Neil A. Quartaro, Cozen O’Connor Francois F. Berbinau, BFPL Avocats 45 Broadway, 16th Fl. 10 Square Beaujon New York, NY 10006-3751 Paris, France 75008 [email protected] [email protected] Jay G. Safer, Wollmuth Maher & Deutsch LLP Peter Bouzalas, Blaney McMurtry LLP 500 5th Avenue 2 Queen Street East, Suite 1500 New York, NY 10110-0002 Toronto, ON M5C 3G5, Canada [email protected] [email protected] frtpages-Fall2020.fm Page vi Tuesday, March 16, 2021 3:36 PM

NEW YORK INTERNATIONAL LAW REVIEW

Vice-Chairs/Special Projects-Rapid Response Jonathan P. Armstrong, Cordery 30 Farringdon Street, 2nd Floor London EC4a 4hh, UK [email protected] David P. Miranda, Heslin Rothenburg Farley & Mesiti, PC 5 Columbia Circle Albany, NY 12203-5180 [email protected] Vice-Chair/Sponsorship Neil A. Quartaro, Cozen O’Connor 45 Broadway, 16th Fl. New York, NY 10006-3751 [email protected] Vice-Chair/United Nations Filip Boras, Baker & McKenzie Schottenring 25 Vienna, Austria 1010 [email protected] Delegates to House of Delegates Azish Eskandar Filabi, Esq., The Maguire Center for Ethics in Financial Services American College of Financial Services 44 West 4th Street New York, NY 10012-1106 [email protected] Glenn G. Fox, Esq., Baker & McKenzie LLP 452 5th Ave New York, NY 10018-2706 [email protected] Diane E. O’Connell, Dianne E. O’Connell PLLC Brooklyn, NY 11232-1609 [email protected] Alternate Delegate to House of Delegates Neil A. Quartaro, Cozen O’Connor 45 Broadway, 16th Fl. New York, NY 10006-3751 [email protected] frtpages-Fall2020.fm Page vii Tuesday, March 16, 2021 3:36 PM

NEW YORK INTERNATIONAL LAW REVIEW Advisory Editorial Board Board Members Caroline Fish George K. Miller Joshua Alter Christina Tsesmelis Christina Corcoran Nishith M. Desai James P. Duffy IV Marty Flaherty Michael Galligan Alexander Greenawalt Robert Howse Kevin McCaffrey Mark Meyer Margaret McGuinness

2020–2021 Student Editorial Board St. John’s University School of Law

Editor-in-Chief Senior Staff Members Staff Members Gia Fernicola Michelle Artiles Stephanie Algarin-Santiago Managing Editor Heather Lewin Douglas Brady Theodore Ryan Nicholas Orbon Matthew Callahan Bridget Sheerin Michael Cavaliere Associate Managing Editor Spencer Sklar Matthew Finegan Edward Belotte Sarah Vinci Danielle Heavey Stephanie Weaver Raymond Iglesias Executive Notes and Comments Torrye Zullo Sean Johannsen Editor Tatehona Kelly Ryan Iglesias Thomas Larounis Executive Articles Editor Rebecca Pasternak Heidi Simpson James Pizzo Kristin Rainis Executive Research Editor Matthew Sulewski Ruben Huertero Nicole Teta Executive LLM Editor Matthew Vani Sadia Shamid Stephanie Zaferiou

Articles & Notes Editors Faculty Advisor Damyre Benjamin Professor Margaret McGuinness Baylee Vazquez Ellie Sheinwald Alumni & Events Editor Zachary Wagman frtpages-Fall2020.fm Page viii Tuesday, March 16, 2021 3:36 PM

INTERNATIONAL SECTION COMMITTEES AND CHAIRS

To view full contact information for the Committee Chairs listed below, please visit our website at www.nysba.org/ilp

Asia & the Pacific Region International Data Privacy & International Tax Ta-Kuang Chang Protection Pere M. Pons Lawrence A. Darby III Gerald J. Ferguson Stanley Charles Ruchelman Corey Omer James R. Shorter, Jr. Awards Paul M. Frank International Distribution, International Trade Sales & Marketing Robert J. Leo Central & Eastern Europe Drew R. Jaglom International Transportation Serhiy Hoshovsky Neil A. Quartaro International Employment Law Chair’s Advisory Aaron J. Schindel Latin American Council Gerald J. Ferguson Miriam R. Schindel Jorge Luis Arenales De La Roca Glenn G. Fox Alejandro Maria Massot Michael W. Galligan International Environmental Law Gonzalo Salinas Zeballos Neil A. Quartaro Mark F. Rosenberg Nancy M. Thevenin Andrew D. Otis Public International Law Margaret E. McGuinness Contract & Commercial Law International Estate & Mark A. Meyer Rekha Rangachari Trust Law Thomas Anthony Telesca Michael W. Galligan Seasonal Meeting Glenn G. Fox Mark F. Rosenberg Corporate Counsel Howard A. Fischer International Family Law United Nations & Other Rita Wasserstein Warner International Organizations Cross Border M&A International Human Rights Jeffrey C. Chancas & Joint Ventures Santiago Corcuera-Cabezut Laura Gheorghiu Alexandra Leigh-Valentine Piscionere Women’s Interest Gregory E. Ostling Networking Group International Insolvencies Diane E. O’Connell Foreign Lawyers Mark D. Bloom Meryl P. Sherwood Maria Tufvesson Shuck International Intellectual Immigration & Nationality Property Protection Jan H. Brown (International Patent Matthew Stuart Dunn Copyright & Trademark) Allen E. Kaye L. Donald Prutzman Eric Jon Stenshoel Insurance/Reinsurance Oren J. Warxshavsky Marc L. Abrams Matthew Ferlazzo International Investment Chiahua Pan Christopher J. Kula Lawrence E. Shoenthal International Antitrust & Competition Law International Litigation Jay L. Himes Jay G. Safer Patrick L. Krauskopf International Microfinance & International Arbitration Financial Inclusion & ADR Azish Eskander Filabi Julee Lynn Milham Carlos Ramos-Mrosovsky Nancy M. Thevenin International Privacy Law Lisa J. Sotto International Banking Securities & Financial Transactions International Private Restitution Eberhard H. Rohm Committee Teresa Rosen Peacocke International Corporate Compliance International Real Estate Carole L. Basri Transactions Aurora Cassirer Meryl P. Sherwood frtpages-Fall2020.fm Page ix Tuesday, March 16, 2021 3:36 PM

INTERNATIONAL SECTION CHAPTER CHAIRS To view full contact information for the Chapter Chairs listed below please visit our website at http://www.nysba.org/Intl/ChapterChairs

AFRICA FLORIDA PARAGUAY Janiece Brown Spitzmueller Constantine Philip Economides Nestor Loizaga Franco Thomas O. Verhoeven ARGENTINA PHILIPPINES Alejandro Maria Massot FRANCE Rico V. Domingo Francois F. Berbinau AUSTRALIA POLAND Timothy D. Castle GERMANY Anna Dabrowska Richard Arthur Gelski Anke Meier Szymon Gostynski

AUSTRIA GUATEMALA PORTUGAL Filip Boras Ruby Maria Asturias Castillo Pedro Pais De Almeida Dr. Otto H. Waechter INDIA QUEBEC BRAZIL Sanjay Chaubey Andre Durocher Caue Rezende Myanaki Helen C.C. Naves ISRAEL ROMANIA Ronald A. Lehmann Adrian Alexandru Iordache BRITISH COLUMBIA Donald R.M. Bell ITALY SINGAPORE Marco Amorese Sean La’Brooy CHICAGO Eduardo Ramos-Gomez Nabil G. Foster JAPAN Tsugumichi Watanabe SLOVAKIA CHILE Roman Prekop Francis K. Lackington KOREA SOUTH AFRICA CHINA LUXEMBOURG Daniel L. Morriss Jia Fei Ronnen Jonathan Gaito SOUTHERN CALIFORNIA COSTA RICA MAURITIUS Eberhard H. Rohm Eduardo Calderon Stephen V. Scali Fernando W. Vargas SPAIN MEXICO Clifford J. Hendel CYPRUS Santiago Corcuera-Cabezut Christodoulos G. Pelaghias Mariana Eguiarte-Morett SWEDEN Carl-Olof E. Bouveng CZECH REPUBLIC THE NETHERLANDS Peter Utterstrom Andrea Carska-Sheppard Bouke Anthonie Boersma Prof. Gerard J. Meijer SWITZERLAND DENMARK Patrick L. Krauskopf Daniel Emil Bang ONTARIO Ari Stefan Tenenbaum TAIWAN DOMINICAN REPUBLIC Ya-hsin Hung Jaime M. Senior PANAMA Alvaro J. Aguilar TEXAS EL SALVADOR David E. Harrell, Jr. Zygmunt Brett frtpages-Fall2020.fm Page x Tuesday, March 16, 2021 3:36 PM

THAILAND John Frangos

TUNISIA Mohamed Zaanouni

UNITED ARAB EMIRATES Sheila Shadmand David Graham Russell

UNITED KINGDOM Michael Bowes

URUGUAY Mateo Bervejillo Leticia Sofia Goni

VIETNAM Nguyen Hong Hai

WESTERN NEW YORK Christine A. Bonaguide Note - Sheinwald.fm Page 1 Tuesday, March 16, 2021 3:37 PM

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The International Labour Organization’s Convention on Violence and Harassment and its Potential Effectiveness in Expanding Legal Protections for Female Garment Factory Workers in Bangladesh and Cambodia

Ellie Sage Sheinwald*

Introduction

With the reckoning of the global #MeToo movement, women courageously have come forward to discuss their experiences of sexual harassment and violence in the workplace. Sexual aggressors have been thrown into the spotlight, putting pressure on society to shift power away from these men working within a variety of industries.1 This movement sparked a dialogue questioning how to hold such men accountable for their actions, how to eliminate gendered power norms in the workplace that fuel harassment and violence, and whether there are potential solutions that could be effectively and uniformly implemented throughout the world.2 The #MeToo movement, though, mainly serves as a vehicle for women with higher-wage jobs.3 As a result, a discrepancy formed between wealthier women and women with lower-wage jobs like garment workers; these women earning low wages are left without options to fight against sexual harassment and violence in their workplace.4

Female garment factory workers in poor states including, Bangladesh and Cambodia, face significant sexual harassment5 and violence in their workplace.6 A study completed in July 2019 “found that 80% of garment workers in Bangladesh have either seen or directly experi-

* Articles and Notes Editor, New York International Law Review, 2020–2021; J.D. Candidate, St. John’s University School of Law, 2021. 1. Deborah L. Rhode, #MeToo: Why Now? What Next?, 69 DUKE L.J. 377, 379 n.7 (2019). 2. Id. 3. Marissa Ditkowsky, #UsToo: The Disparate Impact of and Ineffective Response to Sexual Harassment of Low-Wage Workers, 26 UCLA WOMEN’S L.J. 69, 73–74 (2019) (“The divide between whom the law is intended to protect and whom the law protects in practice is not a new concept, particularly when discussing sex-based discrimination.”). 4. Id. 5. The ILO defines sexual harassment as “unwanted conduct of a sexual nature, or other conduct based on sex, affecting the dignity of women and men at work.” ILO REGIONAL OFFICE FOR ASIA AND THE PACIFIC, Action- oriented research on gender equality and the working and living conditions of garment factory workers in Cambodia, (2012) https://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---sro-bangkok/documents/publication/ wcms_204166.pdf [hereinafter 2012 ILO Report]. The ILO has declared that harassment is a form of discrimination. Id. 6. Andrew Gibbs et al., Workplace violence in Bangladesh’s garment industry, 235 SOC. SCI. & MED. 112383, at 2 (June 22, 2019) (“One study in Bangladesh in 35 garment factories amongst 658 workers, suggested that 60% of female workers had experienced physical, sexual and/or verbal harassment.”); Dorota Weziak-Bialowolska et al., The impact of workplace harassment and domestic violence on work outcomes in the developing world, 126 WORLD DEV. 104732, at 2 (Nov. 1, 2019). Note - Sheinwald.fm Page 2 Tuesday, March 16, 2021 3:37 PM

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enced sexual violence or harassment in the workplace.”7 These issues are often fueled by human resources practices aiming to reduce production costs and reach inflated production targets.8 Further, “[w]omen’s employment and visibility in public may be perceived as a threat to male dominance in society, and various forms of harassment of working women may be an expres- sion of retaliation by males.”9 Sexual harassment and violence also occur in factories because female workers are exploited by the inherent power dynamic of their workplace: men are usually managing the factories where women earn minimum wage or less.10 Some multinational companies introduced social audit programs into their garment factories to ensure that gender- based violence and harassment (“GBV”) was not occurring on their property.11 However, this method mostly failed since female workers remain fearful of employer retaliation.12 Although the GBV women face in factories and the existing ineffective preventive methods continue, the garment industry has not taken definitive steps to prevent or combat these wrongs.

The International Labour Organization (“ILO”), a United Nations (“UN”) agency devoted to setting labor standards and promoting decent work for all, recognized this discrepancy and used the #MeToo movement as its springboard to adopt the Convention on Violence and Harassment (“C190”).13 The ILO moved to adopt C190, a new set of labor standards to be implemented and enforced globally, following a 2009 International Labour Conference resolution recognizing the devastating impact GBV had on women’s dignity and safety in the workplace.14 This Convention specifically deals with GBV and acknowledges that GBV disproportionately affects women in the world of work.15 C190 is broad in its reach and scope, covering events occurring both inside and outside the workplace.16 C190 even includes interns, workers whose employment has been terminated, and job seekers as protected persons.17 This

7. Sexual harassment and violence against garment workers in Bangladesh, ACTIONAID (July 25, 2019), https:// actionaid.org/sites/default/files/publications/ActionAid%20briefing%20paper%20on%20Bangladesh%20 garment%20workers%20FINAL.pdf. 8. Gibbs et al., supra note 6. 9. Nidhi Khosla, The Ready-Made Garments Industry in Bangladesh: A Means to Reducing Gender-Based Social Exclu- sion of Women?, 11 J. INT’L WOMEN’S STUD. 289, 296 (Nov. 2009) (discussing the exclusion of women from supervisory roles within the ready-made garment industry in Bangladesh). 10. Gibbs et al., supra note 6. 11. Combating Sexual Harassment in the Garment Industry, HUM. RTS. WATCH (Feb. 12, 2019, 4:06 AM), https:// www.hrw.org/news/2019/02/12/combating-sexual-harassment-garment-industry#. GBV may “include physical harassment and physical violence/assault (ranging from unnecessary close proximity to rape and sexual assault).” See id. Sabina Lawreniuk and Laurie Parsons, ‘I know I cannot quit.’ The Prevalence and Productivity Cost of Sexual Harassment to the Cambodian Garment Industry, CARE (Mar. 2017), https://www.care.org.au/wp-content/ uploads/2017/04/SHCS_Full_Technical_Report_March_2017.pdf. 12. Aruna Kashyup, Why aren’t global clothings brands responding to #MeToo?, ECO-BUSINESSBUS. (Nov. 26, 2019), https://www.eco-business.com/opinion/why-arent-global-clothing-brands-responding-to-metoo/. 13. ABOUT THE ILO, https://www.ilo.org/global/about-the-ilo/lang--en/index.htm (last visited Feb. 22, 2020). 14. Chidi King, We made history with Violence and Harassment Convention - now comes the work of bringing the law to life, EQUAL TIMES (Oct. 7, 2019), https://www.equaltimes.org/we-made-history-with-the-violence#.XdLzxC3MxQI. 15. Convention on Violence and Harassment 21 June, 2019, ILO [hereinafter C190]. 16. Id. at art. 3. 17. Id. at art. 2. Note - Sheinwald.fm Page 3 Tuesday, March 16, 2021 3:37 PM

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Convention is strong enough in its language to change the current state of affairs for female garment workers in Cambodia and Bangladesh. Since these states ratified similar international legal instruments, it is likely they will ratify and enforce C190.

This note is divided into three parts. Part One of this note discusses the history of international labor and employment law and relevant legal frameworks. This part tracks the development of protections for women in the workforce around the world. Part Two discusses the current state of garment factories in Cambodia and Bangladesh. It discusses the experiences of female garment workers as it pertains to GBV, as well as the power dynamics that exist inside factories, which often facilitate GBV. Finally, Part Three of this note argues that C190 will be an effective legal instrument to combat sexual harassment and violence faced by female garment workers in Bangladeshi and Cambodian factories. The argument in this part of the note considers historical trends demonstrating the strength of enforcement power by the ILO, the UN, and states discussed herein. This part analyzes the potential effectiveness in the implementation of C190 and how it compares to international and domestic legal instruments already in place. Part Three of this note concludes that the Convention will initiate a societal paradigm shift, encouraging citizens of Bangladesh and Cambodia to internalize C190 into their existing social norms.

This note compares existing legal standards to determine what would be the best solution to combat sexual harassment and violence that female garment workers face in Cambodia and Bangladesh. Specifically, this note considers newly adopted C190, older conventions and declarations ratified by the ILO and the UN at large, and existing Cambodian and Bangladeshi law. Through research and analysis, this note contributes to a larger discussion of potential legal tools to fight GBV in Bangladeshi and Cambodian garment factories. This note sheds light on the legal tools that women in a variety of other workplace settings may utilize. This note ultimately concludes that the adoption and potential ratification of C190 in Cambodia and Ban- gladesh will change the current state of working conditions for female garment factory workers living in those states.

I. Background

A. The Recognition of GBV in International Legal Instruments Throughout History

The Universal Declaration on Human Rights (“UDHR”), adopted by the UN General Assembly on December 10, 1948, was the first international legal instrument pertaining to human rights.18 When the UDHR was signed, there were only 58 UN member states; 48 of these states voted in favor of the UDHR.19 This instrument served as a strong starting point for future international legal instruments pertaining to basic human rights. The declaration was the first international legal instrument to establish labor standards for workers, regardless of their “race, colour, sex, language, religion, political or other opinion, national or social origin,

18. U.N., HISTORY OF THE DOCUMENT, https://www.un.org/en/sections/universal-declaration/history-document/ index.html. 19. Id. Bangladesh and Cambodia did not have statehood at the time of the UDHR’s ratification, explaining their lack of inclusion in the UN’s vote. See id. Note - Sheinwald.fm Page 4 Tuesday, March 16, 2021 3:37 PM

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property, birth or other status.”20 Specifically, Article 23(1) of the UDHR established “the right to work . . . [and] to just and favourable conditions of work and to protection against unemployment.”21 The UDHR did not describe what “just and favourable conditions of work” would entail in practice.22 As a result, a gap formed where specific protections for workers were not detailed. Yet, this was a step in the right direction; these persons were now broadly covered by applicable human rights protections.

Since the UDHR’s worker protections were not specific, international organizations like the ILO continued to consider how workers’ rights could be improved. In an effort to strengthen the worker’s rights, the ILO adopted the Convention on Discrimination (Employ- ment and Occupation) (“C111”) in 1958.23 To date, 175 states, including Bangladesh and Cambodia, ratified C111.24 This legal instrument expects ratifying states to enact and enforce national policies that combat discrimination in an employment setting.25 Further, C111 calls for states to repeal any relevant state statutory provisions that run counter to the goals of this convention.26 Notably, C111 states that “[e]ach member which ratifies this Convention undertakes to apply it to non-metropolitan territories . . . .”27 The inclusion of this article in C111 expanded the rights of workers by specifically providing protections to those who live outside of cities. Employers in areas with less established infrastructure to enforce international legal instruments would have to abide by C111, providing workers with protections despite their geographic location. Although C111 was novel in its action against sexual discrimination in the workplace, workers still lacked definitive protection against sexual violence and harassment in the workplace.

The UN took steps in 1979 to explicitly fight against discrimination of women by adopting the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”).28 The Convention, ratified by 99 states including Bangladesh and Cambodia, explicitly defined “discrimination against women” and outlined the fundamental rights and freedoms to which women are entitled.29 CEDAW declared that states must take appropriate measures to eliminate discrimination for women and establish their “right to protection of health and safety in working conditions, including the safeguarding of the function of repro-

20. G.A. Res. 217 (III) A, Universal Declaration of Human Rights, U.N. Doc A/810 at 75, art. 2 (Dec. 10, 1948) [hereinafter UDHR]. 21. Id. at art. 23(1). 22. See id. 23. International Labor Organization [ILO], Discrimination (Employment and Occupation) Convention, ILO No. 111 (Jun. 25, 1958) [hereinafter C111]. 24. Ratifications of C111- Discrimination (Employment and Occupation) Convention, ILO (Jun. 15, 1960), https:// www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312256. 25. C111, supra note 23, at arts. 3(a), (b), (d)–(f). 26. Id. at art. 3(c). 27. Id. at art. 6. 28. See United Nations Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S 13 (entered into force Sept. 3, 1981) [hereinafter CEDAW]. 29. Id. at arts. 1–3 (defining “discrimination against women” as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition” or enjoyment of rights by women, on a basis of equality, in the political, economic, social, cultural, or civil realms.). Note - Sheinwald.fm Page 5 Tuesday, March 16, 2021 3:37 PM

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duction.”30 Broadly, CEDAW granted women the right to just and favourable conditions of work.31 Although CEDAW took the greatest leap in adding protections for women against discrimination, this Convention, like other previously mentioned legal instruments, included no description of what “just and favourable” conditions may entail.32 Additionally, the lack of detail regarding the “health and safety in working conditions” kept the gap in international legal instruments open and still left women vulnerable to GBV in their workplace.

By examining each of these international legal instruments, it is clear that only overly broad labor standards were created to protect workers from harassment and violence. None of these legal instruments explicitly focuses on GBV and its effect on working women. Only with the adoption of C190 did international governing bodies move towards providing stronger and more descriptive protections to women in the workforce.

B. The Current State of Labor Standards in Cambodia and Bangladesh

1. Existing Legal Frameworks in Cambodia

Bangladesh and Cambodia’s laws provide broad protections for female garment factory workers, yet they do not supplant the protections offered by C190. The Constitution of Cam- bodia, adopted in July 2004, is broad in its inclusion of fundamental rights for Cambodian citizens.33 In Article 38, the Constitution states that it “prohibits all physical abuse of any individual. The law protects the . . . honor and dignity of citizens.”34 This language suggests that harassment and/or assault will not be tolerated against any Cambodian citizen. Articles later in the Constitution become more specific, focusing on discrimination and employment. Article 45 states that “all forms of discrimination against women shall be abolished” and “the exploitation of women in employment is prohibited.”35 The Constitution declares that “[m]en and women are equal in all fields . . . .”36 Finally, Article 49 states that “[e]very Khmer citizen shall respect the Constitution and the laws.”37 As such, all citizens of Cambodia, regardless of their gender, are expected to follow the articles of the Constitution and must uphold the fundamental protections described herein. The Constitution of Cambodia directly addresses the treatment of women in the workplace, leaving less of a gap than others that exist in international legal instruments.

The Constitution of Cambodia “recognizes and respects human rights as stipulated in . . . the Universal Declaration of Human Rights and the covenants and conventions related to human rights [and] women’s rights . . . .”38 The inclusion of this language in the Constitution

30. Id. at art. 11(1)(f). 31. See id. at art. 11(1). 32. Id. 33. See CONSTITUTION OF THE KINGDOM OF CAMBODIA, July 13, 2004, ch. 3, arts. 31–46. 34. Id. at art. 38. 35. Id. at art. 45. 36. Id. 37. Id. at art. 49. 38. Id. at art. 31. Note - Sheinwald.fm Page 6 Tuesday, March 16, 2021 3:37 PM

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illustrates Cambodia’s willingness to implement and enforce the UDHR and other relevant international legal instruments within their state. Ideally, this article would be utilized for future enforcement of C190 if Cambodia ratifies the Convention.

Cambodia has a specific law governing labor and employment standards, though the protections for female garment factory workers are minimal.39 Cambodia’s Labor Law was enacted in 1997.40 One article directly addresses working conditions for women: Article 172.41 This article states that “[a]ll employers and managers of establishments in which . . . women work, must watch over their good behavior and maintain their decency before the public. All form of sexual violation (harassment) is strictly forbidden.”42 Although authors of the law included harassment in parentheses, the phrase “sexual violation” is broad enough that it feasibly covers sexual assault and other forms of GBV. In that same sentence, the lack of mention of employment settings is no matter. By indicating that all sexual violation will not be permitted, protection from sexual violation in the workplace may arguably be covered by Cambodia’s Labor Law.

The Cambodian government established the Cambodian National Council for Women (“CNCW”) by royal decree in 2001.43 The establishment of the CNCW demonstrates the Cambodian government’s willingness to enforce national and international law pertaining to women’s rights.44 The CNCW is responsible for coordinating and providing advice to the Cambodian government “on matters related to the promotion of Cambodian women’s status, roles and welfare of women to reduce and eliminat[ing]” all forms of discrimination.45 Its assigned duties include, inter alia, implementing and monitoring the enforcement of national laws and international treaties related to the status of women and preparing a national report on the implementation of CEDAW in Cambodia.46 If Cambodia ratified C190, an already- established state body would have enforcement power and the ability to ensure C190’s smooth implementation. Given the CNCW’s focus on the status of women, relevant articles in the Constitution of Cambodia and Cambodia’s Labor Law, and history of ratifying relevant international legal instruments, Cambodia would be able to provide appropriate protections to female workers and fill the gap in protection that exists among relevant international legal instruments.

39. See LABOR LAW [LAB. L.] art. 172 (Cambodia). 40. LAB. L. (Cambodia). 41. Id. at art. 172. 42. Id. 43. Kingdom of Cambodia, Revision of Royal Decree (Preah Reach Kret) NS/RKT/0201/036, Dated 14 February 2001 on the Creation of a National Council for Women, (CNCW), at 1.5, Royal Decree SN/Roy.Kr./0805/ 388 (Aug. 30, 2005), https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/63392/61064/F1013665281/ KHM63392%20Eng.pdf. 44. Id. 45. Id. at art. 1. 46. Id. at art. 4. Note - Sheinwald.fm Page 7 Tuesday, March 16, 2021 3:37 PM

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2. Existing Legal Frameworks in Bangladesh

In Bangladesh, there exists two sources of law dealing with protections for female garment factory workers: the Bangladesh Constitution and the National Women Development Policy of 2011 (“NWDP”).47 The Constitution of Bangladesh, adopted in 1972, includes fundamental rights pertaining to employment and gender equality but is not specific in its language.48 Arti- cle 11 states that Bangladesh must be a state where “fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed.”49 In regard to employment rights, the Constitution’s authors place the onus on the government in Article 14 by proclaiming that it is “a fundamental responsibility of the State to emancipate the . . . workers . . . from all forms of exploitation.”50 Article 29(2) says that no citizen shall, on the grounds of sex, be discriminated against in respect of any employment.51 Rights of women are spelled out in Article 28(2): “Women shall have equal rights with men in all spheres of the State and public life.”52 Founding documents of a state, like constitutions, are sweeping in the areas they discuss because they touch on every corner of a citizen’s life. Bangladesh’s Constitution fits into that mold since its language is not specific when discussing employment or women’s rights. If Bangladesh ratifies C190, the Convention and the Constitution together may provide adequate protection for female garment factory workers.

Bangladesh adopted the NWDP in March 2011 “to promote women’s equality without regards for their religion.”53 The state’s Ministry of Women and Children Affairs noted that women “were always suppressed under . . . social stigma, narrow-mindedness and discrimination in [their] male-dominated society.”54 The policy is broken down into different areas of life that affect women, including education, armed conflict, mass media, and more. The NWDP has numerous objectives: establish equal rights and human rights for women, ensure women’s safety and security, eliminate all forms of abuse against women, and reflect positive images of women in mass media.55 The policy calls for the “[e]limination of all forms of violence to women including physical and mental abuse and sexual harassment, rape . . . in the work-

47. A case adjudicated by the Supreme Court of Bangladesh, Bangladesh National Women Lawyers Association v. Ban- gladesh, is relevant to the matter herein. Bangl. Nat’l Women Lawyers Ass’n v. Bangladesh, (Writ Petition No. 8769), 31 BLD 324 (2011) (Sup. Ct. High Ct. Div.). A brief discussion of this case will ensue later in this note. However, it is worth noting that the court’s ruling was not adopted by the Government and a gap thus remains in the type of protections one may receive in the wake of sexual harassment. See Implement HC directives to prevent sexual abuse, THE DAILY STAR (Nov. 18, 2009, 11:00 PM), https://www.thedailystar.net/news-detail- 114721. 48. CONSTITUTION OF THE PEOPLE’S REPUBLIC OF BANGLADESH, Nov. 4, 1972, https://www.ilo.org/dyn/natlex/ docs/ELECTRONIC/33095/99627/F441895592/BGD33095.pdf. 49. Id. at art. 11. 50. Id. at art. 14. 51. Id. at art. 29(2). 52. Id. at art. 28(2). 53. Nozrul Islam, Government tries to push women’s equality for a third time, but Islamists object, ASIANEWS.IT (Mar. 25, 2011, 12:00 AM), http://www.asianews.it/news-en/Government-tries-to-push-womens-equality-for-a-third- time,-but-Islamists-object-21120.html. 54. NATIONAL WOMEN DEVELOPMENT POLICY 2011, Mar. 2011 (Bangl.). 55. Id. at art. 16. Note - Sheinwald.fm Page 8 Tuesday, March 16, 2021 3:37 PM

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place.”56 Regarding employment rights, the policy aims to “increase participation of women in the labor market, equal opportunity at the workplace, [and] ensured security and removal of disparities in employment.”57 The policy is unique from other state and international legal instruments because of its discussion of the image of women in the media. Notably, Articles 19.10 and 19.11 call for the creation of widespread public awareness in the media in prevention of abuse against women and for male involvement in building awareness in preventing abuse.58 Following the adoption of this policy, the Bangladeshi government’s commitment to protecting their female citizens’ rights was clear. Although there are only two sources of Bangla- deshi law providing protections for female workers, the state has a demonstrated interest in establishing rights for women across many areas of public life. If the Bangladeshi government were to ratify and enforce C190, they could build on the already existing protections for women in their state.

C. C190 and its Push for More Comprehensive International Labor Standards

C190 was adopted by the ILO on June 21, 2019.59 The adoption was momentous because the Convention established international labor standards specifically addressing GBV.60 C190 created protections for workers and those involved in the world of work; the Convention is creative in that it touches upon those not normally considered within the world of work. C190 is inclusive of employees and “persons irrespective of their contractual status” like interns, persons who have been terminated from their jobs, volunteers, job seekers, and more.61 C190 demonstrates that violence and harassment in the workplace constitute a human rights violation and are a threat to equal opportunities.62 The ILO thus concluded that GBV and violence and harassment in general, in the world of work are unacceptable and incompatible with decent work.63 Although C190 is crucial in expanding workers’ rights and combating violence and harassment in the workplace, the Convention will be successful only with full cooperation between international legal organizations, states, businesses, and individual citizens.

II. Female Employee Experiences in Bangladesh and Cambodia’s Garment Factories

In Bangladesh National Women Lawyers Association v. Bangladesh, The High Court Divi- sion of the Supreme Court of Bangladesh made certain directives aimed at eliminating public sexual harassment in Bangladeshi society.64 In its judgment, the court included a real case study

56. Id. at art. 19.1. 57. Id. at art. 23.7. 58. Id. at arts. 19.10–11. 59. C190, supra note 15. 60. King, supra note 14. 61. C190, supra note 15. 62. Namibia to ratify ILO Convention on violence and harassment, NEW ERA LIVE (Feb. 20, 2019, 7:57 PM), https:// neweralive.na/posts/namibia-to-ratify-ilo-convention-on-violence-and-harassment. 63. Id. 64. Bangl. Nat’l Women Lawyers Ass’n v. Bangl. (May 14, 2009) Response to Writ Petition No. 8769. Note - Sheinwald.fm Page 9 Tuesday, March 16, 2021 3:37 PM

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describing the experience of a female garment factory worker.65 This Bangladeshi woman’s experience is illustrative of the treatment a woman may face while working in a garment factory:

Golapi . . . has been working in a garment factory . . . She became the victim of sexual harassment by the manager and one of the supervisors of the factory. The supervisor would touch her shoulder and back while passing by her station. At times, he would bend over her and put his hand on her shoulder and try to reach her bosom. Golapi had no where (sic) to go as the manager himself was also the tormentor . . . He often commented in her presence that he would like to have her . . . Both the supervisor and the manager tried to rape her. While the supervisor grabbed her from behind and gagged her, the manager tried to tear her clothes off . . . When she tried to break free and screamed the manager attempted to choke her with the help of a shirt. She started bleeding in the mouth because of choking.66

Additionally, in a 2013 interview with Human Rights Watch, a Cambodian female garment worker shared her experience with verbal harassment in her factory.

There is one male worker who harasses me a lot . . . One day he says “Oh your breasts look larger than usual today.” On another day, he says, “You look beautiful in this dress- you should wear this more often so I can watch you.” There are others who purposely brush past us or pinch our buttocks while walking. Sometimes I feel like complaining. I don’t like it at all. But who do I complain to?67

C190 was adopted by the ILO with the intention of ensuring that what happens to these women will never happen again to other female garment factory workers. This section of the note will discuss the increase of women employed as garment factory workers, hierarchies existing in these factories, and how GBV is fueled by work and production regimes in the garment factories.

A. Rise of Women Working in Garment Factories

Bangladesh and Cambodia societies have become increasingly progressive, providing women with greater opportunities to earn living wages. Since the garment industry of Bangla- desh is “the biggest contributor to the country’s export earnings,” there are many available positions for women’s employment.68 Women who work in garment factories in Bangladesh and Cambodia are often young, unmarried, and move from rural areas to pursue work.69 Women

65. Id. 66. Id. 67. “Work Faster or Get Out” Labor Rights Abuses in Cambodia’s Garment Industry, HUMAN RIGHTS WATCH (March 92 (Mar. 2015), https://www.hrw.org/sites/default/files/reports/cambodia0315_ForUpload.pdf. 68. Bangladesh country study 2018, FAIR WEAR FOUND 3 (2018), https://api.fairwear.org/wp-content/uploads/2019/ 03/Fair-Wear-country-study-Bangladesh-2018-new.pdf. (last visited Sept. 27, 2020). 69. Gibbs et al., supra note 6. Note - Sheinwald.fm Page 10 Tuesday, March 16, 2021 3:37 PM

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are usually motivated to apply for these positions because employment allows them to avoid poverty, family conflicts, and for some, marital breakdown.70 Some women may also send a portion of their income to family located in rural areas in order to meet familial obligations.71 Working may transform a woman’s social and/or economic standing and earning a wage may allow a woman to save for her dowry.72

There is a strong preference in the garment industry to hire women as sewing machine operators because their fingers are considered to be more nimble than men; these female sewing machine operators “form the bulk of assembly line workers.”73 These female workers often hail from poorer provinces within their state, choosing to migrate out of financial necessity.74 “Over 90 percent of factory workers [in Cambodia] work at least 10 hours per day, six days a week and more during the busiest months.”75 When compared alongside the traditional American worker’s expectation of an eight-hour workday for five days per week,76 this statistic is staggering.

Women largely compose the population of workers in the garment industry—they are entitled to rights to protect them in an industry where they play such an outsize role. For example, “[i]n 2013 an estimated 2.9 million Bangladeshi women worked in the garment sector.”77 In 2015, 85% of the 600,000 workers employed by Cambodia’s garment sector were women.78 “The massive employment of women in the ready-made garments industry while a boon for poor, unemployed women is ironically also a reflection of the unequal treatment given to women both within and outside this industry.”79 Despite their huge presence in the economy, female garment factory workers from Bangladesh and Cambodia are demonstrably powerless in the workplace.

B. Existing Hierarchies within Garment Factories and its Relationship with GBV

Women from Bangladesh and Cambodia have been empowered by their ability to earn an independent wage, yet the previously existing dynamic between men and women remains the same. Despite women’s ability to pursue these employment opportunities, the gender hierarchy in garment factories still keeps a man’s position on top. “Gender inequality is characterized by unequal value afforded to men and women and an unequal distribution of power, resources,

70. Khosla, supra note 9, at 292. 71. Id. at 293. 72. Id. 73. 2012 ILO Report, supra note 5. 74. Id. 75. Id. 76. Sandra Webster, Flexible Work Arrangements: Technology Enabling Emerging Populations of Millennials and Baby Boomers (May 2018) (published D.B.A. dissertation, Temple University) (on file with ProQuest Disserta- tions Publishing). 77. Gibbs et al., supra note 6. 78. Lawreniuk & Parsons, supra note 11. 79. Khosla, supra note 9, at 295. Note - Sheinwald.fm Page 11 Tuesday, March 16, 2021 3:37 PM

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and opportunity.”80 “Women who work in the garment industry are not respected and they are considered to have low-skill jobs.”81 If Bangladesh and Cambodia ratify and enforce C190 alongside existing state laws, these states can shift who holds more power in the workplace and work towards combating gender inequality in this area of life.

There are three factors that, when joined together, contribute to GBV in garment factories: (1) patriarchal82 or hierarchical attitudes towards female garment factory workers, (2) employment structure within garment factories, and (3) existing work and production regimes in garment factories. The first two factors listed herein are closely associated. Sewing units in garment factories in Bangladesh and Cambodia are primarily staffed with women.83 This trend exists because of female stereotypes—women are considered to be more docile and have more nimble fingers than men. Men employed within the garment sector are better paid and are primarily supervisors and managers, as they are assumed to be stricter and able to control workers, reflecting gender roles in society.84 The decision to employ men in these types of roles feeds into patriarchal structures. States can rely on Article 6 of C190 in an effort to shift garment factories away from these employment structures; states could adopt policies ensuring equality for women workers who are vulnerable to GBV in their place of work.85

Since a majority of women work in a sewing function and many men work in supervisory or managerial functions, a power hierarchy is automatically present in garment factories between the sexes. Further, female garment factory workers are generally abused by people higher in the hierarchy within the factory.86 Female garment factory workers are also vulnerable to GBV “due to the informal recruiting practices, lack of documented proof of employment, the fear of losing one’s job, fear of retaliatory violence in response to filing a complaint and the absence of woman-friendly legal provisions.”87 Many female garment factory workers often do not report incidents of GBV in their workplace because garment factories in these states usually have no procedures to file complaints against other employees.88 As a result, the roles that men and women commonly fill in a garment factory (or the garment factory’s employment structure) play into the maintenance of patriarchal and hierarchical attitudes in garment factories in Bangladesh and Cambodia. Upon the ratification of C190, these states can rely on Article 8 of the Convention to prevent GBV from occurring in garment factories.89

80. Lawreniuk & Parsons, supra note 11. 81. 2012 ILO Report, supra note 5. 82. Patriarchy is a structural force that influences power relations. PATRIARCHY & POWER, https://www.api-gbv.org/ about-gbv/our-analysis/patriarchy-power/ (last visited Mar. 3, 2020). A patriarchy is dominated by men, and women often hold less power. Id. A patriarchal structure may rely on forms of oppression like GBV to remain the status quo. Id. 83. Lawreniuk & Parsons, supra note 11. 84. See id. 85. C190, supra note 15, at art. 6. 86. Lawreniuk & Parsons, supra note 11, at 16. 87. Khosla, supra note 9, at 296. 88. Lawreniuk & Parsons, supra note 11, at 39. 89. C190, supra note 15, at art. 8. Article 8 of C190 calls for member states to prevent GBV in employment settings “by identifying . . . the sectors or occupations and work arrangements in which workers and other persons concerned are more exposed to” GBV and “taking measures to effectively protect such persons.” Id. Note - Sheinwald.fm Page 12 Tuesday, March 16, 2021 3:37 PM

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Stress at work may aggravate GBV and misogyny because stress often equates to feelings of inadequacy and loss of control in male supervisors.90 A driver of stress is the work and production regimes in place in garment factories. Specifically, in Bangladesh, garment factories utilize the “Just-in-Time” (“JIT”) regime.91 This regime reflects the cycle of fashion: manufacturers will produce garments for Christmas during the summer months.92 The JIT regime creates the expectation that garment factories will produce products quickly and cheaply, which may come with the effect of managerial stress and anguish.93 Male supervisory staff members may turn to GBV or verbal harassment to increase productivity under this regime; supervisors may believe the fear or harm they create will cause female garment factory workers to work faster.94 “In the workplace, sexual harassment and other forms of violence are often used to build and sustain the power and control of management over workers through fear and intimidation.”95 Since garment factories must produce goods in line with this production regime and managers rely on sexual harassment or violence to maintain worker efficiency, the busy nature of this work indirectly contributes to GBV.96 If C190 were ratified by Bangladesh and Cambodia, female garment factory workers could rely on Article 9.97 Article 9 implores member states to adopt and implement workplace policies relating to GBV.98 Article 9 expects member states to “identify hazards and assess the risks of violence and harassment . . . and take measures to prevent and control them.”99 Thus, Bangladesh and Cambodia can rely on Article 9 to diminish the effects of this work regime because its broad language covers the risks that the regime presents to workers.

III. Assessing the Strengths and Weaknesses of C190 and its Relevant Counterparts

C190 will be a stronger international legal instrument than its predecessors if it is appropriately implemented and enforced by ratifying states. This Convention will be more effective than its predecessors because it (1) is broad in scope and protects workers and “other persons in the world of work” both inside and outside of the workplace,100 (2) defines GBV as a human rights violation,101 and (3) encourages states to implement and enforce the Convention in a progressive manner.102

90. Gibbs et al., supra note 6, at 3. 91. Id. 92. Id. 93. Id. 94. Id. 95. Id. 96. Id. 97. C190, supra note 15, at art. 9. 98. Id. 99. Id. 100. Id. at art. 2. 101. Id. at pmbl. 102. See id. at arts. 9–12. Note - Sheinwald.fm Page 13 Tuesday, March 16, 2021 3:37 PM

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C190 covers employees and others such as “persons irrespective of their contractual status, . . . [and] workers whose employment has been terminated.”103 The inclusion of this language is prevalent to female garment factory workers since this population often has short-term contracts or a complete lack of documentation demonstrating employment.104 If a female garment factory worker either has a short-term contract or a long-term contract, she will be covered by C190 because she had a contractual relationship with a garment factory at one point in time. Female workers who did not receive a contract from a garment factory arguably still can be covered under C190. To gain C190’s protections, these women can say they are “persons in training” like interns or apprentices because these types of workers usually lack a contract and have undefined employment terms and conditions.105 For example, “[a]n internship can be as short as only a few weeks in length but can often be several months long—with some being a year or more. Internships are not specifically regulated.”106 For these groups of women, as well as for women whose employment at a garment factory was terminated, they still can receive protections from C190 against GBV. The broad inclusion of different types of female workers in the Convention provides greater security for female garment workers in comparison to other relevant international legal instruments and state laws.

It is equally as important that C190 covers GBV incidents faced by female workers in a variety of employment settings. Article 3 of C190 states that the Convention applies to the following: the workplace, places where a person is paid, where a person takes a break or meal, work-related trips, work-related communications, employer-provided accommodations, and the commute to and from work.107 None of the international legal instruments or state laws discussed in this note, except for C190, include locations where female workers maintain legal protections.

The unique inclusion of this sweeping coverage illustrates C190’s potential effectiveness and its ability to offer legal protections to female workers in a variety of situations. For example, busier seasons in a garment factory lead to women to work more overtime hours and leave the factory later at night. As a result, they may become more vulnerable to GBV. According to a 2012 ILO report on Cambodian garment factories, “[m]any areas near the factories are dark and almost empty of residents and workers must walk along deserted roads, storehouses or empty areas. Over the years, sexual aggression, rape, and even murder have occurred, and workers are afraid.”108 If Bangladesh and Cambodia ratify C190, women commuting to their homes after a long day and night would have legal protections if an act of GBV occurred against them.

103. Id. at art. 2.1. 104. Khosla, supra note 9. 105. C190, supra note 15, at art. 2.1. 106. Dr. Rebecca Montacute, Internships - Unpaid, unadvertised, unfair, 20 THE SUTTON TR. 1, 3–5 (2018). 107. C190, supra note 15, at art. 3. 108. Jo-Ann Ward, Women and The City III: A Summary of Baseline Data on Women’s Experience of Violence in Seven Countries, ACTIONAID (July 10, 2016), https://actionaid.ie/wp-content/uploads/2016/10/women_and_the_ city_iii-1.pdf (discussing exclusion and violence suffered by urban women living in Bangladesh and Cambo- dia). Note - Sheinwald.fm Page 14 Tuesday, March 16, 2021 3:37 PM

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For this type of situation, female garment factory workers may rely on Articles 3 and 10 of C190. Specifically, Article 10 of the Convention discusses how states must enforce C190 and provide remedies to those afflicted by GBV.109 Article 10(e) provides “that victims of gender- based violence and harassment in the world of work have effective access to gender-responsive, safe and effective complaint and dispute resolution mechanisms, support, services and remedies.”110 As such, the type of legal protection offered to women in the working world may come in the form of a state’s reporting mechanisms and applicable resulting sanctions.111 Addi- tionally, in Article 3 of C190, the ILO included places associated with work and not just one’s workplace. The creative and expansive nature of Articles 3 and 10 will guarantee greater security for female garment factory workers who face GBV in their workplace, rest places, sanitary facilities, and when commuting to and from work.

In C190’s Preamble, the ILO recognizes that GBV “in the world of work can constitute a human rights violation or abuse, and that [GBV] is a threat to equal opportunities.”112 C190 deeming GBV a human rights violation or abuse immediately sets itself apart from other international and state legal instruments. For example, Article 23(1) of the UDHR merely calls for “just and favourable conditions of work.”113 Unlike C190, this language does not refer to GBV as something that would not be a just and favorable condition of work. Further, C190 stated that GBV is a threat to equal opportunity in the world of work.114 This extremely progressive language demonstrates the ILO’s awareness of the relationship between GBV and employment and how a woman’s opportunity to gain equal work may be compromised by the GBV they face in the workplace.

Similarly, C111 falls flat in recognizing GBV as a human rights violation or abuse. C111 calls for states to enact and enforce national policies that combat discrimination in an employment setting.115 Throughout C111, there is no discussion of combating GBV, let alone violence in general or in the workplace.116 Furthermore, although CEDAW defined what “discrimination against women” is in its text, the authors did not consider the relationship between GBV and employment, which left a gap in protections for workers. As such, C190 stands out as the most progressive and strongest international legal instrument that could be used to fight GBV for female garment factory workers in Bangladesh and Cambodia.

C190 will be more effective than other relevant international legal instruments because of the progressive manner in which it expects states to implement and enforce the Convention. Upon ratification of C190, states would have to consult or work in conjunction with employers to create a workplace policy that prevents GBV against women.117 States would need to

109. C190, supra note 15, at art. 10. 110. Id. at art. 10(e). 111. See id. at art. 10(d) and (e). 112. Id. at pmbl. 113. UDHR, supra note 20, at art. 23(1). 114. C190, supra note 15, at pmbl. 115. C111, supra note 23, at arts. 3(a), (b), (d)–(f). 116. See id. 117. C190, supra note 15, at art. 9(a). Note - Sheinwald.fm Page 15 Tuesday, March 16, 2021 3:37 PM

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consider “associated psychosocial risks in the management of occupational safety and health,” which no other international legal instrument discusses.118 States are expected to understand the risk of GBV through discussions with workers and their representatives.119 By collecting information directly from workers, C190 allows states to create more effective policies that truly address the needs of female garment factory workers. No other international legal instrument discussed herein considered consulting with workers to formulate policies affecting them. If states hear from those affected by their policies, they may be able to craft more sound protocols to protect that population. The construction of C190 suggests that it is a dynamic legal instrument, combining efforts and experiences of international governing bodies, states, employers, and individuals.

Further, C190 provides more remedies for victims of GBV and more information pertaining to reporting mechanisms for women who have experienced GBV in the workplace. Specifi- cally, in Article 10(b) of C190, the Convention provides examples of what those remedies or those mechanisms may be: complaint and investigation procedures, dispute resolution mechanisms external to the workplace, courts or tribunals, protection against victimization or retaliation, and legal, social, medical, and administrative support mechanisms for victims.120 If appropriately implemented, states like Bangladesh and Cambodia would be required to offer these options for women as a matter of legal right. No other international legal instrument offers, or even suggests, remedies for women to rely on if they are affected by GBV or mechanisms to report these incidents.

The Convention will fill in remaining gaps in protections for female garment factory workers existing in Bangladeshi and Cambodian laws. Although the Constitution of Cambodia says that “all forms of discrimination against women shall be abolished” and “the exploitation of women in employment is prohibited,” these statements are too broad and leave what may be considered as “exploitation of women in employment” up for interpretation.121 Similarly, the Constitution of Bangladesh merely states that no citizen shall be discriminated against in respect of any employment on the grounds of sex.122 C190, on the other hand, provides specific definitions of “violence and harassment” and “gender-based violence and harassment,” leaving no uncertainty whether an act in the workplace is illegal under the law.123 C190 thus will be a stronger legal instrument to rely on in comparison to relevant state legal instruments.

C190 will be a success because it will shift the current social norms existing in Bangladeshi and Cambodian society. “All societies . . . ascribe social roles to people through unsaid social norms that are passed on from one generation to another.”124 Social norms may be reinforced

118. Id. at art. 9(b). 119. Id. at art. 9(c). 120. Id. at art. 10(b). 121. CONSTITUTION OF THE KINGDOM OF CAMBODIA, July 13, 2004, art. 45, https://www.mfaic.gov.kh/site/ detail/5576. 122. CONSTITUTION OF THE PEOPLE’S REPUBLIC OF BANGLADESH, Nov. 4, 1972, art. 29(2), https://www.ilo.org/ dyn/natlex/docs/ELECTRONIC/33095/99627/F441895592/BGD33095.pdf. 123. C190, supra note 15, at art. 1. 124. Naoko Otobe, Gender and the informal economy: Key challenges and policy response, (ILO, Emp. Pol’y Dep’t, Working Paper No. 236, Dec. 22, 2017) [hereinafter Key challenges]. Note - Sheinwald.fm Page 16 Tuesday, March 16, 2021 3:37 PM

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by laws existing within a society.125 In Bangladesh and Cambodia, “[b]eliefs, status, attitudes, [and] patriarchal family structure play[] a major role in determining violence activities to [] women.”126 Although “gender gaps in the labour market persist, and changes in social norms dictating the roles of women and men are slow at best,”127 the ratification of C190 in Bangla- desh and Cambodia will help positively shift the attitudes towards female workers in society. The ratification of C190 in these states will signal to its citizens that their society is moving towards greater equity in the workplace regarding the treatment of women. Thus, the paradigm shift caused by the potential ratification of C190 in these states may lead to a decrease in incidents of GBV faced by female garment factory workers.

C190 will be effective in combating GBV in Bangladesh and Cambodia. Alongside enforcement of relevant state laws, C190 will be successful in changing the experiences of female garment factory workers. Given the earlier discussion in this note, it is clear that Bangla- desh and Cambodia have established infrastructure they may use to implement and enforce C190 if they choose to ratify the Convention. In particular, Cambodia established the CNCW, which enforces national and international law pertaining to the rights of women. In Bangla- desh, the adoption of the NWDP displays the Ministry of Family and Children Affairs’ desire to aid women who face GBV in the workplace. If these states ratify C190, they could begin offering greater protections to women working in garment factories in their states.

Conclusion

The adoption and potential ratification of C190 in Cambodia and Bangladesh will change the current state of working conditions for female garment factory workers living in those states. C190 evidently provides enough legal protection and reporting mechanisms that female garment factory workers will not need to rely on the #MeToo movement for their claims to gain traction. A comparison of international legal instruments with C190 in this note demonstrates the force the Convention will have if ratified and properly implemented in these states. International legal instruments such as the UDHR, C111, and CEDAW left gaps in protections for female workers; C190 does not have those gaps. Relevant state laws in Cambodia and Bangladesh will continue to be the legal instruments relied upon by female garment factory workers to ensure favorable conditions in their workplace. These laws could be supplemented by C190 and provide positive changes for female garment factories. Despite the adoption of C190, existing power dynamics in Cambodian and Bangladeshi factories may not be altered due to persisting global gender inequity. Thus, Bangladeshi and Cambodian governments must encourage a paradigm shift within their states: female garment factory workers should not be subjected to GBV in their workplace. To aid in such a shift, C190 will be an effective legal instrument to combat sexual harassment and violence faced by female garment workers in Ban- gladeshi and Cambodian factories.

125. Id. 126. Muhammad Rabi Ullah and Shahanaz Parvin, Socio-Economic Status of Women Influences of Domestic Violence: A Sociological Analysis at Urban Area in Bangladesh, 3 INT’L J. SOC. SCI. STUD. 149, 156 (May 2015). 127. Key challenges, supra note 124, at 3. Note - Simpson.fm Page 17 Tuesday, March 16, 2021 3:38 PM

Fall 2020] Disability and Immigration 17

Disability and Immigration: The Trump Administration’s Public Charge Rule and International Disability Rights Law

Heidi Simpson*

Introduction

In March of 2020, a news story broke about Lucio Delgado, a young immigrant who failed his citizenship test because the United States Citizenship and Immigration Services (“USCIS”) provided him with the reading portion of the test in large print, rather than in Braille.1 This is just one example of the challenges immigrants with disabilities must overcome when immigrating to the United States. In addition to overcoming mistakes by the government, like USCIS’s failure to provide Mr. Delgado with accommodations, immigrants with disabilities also must overcome policies designed to exclude them if they attempt to immigrate to the United States. One such rule that excludes immigrants with disabilities by design rather than by mistake is the public charge rule, which was recently re-interpreted by the Trump administration.

In 2019, the Trump administration published a rule that would prevent immigrants on public assistance from becoming legal permanent residents (“LPRs”) of the United States.2 The rule referred to throughout this note as Trump’s Public Charge Rule, is an interpretation of the public charge provision of the Immigration and Naturalization Act (“INA”), originally passed into law in 1952, allows people considered “public charges” to be denied admission to the U.S.3 The INA provision permits immigration officials to take many factors into consideration when determining whether an individual was likely to become a public charge, including age and health.4 These factors have historically allowed the provision to exclude not just low- income immigrants, but also immigrants with disabilities. Trump’s Public Charge Rule modi- fies the provision to include anyone who received public benefits for more than 12 months total in any three-year period as ineligible to immigrate or change their legal status under the Public Charge exclusion.5 This requirement that forces immigrants with disabilities to choose between their health and their immigration status is inconsistent with the United States’ obligations under international law.

* Articles and Notes Editor, New York International Law Review, 2020–2021; Center for International and Com- parative Law Fellow; International Honors Program Scholar; J.D. Candidate, St. John's University School of Law, 2021. 1. Jacey Fortin, With No Braille Option, a Blind Man Failed His Citizenship Exam, N.Y. TIMES (July 3, 2020) https://www.nytimes.com/2020/03/07/us/citizenship-exam-blind-man-braille.html. 2. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pt. 103, 212, 213, 214, 245, 248). 3. See 8 U.S.C. § 1182(a)(4) (2013). 4. 8 U.S.C. § 1182(a)(4)(B) (2013). 5. Inadmissibility on Public Charge Grounds, supra note 2, at 41, 295. Note - Simpson.fm Page 18 Tuesday, March 16, 2021 3:38 PM

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Based on the 2017 American Community Survey (“ACS”),6 approximately 40 million people living in the United States have a disability, making persons with disabilities approximately 13% of the U.S. population.7 According to statistics published by the United States Census Bureau, approximately 30% of all recipients of welfare or public assistance are persons with disabilities.8 There are no direct statistics on immigrants with disabilities on public assistance; however, only about 40% of immigrants with disabilities are employed.9 In other words, approximately 60% of all immigrants with disabilities do not have employment and are therefore likely to rely on public benefits.10 Even if the disability rate in immigrants is the same as it is across the country and only 13% of immigrants have disabilities, and only 50% of immigrants with disabilities rely on public benefits, that is still 6.5% of immigrants forced to choose between the benefits they need to survive and their immigration status.11 Immigrants with disabilities who are employed might also need to rely on public benefits, especially if their disability limits the amount or type of work they can do. This further increases the number of immigrants with disabilities faced with an impossible choice between survival and their immigration status.

On July 30, 2009, the United States signed the Convention on the Rights of Persons with Disabilities (“CRPD”), but have not yet ratified the document at the time of this note.12 How- ever, approximately 150 countries, a clear majority of the United Nations’ Member States, have ratified the document.13 The CRPD protects the rights of persons with disabilities to immigrate and to have a nationality.14 This note argues that by promulgating a rule that forces immigrants with disabilities to choose between their health and their legal status, the U.S. has violated its obligations to persons with disabilities under international law. Section I provides a background on immigrants with disabilities and policies affecting them throughout history. Section II explores the details of the final rule from the Trump administration and its effects on immigrants with disabilities. Section III explores the obligations that the United States has as a

6. THE IMPORTANCE OF THE AMERICAN COMMUNITY SURVEY AND THE 2020 CENSUS, https://www.census.gov/ programs-surveys/acs/about/acs-and-census.html (last visited Nov. 6, 2020) (The ACS is a survey that the U.S. Census Bureau sends to a sample size of households to obtain more accurate demographic information than what is collected on the census). 7. 2018 Annual Disability Statistics Compendium, REHABILITATION RES. AND TRAINING CTR. ON DISABILITY STAT. AND DEMOGRAPHICS 1, 14 (2018), https://disabilitycompendium.org/sites/default/files/user-uploads/ 2018_Compendium_Accessible_AbobeReaderFriendly.pdf. 8. Census Bureau Report Shows 30 Percent of Adults Receiving Government Assistance Have a Disability, U.S. CENSUS BUREAU (Feb. 26, 2013), https://www.census.gov/newsroom/press-releases/2013/cb13-33.html. 9. Huiyun Xiang et al., Disability and employment among U.S. working-age immigrants, 53 AM. J. INDUS. MED. 425, 425 (2010), https://www.researchgate.net/profile/Junxin_Shi/publication/229569716_Disability_and_ employment_among_US_working-age_immigrants/links/5c62e443299bf1d14cc1e072/Disability-and- employment-among-US-working-age-immigrants.pdf. 10. See id. 11. Id. 12. U.S. Signs International Treaty on the Rights of Persons with Disabilities, AM. CIV. LIBERTIES UNION (July 30, 2009), https://www.aclu.org/press-releases/us-signs-international-treaty-rights-persons-disabilities. 13. U.N. Department of Economic and Social Affairs, Convention on the Rights of Persons with Disabilities (CRPD) (May 3, 2008), https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons- with-disabilities.html (last visited Apr. 1, 2020) [hereinafter CRPD]. 14. See id. Note - Simpson.fm Page 19 Tuesday, March 16, 2021 3:38 PM

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signatory to the CRPD. Section IV argues that because of the widespread recognition of disability rights, the right of persons with disabilities to immigrate has risen to the level of Cus- tomary International Law (“CIL”). Finally, Section V argues that the United States’ implementation of Trump’s Public Charge rule is inconsistent with the CRPD, the obligations of a Signatory State to the CRPD, and the non-discrimination principle under CIL.

I. Background: Immigrants with Disabilities

The idea of preventing low-income and disabled individuals from immigrating to the United States is not unique to Trump. Early immigration statutes and policies often explicitly allowed immigration officials to prevent persons with certain physical or mental disabilities from entering the country. The General Immigration Act of 1882 prevented “idiots, lunatics, convicts, and persons likely to become a public charge” from entering the United States as immigrants.15 Generally, immigration officials were free to determine whether a person fell within one of these prohibited categories.16 The categories of “idiots” and “lunatics” were used to exclude persons with mental disabilities, and the public charge category was used to exclude persons with physical disabilities.17

U.S. courts have upheld these rules, allowing people to be denied entry to the U.S. solely because of their disability. In 1911, the Southern District of New York held in United States ex rel. Canfora v. Williams, that denying a man entry was sufficiently justified because he had an amputated leg.18 In another case from 1911, U.S. ex rel Barlin v. Rodgers, the Third Circuit held that three separate individuals were properly excluded because of their disabilities.19 The first was excluded on the basis of having a “rudimentary” right hand, the second on the basis of a stammer, and the third because he was “very small for his age.”20 In these cases, disabilities were the sole reason immigrants were denied entry to the United States, and the courts upheld those determinations as correct under the immigration law of the time.

Like the plaintiffs in U.S. ex rel Canfora v. Williams and U.S. ex rel Barlin v. Rodgers, many persons with disabilities who attempted to immigrate to the United States in the early 20th century were rejected at the border and forced to return home.21 The widespread stigma against people with disabilities was often justified by beliefs surrounding eugenics in the early

15. U.S. Citizenship and Immigration Services, Early American Immigration Policies, U.S. CITIZENSHIP AND IMMIGR. SERV., https://www.uscis.gov/history-and-genealogy/our-history/overview-ins-history/early-american- immigration-policies (last accessed April 1, 2020). 16. Immigration Act, ch. 376 § 2, 22, Stat. 214 (repealed 1943). 17. Mark C. Weber, Opening the Golden Door: Disability and the Law of Immigration, 8 J. GENDER, RACE AND JUST. 153, 156 (2004). 18. United States ex rel. Canfora v. Williams, 186 F. 355, 355–64 (S.D.N.Y. 1911). 19. U.S. ex rel Barlin v. Rodgers, 191 F. 972, 973–76 (3d Cir. 1911). 20. Id. at 975–76. 21. Weber, supra note 17, at 156–57. Note - Simpson.fm Page 20 Tuesday, March 16, 2021 3:38 PM

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twentieth century.22 This manifested in many different U.S. policies outside of just immigration and lead to the widespread exclusion and often abuse of persons with disabilities.23 In some cases, this ideology led courts to order the sterilization of persons with disabilities.24

During this time period, immigrants were viewed as valuable for their labor and persons with disabilities were not widely considered capable of labor.25 At the time, increasing the workforce was viewed as the primary motivator for accepting immigrants, and immigrants with disabilities were generally considered to be incapable of fulfilling that purpose.26 The Commis- sioner of Ellis Island said of persons with disabilities in 1912 that “admitting ‘degenerate breed- ing stock’ seemed one of the worst sins the nation could commit against itself.”27 During industrialization, the general policy of the United States was that immigrants considered unable to keep up with the evolving work environment created by industrialization would have little to no value, and therefore there was little reason to allow them into the country.28 This sentiment continued through the 1940s and was the background for the development of the current INA and its public charge rule, which were both enacted in 1952.29

The modern INA differs from its original form in several key aspects. Originally, in addition to the public charge exclusion, there were explicit exclusions for persons with disabilities.30 The explicit disability exclusion was removed from the Act in the 1990’s; however, the public charge provision is still intact.31 Additionally, there is a separate provision within the statute that prevents immigration of persons with mental or physical disabilities that have caused or are likely to cause them to behave in a way that threatens the property, health, or safety of themselves or others.32

The United States was not the only country to institute profoundly abusive policies against persons with disabilities. In the 1930’s and 1940’s, Germany, for example, also adopted abusive policies toward persons with disabilities and used eugenics to justify them.33 Simply put, many countries, including the United States, did not believe that persons with disabilities were valuable citizens. This was reflected in immigration and other policies toward persons with disabilities.

22. Id. at 159. 23. Id. at 158–59. 24. Id. at 157. 25. See id. at 155. 26. Id. 27. Id. at 159. 28. Id. at 159–60. 29. See id. at 159. 30. Id. 31. See 8 U.S.C. § 1182(a)(4). 32. 8 U.S.C. § 1182 (a)(1)(A)(iii). 33. Weber, supra note 17, at 157. Note - Simpson.fm Page 21 Tuesday, March 16, 2021 3:38 PM

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The legal protections for persons with disabilities have grown to be significantly more robust, both within and out of the United States in the past several decades. In the United States, Congress passed the Americans with Disabilities Act in 1990, which prevented discrimination on the basis of disability in employment, transportation, and other areas.34 Internation- ally, many countries also adopted legislative frameworks making their societies more accessible to persons with disabilities and preventing discrimination on the basis of disability.35 Addition- ally, the United Nations drafted the CRPD, which has been ratified by 181 countries.36 The CRPD was initially published and opened for signature in 2007 and received over 80 signa- tures on its first day.37 The CRPD entered into force in 2008, also including specific provisions protecting the rights of persons with disabilities to change their nationalities and to immigrate.38 It also prohibits discrimination on the basis of disability and requires that persons with disabilities have equal access to health care and are able to immigrate or change their nationality regardless of disability.39

II. The Trump Administration’s Public Charge Rule

The Trump administration’s changes to the public charge rule began in October of 2018. The preliminary rule was published in October of 2018.40 The Department of Homeland Security (“DHS”) then opened the proposed rule up for notice and comment, as required by United States administrative procedures.41 The final rule was published on August 14, 2019.42

During the 60-day notice and comment period, DHS received approximately 266,000 comments from the public.43 Many of the comments to the rule indicated concerns that the rule would punish low-income immigrant communities for seeking government assistance.44 In addition to its predicted negative impact on immigrants seeking public benefits, many commenters also noted that due to confusion about the rule, the children of immigrants who had status as United States citizens would likely also not receive the public assistance they need and are entitled to because of fears that their parents’ immigration status would be negatively

34. See Americans with Disabilities Act of 1990, 42 U.S.C. § 12101. 35. See Arlene S. Kanter, The Globalization of Disability Rights Law, 30 SYRACUSE J. OF INT’L L & COMMERCE 241, 249 (2003) (Discussing other countries, including Spain, Sweden, and Israel, which enacted disability protection laws). 36. CRPD, supra note 13. 37. Id. 38. Id. at art. 18. 39. Id. at art. 21. 40. Green Card Processes and Procedures: Green Card, U.S. CITIZENSHIP AND IMMIGRATION SERVICES (last visited Apr. 1, 2020) (https://www.uscis.gov/greencard/public-charge). 41. Id. 42. Id. 43. Id. 44. 29,053 Public Comments against the Proposed Changes to Public Charge, Docket No. USCIS-2010-0012-63739, FED. REG. (last visited Apr. 1, 2020) https://www.regulations.gov/document?D=USCIS-2010-0012-63739. Note - Simpson.fm Page 22 Tuesday, March 16, 2021 3:38 PM

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impacted.45 Many local officials, including the mayor of Berkeley, California noted that the rule would have a negative impact on their constituents and that it would prevent people from seeking government housing and healthcare assistance, leading to an overall deterioration of the quality of life in immigrant communities.46

Although this comment did not mention any legal issues with the rule, it did note that the policy would require families to make an inhumane choice between public benefits and immigration status.47 The Director of Health of Washington State also submitted a similar comment indicating that the proposed rule would have an adverse impact on public health because it would discourage immigrants from accessing health programs that they are otherwise entitled to access.48 This comment recommended that the rule be changed to exclude any health- related public benefits and allow for people seeking status as LPRs to still access these programs, as this would promote the public health generally.49 The letter was specifically concerned with the Supplemental Nutrition Assistance Program (“SNAP”) and Medicare Part D, as it viewed these programs as particularly important to the health of immigrants, and therefore the health of the United States.50

During the comment process for the final rule, the DHS responded to some of the criticisms of the rule. Some commenters noted that the rule might be inconsistent with international legal protections for refugees and that it might be inconsistent with the Universal Declaration of Human Rights (“UDHR”).51 DHS responded to these criticisms by noting that the rule does not apply to refugees and asylees; therefore, international refugee law is not violated.52 It also noted, relying on Sosa v. Alvarex-Machain,53 that the UDHR did not create binding legal obligations, therefore could not be violated by this rule.54 DHS did not address any arguments about the CRPD or CIL.55 In response to comments that indicated the rule would lead to discrimination against people on the basis of health or disability, the DHS responded that, “it did not codify this final rule to discriminate against aliens based on age, race, gender, income, health, and social status, or to create an ‘ageist’ system that selectively favors wealthy, healthy, and highly educated individuals.”56 Essentially, its argument was that

45. Id.; see also Comment Submitted by Mayor Jesse Arreguin, City of Berkeley, Docket No. USCIS-2010-0012- 63731, FED. REG. (last visited Apr. 1, 2020) https://www.regulations.gov/document?D=USCIS-2010-0012- 63731. 46. Arreguin, supra note 45. 47. Id. 48. Letter from Anthony L-T Chen, Director of Health, Tacoma-Pierce County Health Department, to Samantha Deshommes, Chief, Regulatory Coordination Division of U.S. Citizenship and Immigration Services (Oct. 16, 2018). 49. Id. 50. Id. 51. Inadmissibility on Public Charge Grounds, supra note 2, at 41,324. 52. Id. 53. Sosa v. Alvarez-Machain, 542 U.S. 692, 734–35 (2004) (articulating that the Universal Declaration of Human Rights is not on its own binding). 54. Inadmissibility on Public Charge Grounds, supra note 2, at 41,325. 55. Id. 56. Id. at 41,309. Note - Simpson.fm Page 23 Tuesday, March 16, 2021 3:38 PM

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though the rule might very well negatively impact persons with disabilities and older persons, that was not DHS’ intent in promulgating the rule, and therefore, the rule is not discriminatory.57 The final version of the rule was implemented on February 24, 2020.58

According to the USCIS, the purpose of the rule is to prevent persons who would be considered ineligible public charges from applying to change their visa to a LPR status (in the United States, the status of having a legal permanent residency is often colloquially referred to as having a “green card”).59 The rule specifically looks to whether a person has received more than 12 months’ worth of public benefits within any three-year period.60 The relevant public benefits include cash assistance (from federal, state, or local funding), SNAP (formerly known as “food stamps”), housing assistance, and most forms of Medicaid with some exceptions for emergencies, pregnancies, and benefits provided under the Individuals with Disabilities Educa- tion Act.61 Because eligibility for these benefits is decided by a combination of federal, state, and local rules, it is difficult to determine exactly how many green card seekers could access the relevant benefits prior to Trump’s Public Charge Rule and how many would be excluded.

The Trump Administration’s Public Charge Rule was not readily accepted. Several states filed lawsuits, seeking to overturn the rule. The District Court in New York imposed a nation- wide injunction against the enforcement of the rule in late 2019, and the government appealed this judgment up to the Supreme Court.62 On January 27, 2020, The Supreme Court granted the government’s application for a stay of the injunction on a 5–4 vote and the rule began being implemented on February 24, 2020.63 In addition to the New York case, there were cases initiated in California, Washington, Illinois, and other states opposing the implementation of the public charge rule.64 On February 2, 2021, the Biden Administration instructed DHS and USCIS to review the public charge rule and determine whether it should be implemented under the Biden Administration.65

57. Id. 58. See U.S. Citizenship and Immigration Services, Final Rule on Public Charge Ground of Inadmissibility, U.S. CITI- ZENSHIP AND IMMIGR. SERV., https://www.uscis.gov/archive/archive-news/final-rule-public-charge-ground- inadmissibility (last visited Apr. 1, 2020). 59. Inadmissibility on Public Charge Grounds, supra note 2, at 41,292, 41,295. 60. Id. 61. Public Charge Rule: Which Benefits are Considered for the Purpose of This Rule?, U.S. CITIZENSHIP AND IMMIGRA- TION SERVICES, https://www.uscis.gov/greencard/public-charge (last visited Apr. 1, 2020). 62. Miriam Jordan, Judges Strike Several Blows to Trump Immigration Policies, N.Y. TIMES (Oct. 11, 2019), https:// www.nytimes.com/2019/10/11/us/immigration-public-charge-injunction.html?searchResultPosition=16. 63. Department of Homeland Security v. New York, 140 S.Ct. 599 (2020). 64. See Tanya Albert Henry, How AMA is fighting to stop “public charge” immigration rule, AM. MED. ASS’N (Feb. 12, 2020), https://www.ama-assn.org/delivering-care/public-health/how-ama-fighting-stop-public-charge- immigration-rule. 65. FACT SHEET: President Biden Outlines Steps to Reform Our Immigration System by Keeping Families Together, Addressing the Root Causes of Irregular Migration, and Streamlining the Legal Immigration System, THE WHITE HOUSE BRIEFING ROOM (Feb. 2, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/ 02/02/fact-sheet-president-biden-outlines-steps-to-reform-our-immigration-system-by-keeping-families- together-addressing-the-root-causes-of-irregular-migration-and-streamlining-the-legal-immigration-syst/. Note - Simpson.fm Page 24 Tuesday, March 16, 2021 3:38 PM

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Upon the publication of the rule, many groups within the United States spoke about the negative impacts the rule was likely to have on persons with disabilities and on access to healthcare. A New York Times Op-Ed noted that the rule was likely to discourage people who had plans of applying for a green card from seeking medical and nutritional assistance because of a potential negative impact on their ability to immigrate.66 When the rule was initially published for notice and comment, it received a largely negative response from commentators, and its publication led many civil legal service providers to experience higher volumes of contact from clients who were considering applying for a green card and concerned about the impact of their use of public benefit programs.67

In an amicus brief to the Supreme Court on the issue of the injunction against enforcement of the rule, the American Academy of Pediatrics noted that the rule will directly harm persons with disabilities.68 The brief cites a “totality of the circumstances” analysis in terms of the effect of the rule on persons with disabilities, noting that persons with disabilities are more likely than others to rely on medical treatment and to have or develop conditions that make it difficult for them to support themselves.69 The amicus brief went on to note that nearly one- third of all people receiving Medicaid benefits are persons with disabilities, and about one- quarter of all recipients of SNAP are persons with disabilities.70 Under the Trump Administra- tion’s rule, these people will be prevented from obtaining green cards because they sought assistance they were entitled to for their disability. Many others will be discouraged from applying to much-needed benefit programs out of fear of the impact it will have on their immigration status.

The American Medical Association (“AMA”) has also filed a number of amicus briefs against the public charge rule, arguing that it will put the health of immigrants at risk by forcing them to choose between their immigration status and health care.71 In all the cases that the AMA has written briefs in, it has argued both that the rule is harmful to the health of all immigrants, including those with disabilities, and that it should not be enforced unless courts find it to be a lawful rule.72 The amicus briefs cite U.S. constitutional provisions, as well as domestic legal frameworks, to argue that the Trump Public Charge Rule is unlawful.73 Although these provisions also line up with international legal obligations, the amici before the Supreme Court

66. Michael D. Shear and Eileen Sullivan, Trump Policy Favors Wealthier Immigrants for Green Cards, N.Y. TIMES (Aug. 12, 2019), https://www.nytimes.com/2019/08/12/us/politics/trump-immigration-policy.html. 67. Id. 68. Brief for American Academy of Pediatrics et al. as Amici Curiae Supporting Respondents at 24, Department of Homeland Security v. New York, 140 S.Ct. 599 (2020) (No. 19-A785). 69. Id. at 24–25. 70. Id. at 27. 71. Tanya Albert Henry, How AMA is fighting to stop “public charge” immigration rule, AM. MED. ASS’N (Feb. 12, 2020), https://www.ama-assn.org/delivering-care/public-health/how-ama-fighting-stop-public-charge- immigration-rule. 72. Id. 73. Id. Note - Simpson.fm Page 25 Tuesday, March 16, 2021 3:38 PM

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do not cite international law in their argument that the Public Charge cannot be upheld as lawful.74 This note focuses on the international legal violations of the Public Charge rule but notes that there are also a number of domestic U.S. laws that the rule potentially violates.

III. The Convention on the Rights of Persons with Disabilities

The CRPD is the leading international legal framework that protects persons with disabilities. The CRPD was initially written in 2006 and opened for signature in 2008.75 In 2009, the United States became one of many States to sign onto the CRPD.76 The CRPD creates general freedom of movement for persons with disabilities, rights to health, to a nationality, and to immigration.77 Most States have signed or ratified the agreement, with a total of 181 ratifications or accessions.78 There is also an Optional Protocol to the convention, which sets up the Committee on the Rights of Persons with Disabilities, which is the UN body that has the competence to hear and adjudicate complaints under the CRPD.79 Within the CRPD, there are three articles that Trump’s Public Charge Rule arguably violates.

A. Article 18 of the CRPD

Article 18 of the CRPD states that “States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality.”80 This right includes the right to move from one country to another and the right to have a nationality and not to be arbitrarily deprived of that nationality. Under the Trump administration’s proposed rule, many potential immigrants will be denied the right to apply for legal permanent residence in the United States—the pathway to citizenship—because of their disabilities.

The CRPD Committee has not yet fully heard and decided on cases relating to the interpretation of Article 18 and the rights of immigrants with disabilities.81 However, it has noted concern at legal provisions limiting access to disability programs to immigrants. In its most recent report on Australia, the Committee noted that it was concerned with parts of Australian law that might allow for discrimination against migrants and asylum seekers on the basis of disability.82 The Committee recommended that Australia remove its 10-year qualifying period for

74. Id. 75. CRPD, supra note 13. 76. U.S. Signs International Treaty on the Rights of Persons with Disabilities, AM. CIV. LIBERTIES UNION (Jul. 30, 2009), https://www.aclu.org/press-releases/us-signs-international-treaty-rights-persons-disabilities. 77. Id. 78. Id. 79. U.N. Department of Economic and Social Affairs, Disability: Optional Protocol to the Convention on the Rights of Persons with Disabilities (CRPD), https://www.un.org/development/desa/disabilities/convention- on-the-rights-of-persons-with-disabilities/optional-protocol-to-the-convention-on-the-rights-of-persons-with- disabilities.html (last visited Apr. 1, 2020). 80. CRPD, supra note 13, at art. 18. 81. U.N. Department of Economic and Social Affairs, supra note 79. 82. Comm. on the Rights of Persons with Disabilities, Concluding Observations on the Combined Second and Third Periodic Reports of Australia, ¶ 35(a), U.N. Doc. CRPD/C/AUS/CO/2-3 (2019). Note - Simpson.fm Page 26 Tuesday, March 16, 2021 3:38 PM

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migrants to access disability pensions and that it review all its immigration laws and policies “to ensure that persons with disabilities do not face discrimination in any of the formalities and procedures relating to migration.”83 This indicates that the Committee, the chief interpretive body for the CRPD, believes that the provisions in Article 18 extend to ensuring that persons with disabilities can access benefits that citizens receive as a result of their disability regardless of the immigration status of the applicant.

Some countries also adopted reservations regarding Article 18. The United Kingdom, for example, has reserved the right to pass legislation that would exclude persons with disabilities who do not otherwise have the right to enter the United Kingdom from entering the United Kingdom.84 Although this reservation was accepted, and the United States could likely make a similar reservation upon ratification of the CRPD, the Committee has expressed that it believes the United Kingdom should withdraw this reservation.85 Additionally, the statement of this reservation to Article 18 indicates that the United Kingdom believes that, ordinarily, Article 18 would protect the rights of persons with disabilities to immigrate without adverse treatment because of their disability.

B. Article 5 of the CRPD

Article 5 of the CRPD is also relevant to the public charge rule. Article 5 prohibits discrimination on the basis of disability, and requires that persons with disabilities are treated equally under the law, with the exception of affirmative action programs designed to improve the access of persons with disabilities to things that other people have ready access to.86 Within the CRPD, discrimination on the basis of disability is defined as “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”87 This clearly includes any policy that has the effect of preventing persons with disabilities from exercising rights on an equal basis as persons without disabilities, regardless of the intent or purpose behind the policy. This is further clarified in General Comment 6 to the CRPD, which clearly states that Article 5 of the CRPD “prohibits de jure or de facto discrimination in any field regulated and protected by public authority.”88

83. Id. at ¶ 36(a)-(b). 84. United Nations Treaty Collection, Status of Treaties: Convention on the Rights of Persons with Disabilities, 3 May 3, 2008, 2515 U.N.T.C. 3, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-15&chapter=4. 85. Comm. on the Rights of Persons with Disabilities, Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland, ¶ 43, U.N. Doc. CRPD/C/GBR/CO/1 (2017). 86. CRPD, supra note 13, at art. 5(2). 87. Id. at art. 2. 88. Comm. on the Rights of Persons with Disabilities, General Comment No. 6 on equality and non-discrimination, ¶ 13, U.N. Doc. CRPD/C/GC/6 (2018). Note - Simpson.fm Page 27 Tuesday, March 16, 2021 3:38 PM

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Article 5 has been interpreted by the Committee in several cases. In Liliane Gröninger v. Germany, the Committee found that a German statute which provided subsidies to the employers of people who were temporarily disabled violated the CRPD.89 It found that this statute created a potentially discriminatory environment in which persons with temporary disabilities might receive better treatment, but that would lead to the rejection of persons with disabilities that lasted longer than the statutory scheme and were therefore ineligible to receive this sub- sidy.90 In other words, the different treatment of persons with permanent disabilities from those with temporary disabilities is discrimination on the basis of disability in violation of the CRPD.

C. Article 25 of the CRPD

Article 25 of the CRPD discusses the obligations that States have to provide health care to persons with disabilities. Article 25 requires that persons with disabilities be provided with the same level of health care and access to health resources that persons without disabilities receive.91 Article 25 has been interpreted by the Committee in several cases.

In Mr. X v. Argentina (2014), the Committee adopted the view that States are required to provide incarcerated persons with disabilities with the same standard of health as other persons.92 In this case, an incarcerated person became disabled as a result of a poorly done surgery and was subsequently denied rehabilitation treatments while incarcerated.93 The Committee found that this treatment violated Argentina’s obligations under Article 25, and that incarcerated persons with disabilities are required to have access to the health care they need to achieve the standard of health of their non-disabled peers.94 This includes a requirement that incarcerated persons with disabilities be given the medically recommended treatment and rehabilitation that they need because of their disability.95 This application of Article 25 to incarcerated persons indicates that all persons with disabilities, which arguably extends to immigrants, must be provided with the same level of health care as persons without disabilities.

D. Status of U.S. Ratification of the CRPD

The United States has not yet ratified the CRPD. The Convention was signed by Presi- dent Barack Obama in 2009, but never ratified by the Senate.96 When signing the Convention on the Rights of Persons with Disabilities, Ambassador Rice, as the signing representative of the United States noted that persons with disabilities often experience higher rates of poverty and

89. Comm. on the Rights of Persons with Disabilities, Views adopted by the Comm. at its eleventh session (31 March-11 April 2014), ¶ 7, U.N. Doc CRPD/C/D/2/2010 (2014). 90. Id. 91. CRPD, supra note 13. 92. Comm. on the Rights of Persons with Disabilities, Mr. X v. Argentina (2014), UN Doc CRPD/C/11/D/8/2012 (2014). 93. Id. 94. Id. 95. Id. 96. U.S. Signs International Treaty on the Rights of Persons with Disabilities, AM. CIVIL LIBERTIES UNION (July 30, 2009) https://www.aclu.org/press-releases/us-signs-international-treaty-rights-persons-disabilities. Note - Simpson.fm Page 28 Tuesday, March 16, 2021 3:38 PM

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barriers to access of healthcare.97 In addition to statements made at the signing of the CRPD, the United States government under the leadership of President Obama took many steps that indicated that it intended to provide increasing support for persons with disabilities in line with its signing of the CRPD. Among other things, President Obama signed Executive Order 13548, which focused on employment of persons with disabilities. The Executive Order required that the Federal government increase employment opportunities for persons with disabilities.98 It also required that further efforts be made to make accommodations for employees with disabilities.99 Although it did not specifically mention the CRPD, nor the rights of immigrants, it did recognize that “[t]he Federal Government has an important interest in reducing discrimination against Americans living with a disability.”100 This commitment is directly in line with the requirements under the CRPD, and indicates that even if the U.S. does not fully consider itself bound by the CRPD, it did believe that it has an important governmental interest in achieving the objectives of the CRPD.

The Senate considered the CRPD but ultimately did not ratify it.101 The Foreign Rela- tions Committee did recommend that the Senate ratify the document, and noted that it would not require significant changes from existing U.S. domestic law to comply with the protections of the convention.102 The executive record of the proceedings in the Senate lists an extremely large number of groups that expressed their support for U.S. ratification of the CRPD, including many disability rights advocacy groups and legal aid societies.103 The immigration-related protections of the CRPD did not appear to be at issue in the Senate, as they are acknowledged in the Executive Report, but are not mentioned in any reservations, understandings, or declarations (“RUDs”) proposed by the Senate.104 Based on the records of the Senate’s debate about the CRPD, the main provisions at issue were those pertaining to the rights and education of children with disabilities.105 There seemed to be a general sentiment among those who opposed the CRPD that its provisions violated the rights of parents in relation to children with disabilities.106 This sentiment is similar to the sentiment that prevented the Senate from ratifying the Convention on the Rights of the Child, and made the United States currently the only nation

97. Kareem Dale, Valerie Jarrett & Ambassador Rice at the U.S. Signing of the UN Convention on the Rights of Persons with Disabilities, THE WHITE HOUSE: PRESIDENT BARACK OBAMA (July 30, 2009, 7:26 PM) (https:// obamawhitehouse.archives.gov/blog/2009/07/30/valerie-jarrett-ambassador-rice-us-signing-un-convention- rights-persons). 98. Increasing Federal Employment of Individuals With Disabilities, 75 FR 45039 (2010). 99. Id. 100. Id. 101. See generally S. EXEC. DOC. NO. 113-12 (2014), https://www.congress.gov/congressional-report/113th-congress/ executive-report/12/1. 102. Id. at 1, 7. 103. Id. at 11–21. 104. See id. A RUD with respect to Article 18 is mentioned, but it is in response to the requirement of registration at birth of children with disabilities, and simply notes that this is a function already performed by the individual States in their own capacities. Id. 105. See id. 106. See id. Senators and the experts they invited to testify often noted that the protections of the convention of children were appropriate for less sophisticated countries than the United States, and they seemed to deny the applicability of the children’s protections to the United States. Id. Note - Simpson.fm Page 29 Tuesday, March 16, 2021 3:38 PM

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to have not ratified that instrument.107 Additionally, some Senators seemed to find issue with the CRPD because it might cause U.S. laws to change in the future, thus interfering with national sovereignty.108

Ultimately, at its vote before the full Senate in 2012, the CRPD received a vote of 61– 38.109 Under the United States Constitution, in order to be ratified, a treaty needs to receive a two thirds vote, so the CRPD was only 5 votes shy of ratification.110 The majority of the opposition for the CRPD came from “Tea Party” Republicans, despite the convention’s support from prominent Republican figures like former President George H.W. Bush and Senator John McCain.111 This vote caused the CRPD to be tabled, and it was again favorably passed to the full Senate by the Senate Foreign Relations Committee in 2014, but the Senate did not consider it again.112

If the Public Charge Rule were to be challenged under the CRPD, the United States would likely point out that despite multiple attempts, it has failed to ratify the CRPD. How- ever, as a signatory, there are still obligations that it must fulfill under the instrument. Absent a requirement that signatories have some sort of obligation, signing a treaty would be relatively meaningless. Fortunately, the Vienna Convention on the Law of Treaties (“VCLT”) sets forth the duties of signatories that have not ratified treaties.

E. Obligations of Signatory States

The VCLT is the main international legal instrument for interpreting treaty obligations. Article 18 discusses the obligations of signatories that have not yet actually ratified the treaty.113 Specifically, a State is prohibited from taking “acts which would defeat the object and purpose of a treaty.”114

The United States is not a party to the Vienna Convention on the Law of Treaties.115 Sim- ilar to the Convention on the Rights of Persons with Disabilities, the U.S. has signed but not ratified the VCLT. However, the United States Department of State’s official statement on the VCLT notes that the U.S. considers many of the provisions in the treaty to constitute CIL.116 Specifically, in 1971, the then Secretary of State of the United States noted that Article 18 of

107. Id. 108. Josh Rogin, Senate GOP rejects U.N. disabilities treaty, FOREIGN POL’Y (Dec. 4, 2012), https://foreignpolicy.com/ 2012/12/04/senate-gop-rejects-u-n-disabilities-treaty/. 109. Id. 110. Id. 111. Id. 112. LUISA BLANCHFIELD & CYNTHIA BROWN, CONG. RESEARCH SERV., R42749, THE UNITED NATIONS CON- VENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: ISSUES IN THE U.S. RATIFICATION DEBATE (2015), https://fas.org/sgp/crs/misc/R42749.pdf. 113. See Vienna Convention on the Law of Treaties art. 18, Jan. 27, 1980, 1155 U.N.T.S. 331 [hereinafter VCLT]. 114. Id. 115. Id. 116. Vienna Convention on the Law of Treaties, U.S. DEP’T OF STATE, https://2009-2017.state.gov/s/l/treaty/faqs/ 70139.htm (last visited Apr. 1, 2020). Note - Simpson.fm Page 30 Tuesday, March 16, 2021 3:38 PM

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the VCLT was widely recognized as a principle of CIL.117 In 1978, a U.S. ambassador also noted in response to Senate questioning that Article 18 of the VCLT simply codified widely respected principles of CIL.118 Because it has been the stance of the United States that the VCLT is CIL, it is applicable to the United States.

Assuming, as appears to be the position of the United States, that the VCLT is an expres- sion of CIL that is binding on the United States, it is appropriate to analyze the CRPD under the standards enumerated in the VCLT.

IV. Customary International Law on Discrimination against Persons with Disabilities

There is significant weight to the argument that the protection of persons with disabilities enshrined in the CRPD rise to the level of CIL. CIL is developed when a significant number of States engage in a practice over a period of time under the belief that they are legally obligated to engage in that practice. It is difficult to determine whether a belief of legal obligation has led States to adopt wide-ranging protections for persons with disabilities; however, it is indisput- able that many States have implemented these protections.

A. Regional Practice as Evidence of Customary International Law

Different countries have recognized the importance of protecting the rights of persons with disabilities in their own ways. Whether through the adoption of specific instruments or widespread acceptance of the norms articulated in the CRPD, most countries have indicated that they have a legal obligation to protect the rights of persons with disabilities.

1. The Americas

The Organization of American States (“OAS”), for example, has a treaty on the rights of persons with disabilities. The Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities was initially published in 1999 and has been signed by a majority of States belonging to the OAS.119 The United States has not signed onto this convention.120 The convention prohibits any discriminatory distinction, exclusion, or restriction that has the effect or objective of preventing persons with disabilities from exercising their rights.121 Specifically, it prohibits any action that has the purpose or effect of discriminat-

117. Robert E. Dalton et al., The Vienna Convention on the Law of Treaties: Consequences for the United States, 78 AM. SOC’Y OF INT’L L. 276, 278 (1984). 118. Id. 119. Organization of American States, Inter-American Convention on the Elimination of All Forms of Discrimina- tion Against Persons with Disabilities, June 8, 1999, http://www.oas.org/juridico/english/sigs/a-65.html (last visited May 1, 2020). 120. Id. 121. Id. Note - Simpson.fm Page 31 Tuesday, March 16, 2021 3:38 PM

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ing on the basis of disability.122 This treaty indicates an understanding in the Americas of the need to protect persons with disabilities from discrimination, pre-dating the CRPD by almost a decade.

2. Europe

The European Social Charter adopted by the Council of Europe in 1961 was the first regional human rights document to specifically mention the rights of persons with disabilities.123 Specifically, Article 15 of the original European Social Charter is dedicated to the rights of persons with both physical and mental disabilities to employment and vocational training.124 Although Europe does not have a regional framework specifically dedicated to the rights of persons with disabilities, Articles 21 and 26 of the European Charter of fundamental rights prohibit discrimination on the basis of disability.125 Europe also has the European Disability Action Plan, which is a strategy developed to increase the quality of life for persons with disabilities living in Europe.126 The most recent European Disability Strategy was adopted to help the European Commission implement its obligations under the CRPD.127 However, Europe’s previous disability strategies pre-dated the Convention, indicating that even without a specific international or regional instrument enumerating the rights of persons with disabilities, Euro- pean countries believed they had an obligation to provide a certain quality of life to persons with disabilities.128 Because European countries found that they were obligated to provide for the rights of persons with disabilities even without specific legal instruments, this indicates that the rights of persons with disabilities rose to the level of CIL, for many European countries.

3. Africa

The African Union does not have its own regional instrument governing the rights of persons with disabilities.129 However, African countries were heavily involved in the creation of the CRPD, with seven African States participating directly in the Working Group that created the CRPD.130 Additionally, the period from 1999–2009 was the African Union’s African Decade for Persons with Disabilities.131 The African Union re-affirmed its belief that disability rights are of deep importance by extending the African Decade for Persons with Disabilities to

122. Id. 123. U.N. ENABLE, International Norms and Standards Relating to Disability, https://www.un.org/esa/socdev/enable/ comp202.htm (last visited Apr. 1, 2020). 124. See European Social Charter art. 15, Oct. 18, 1961, E.T.S. 35, https://www.refworld.org/docid/3ae6b3784.htm. 125. EUROPEAN DISABILITY FORUM, The EU Framework on the Rights of Persons with Disabilities, http://www.edf- feph.org/eu-framework-rights-persons-disabilities (last visited Apr. 1, 2020). 126. Id. 127. Id. 128. Id. 129. Janet Lord & Michael Ashley Stein, Prospects and Practices for CRPD Implementation in Africa, 1. AFR. DISABIL- ITY RTS. Y.B. 97, 98 (2013). 130. Id. 131. Id. Note - Simpson.fm Page 32 Tuesday, March 16, 2021 3:38 PM

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also encompass the decade from 2010–2019.132 The African Union Executive Council also adopted, in 2009, a Continental Plan of Action that largely mirrors the CRPD.133 From these actions within the African Union, and the ratification of the CRPD by most African States it is clear that the member States of the African Union find the rights of persons with disabilities important and believe that States have an obligation to protect them.

Courts in Africa have ruled that the human rights protections enshrined in the African Charter provide protection to persons with disabilities.134 Specifically, the African Commis- sion, in Purohit and Moore v. The Gambia, found that the rights to non-discrimination and equality enshrined in the African Charter protect persons with mental disabilities, and they are non-derogable rights, meaning that they apply in all instances.135

The development of regional practices, as well as domestic legal frameworks codifying the rights of persons with disabilities indicates that States believe that they do have an obligation to protect persons with disabilities. That this belief is widespread, and nearly universal can be seen by the quick adoption of the CRPD, which has 181 ratifications, despite having only been in force for 12 years.

B. Other International Instruments Supporting a Prohibition of Discrimination against Persons with Disabilities

The UDHR states many of the rights protected by the CRPD. Specifically, Article 25 states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, wid- owhood, old age or other lack of livelihood in circumstances beyond his control.”136 This article creates an adequate standard of living for all persons, and appears to be in tension with any law that would prevent persons with disabilities from experiencing the security and standard of living contemplated by the UDHR on the basis of their disability. It also does not appear to allow for discrimination on the basis of immigration status in providing security to persons with disabilities. The Public Charge Rule promulgated by the Trump administration forces immigrants with disabilities to choose between financial security and healthcare and immigration status because of the effect their participation in public assistance programs would have on their ability to become legal permanent residents of the United States. For this reason, Trump’s Public Charge Rule is in tension with the UDHR.

Of course, the UDHR is non-binding. Nevertheless, it is an important source for the goals of the international legal community, especially with reference to the protection of human rights. Additionally, many of its provisions have now been codified into binding legal instru-

132. Id. at 98–99. 133. Id. at 99. 134. Michael L. Perlin, Promoting Social Change in Asia and the Pacific: The Need for a Disability Rights Tribunal to Give Life to the U.N. Convention on the Rights of Persons with Disabilities, 44 GEO. WASH. INT’L L. REV. 1, 7 (2012). 135. Id. 136. G.A. Res. 217 (III) A, Universal Declaration of Human Rights, at art. 25 (Dec. 10, 1948) [hereinafter UDHR]. Note - Simpson.fm Page 33 Tuesday, March 16, 2021 3:38 PM

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ments. The CRPD is the main document that codifies the protections of the UDHR for persons with disabilities into binding principles of international law.137 However, some protections that also apply to persons with disabilities have been codified into other instruments like the International Covenant on Civil and Political Rights (“ICCPR”) and the Inter- national Covenant on Economic, Social, and Cultural Rights (“ICESCR”).

The ICCPR does not explicitly mention persons with disabilities.138 However, its prohibi- tions on discrimination include as a category those with “other” statuses, which is generally recognized as including persons with disabilities.139 General Comment 18 to the ICCPR also reaffirms that the prohibition on discrimination includes more than just the grounds enumerated in the ICCPR. Specifically, it “prohibits discrimination in law or in fact in any field regulated and protected by public authorities.”140

The ICESCR also does not mention persons with disabilities specifically. However, it does create several rights that are recognized to apply to persons with disabilities. The ICESCR creates an obligation that States provide a minimum standard of living, education, and health for all people.141 Although this obligation also does not explicitly mention persons with disabilities, persons with disabilities are clearly part of “all people,” the term used by the ICESCR.142 ICESCR also includes provisions requiring that States guarantee all of the rights embodied in the instrument without discrimination.143 One of these rights is the right to “social security,” which can broadly be interpreted to mean public benefits.144 When reading these three provisions together, this creates a right to social security that must be free from discrimination, including discrimination on the basis of disability or natural origin.145

137. U.N., Universal Declaration of Human Rights, https://www.un.org/en/sections/universal-declaration/ index.html (last visited Apr. 1, 2020). 138. See International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S. 171 [hereinafter ICCPR]. 139. U.N. Enable, International Norms and Standards Relating to Disability, https://www.un.org/esa/socdev/enable/ comp202.htm (last visited Apr. 1, 2020). 140. Human Rights Committee, General Comment No. 18: Non-Discrimination, 37th Session (1989). 141. See International Covenant on Economic, Social and Cultural Rights, 3 Jan. 1976, 993 U.N.T.S. 3 [hereinafter ICESCR]. 142. Id. at art. 1. 143. Id. at art. 2. 144. Id. at art. 9. 145. Id. at art. 2. Discrimination on the basis of national origin is one of the categories expressly prohibited by ICE- SCR. ICESCR art. 2. Note - Simpson.fm Page 34 Tuesday, March 16, 2021 3:38 PM

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C. Prohibition of Discrimination against Persons with Disabilities as Customary International Law

Regardless of whether they are codified in the CRPD or other international legal instruments, persons with disabilities are recognized to have protections under international law. CIL is defined as law that “results from a general and consistent practice of states followed by them from a sense of legal obligation.”146 There is ample evidence that across the globe, States consider themselves to have a legal obligation to prohibit discrimination on the basis of disability.

One key component that evidences this is the shift from the medical model to the human rights model of disability law. Across the globe, by shifting from the medical model to the human rights model, many countries have recognized that persons with disabilities must be given by the State the resources they need to live a life equal to that of their non-disabled peers.147 This shift, which was driven by non-binding UN documents, rather than by binding law, indicates that States believed they had a legal obligation to provide equality for persons with disabilities.148

State practice further indicates that States believe they are obligated to prohibit discrimination against persons with disabilities on the basis of their disability. By passing the Americans with Disabilities Act, the United States was one of the first States to recognize a broad need to provide for persons with disabilities to live in the same manner that non-disabled persons do.149 A similar requirement has been read into the African Charter. In Latin America, the prohibition is more strongly codified through a regional treaty.150 Even in Asia, where there is no regional body or treaty requiring that States not discriminate on the basis of disability, many States, like Malaysia, the Philippines, and Turkmenistan, still prohibit discrimination on the basis of disability.151

Additionally, protections in non-binding treaties, like the Universal Declaration of Human Rights, are considered to extend to persons with disabilities.152 The UDHR is often considered CIL because, though it is a non-binding treaty, many binding human rights treaties were inspired by it.153

146. Restatement (Third) of the Foreign Relations Law of the United States § 102(2) (1987). 147. Kanter, supra note 35, at 248. 148. Id. 149. Id. at 249. 150. Organization of American States, Inter-American Convention on the Elimination of All Forms of Discrimina- tion Against Persons with Disabilities, June 8, 1999, O.A.S.T.S. No. A-65. 151. See Perlin, supra note 134, at 13–15. 152. See U.N., ?OHCHR and the Rights of Persons with Disabilities, OFFICE OF THE HIGH COMMISSIONER OF HUMAN RIGHTS, https://www.ohchr.org/EN/Issues/Disability/Pages/DisabilityIndex.aspx (last visited Jul. 1, 2020). 153. See Shirley C. Wang, The Maturation of Gender Equality into Customary International Law, 27 N.Y.U. J. INT’L L. & POL. 899, 901 (1995). Note - Simpson.fm Page 35 Tuesday, March 16, 2021 3:38 PM

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Finally, UN resolutions and other documents are important evidence of the existence of CIL. UN documents are recognized as one form of evidence that a principle has become CIL.154 There is no shortage of UN documents that prohibit discrimination on the basis of disability. For example, the 2017 Human Rights Council Resolution on the Special Rapporteur on the rights of persons with disabilities “[r]eaffirms the obligation of States to take all appropriate measures to eliminate discrimination against persons with disabilities and to promote, protect and respect their human rights.”155 Similarly, other UN documents and comments to binding and non-binding treaties indicate a broad non-discrimination obligation.156

For these reasons, to the extent that there is a CIL concept of non-discrimination, it includes discrimination on the basis of disabilities. Legal scholars generally agree that there is a strong mandate against discrimination under international law, however, there is some dis- agreement about whether it is a principle of CIL or a jus cogens norm.157 Regardless of whether non-discrimination is CIL or a jus cogens norm, States have an obligation under international law to not discriminate on the basis of many categories, including disability.

V. Trump’s Public Charge Rule is Inconsistent with International Law

As established in Sections III and IV, immigrants with disabilities have protections enshrined in the CRPD and in CIL. By preventing immigrants with disabilities from accessing aid, the United States is in violation of its obligations under the CRPD and under CIL. Even if the United States disputes its obligations as a Signatory State, discrimination against persons with disabilities on the basis of their disability is prohibited under CIL. Therefore, because the Public Charge Rule discriminates against immigrants with disabilities, by enforcing the Rule, the United States is in violation of international law.

A. Trump’s Public Charge Rule Violates Articles 5, 18, and 25 of the CRPD

As established in Section III, there are three specific provisions of the CRPD that conflict with Trump’s Public Charge Rule. Article 5 prohibits discrimination against persons with disabilities, Article 18 requires freedom of immigration, and Article 25 requires equal access to health care. By enacting a rule that infringes on immigrants’ rights to immigrate, change their nationality, or change their status because of their disability, the Trump administration has violated Article 18. Because persons with disabilities make up a large portion of public benefits recipients, and Trump’s public charge rule discriminates against public benefits recipients, it has the effect of discriminating on the basis of disability in violation of Article 5 of the CRPD. Finally, by forcing immigrants with disabilities to choose between the benefits they need and their immigration status, Trump’s Public Charge Rule prevents immigrants with disabilities from having equal access to health care in violation of Article 25 of the CRPD. However,

154. Id. at 905. 155. Human Rights Council Res. 35/6, U.N. Doc. A/HRC/RES/35/6, at ¶ 1 (June 22, 2017). 156. See, e.g., Hum. Rts. Comm., CCPR General Comment No. 18: Non-Discrimination on its Thirty-Seventh Ses- sion (Nov. 10, 1989) (defining non-discrimination and equality to include more than just the groups specifically identified in instruments preventing discrimination). 157. See, e.g., South West Africa Cases (Eth. & Liber. v. S. Afr.), 1966 I.C.J. 6, 298 (July 1966) (dissenting opinion of Judge Tanaka) (arguing that fundamental human rights and freedoms are jus cogens norms). Note - Simpson.fm Page 36 Tuesday, March 16, 2021 3:38 PM

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because the United States has not yet ratified the CRPD, violations of its provisions are only inconsistent with international law if they are also violations of the obligations of Signatory States.

B. The Public Charge Rule Violates the U.S.’s Obligations as a Signatory State to the CRPD

As established in Section III-E, the United States is a Signatory State to the CRPD and the VCLT. Under the VCLT, Signatory States still have obligations under the treaties they are only signatories to. Specifically, under the VCLT, a state is prohibited from taking actions that defeat the object and purpose of the treaty. The purpose of the CRPD, in the broadest sense, is the prohibition of discrimination against persons with disabilities on the basis of their disabilities.158 However, this is not the end of the obligation entered into by signatories. In determining the purpose of the treaty, the preamble of the Treaty is often looked to.159 The preamble of the CRPD lists specific areas of disability rights which are highlighted as important to the treaty.160 Of specific relevance to the Trump Administration’s Public Charge Rule, section (16) of the preamble notes that there are added difficulties faced by persons with disabilities because of “national, ethnic, indigenous, or social origin.”161 Additionally, section (20) of the preamble “[h]ighlight[s] the fact that the majority of persons with disabilities live in conditions of poverty, and in this regard recogniz[es] the critical need to address the negative impact of poverty on persons with disabilities.”162 This indicates that all signatories to the CRPD acknowledge that income often intersects with disability, causing persons with disability to rely on public assistance programs.

Trump’s Public Charge Rule is in direct conflict with that statement. Trump’s rule seeks to bar from the protections of immigrant status persons who, by virtue of their disability and poverty, immigration officials consider to be a public charge. Because Trump’s new public charge rule specifically notes that whether a person has been on public assistance must be considered, and because approximately 30% of all recipients of public assistance are persons with disabilities, it is clear that Trump’s public charge rule has the effect of excluding people on the basis of disability status.163 This, in direct opposition to the CRPD and seeks to punish persons with disabilities for experiencing poverty and on the basis of national origin, regardless of the fact that their reliance on public assistance is likely caused by their disabilities. The public charge rule could, potentially be made to comply with the object and purpose of the CRPD if exceptions were made for persons whose reliance on public assistance was based on their disability. However, because no such exception has been noted by the administration, the public charge rule is inconsistent with the United States’ obligations as a Signatory State under the VCLT.

158. See CRPD, supra note 13, at pmbl. 159. See VCLT, supra note 113, at art. 31. 160. See CRPD, supra note 13, at pmbl. 161. Id. at pmbl. (p). 162. Id. at pmbl. (t). 163. Census Bureau Report Shows 30 Percent Of Adults Receiving Government Assistance Have A Disability U.S. CENSUS BUREAU, (Feb. 26, 2013), https://www.census.gov/newsroom/press-releases/2013/cb13-33.html. Note - Simpson.fm Page 37 Tuesday, March 16, 2021 3:38 PM

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International courts have often found some level of obligation between States that have signed but not ratified treaties. For example, in Advisory Opinion on Reservations to the Conven- tion on the Prevention and Punishment of the Crime of Genocide, the International Court of Jus- tice noted that States that were not signatories to the Convention could not make objections that had any legal effect.164 This indicates that the ICJ gave legal significance to signature, as its absence bars objection but, impliedly, its presence conveys the right to object to the conduct and reservations of other parties.

In Megalidis v. Turkey, a mixed Greco-Turkish Arbitral Tribunal asserted that with the signature alone of a treaty, and prior to its entry into force, parties are obligated not to take any actions that would diminish the significance of its provisions.165 Other international legal decisions, including the Case Concerning Certain German Interests in Polish Upper Silesia, decided by the ICJ’s predecessor, the PCIJ also acknowledged a legal obligation to not defeat the purpose of a signed but not yet ratified treaty.166

The United States has, in the past, indicated that it believes itself to be bound by treaties that the Senate has not yet ratified. One key example of this is President Carter’s remarks on the SALT II Treaty in 1980. The U.S. Senate had not ratified the treaty, but President Carter stated in a news conference that he “consider[ed] it binding on our two countries.”167 He further noted that he found observing commitments to the Soviet Union under the treaty even before Senate ratification was important to the relationship between the two countries, and that if the Senate found problems with any provisions he would work with the Soviet Union to maintain the portions of the treaty that the Senate did not find issues with.168

Because the United States has in fact signed the CRPD, it has some level of obligation under the CRPD to persons with disabilities. By forcing immigrants with disabilities to choose between the aid they are entitled to and LPR status, the Trump administration is in violation of Articles 5, 18 and 25 of the CRPD. The rights listed in those provisions of the convention and the obligations violated by the U.S. in promulgation of the Public Charge Rule are central to the CRPD and the result is that the U.S. is in violation of the CRPD even as just a Signatory State.

C. The Public Charge Rule Violates Anti-Discrimination Principles of Customary International Law

As discussed previously, the international community has taken many steps that indicate there is an obligation to not discriminate against persons with disabilities under international law. These steps include enacting domestic frameworks, creating regional frameworks, and

164. See Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 28 (May 28); see also Joni S. Charme, The Interim Obligation of Article 18 of the Vienna Convention on the Law of Treaties: Making Sense of an Enigma, 25 GEO. WASH. J. OF INT’L L. & ECON. 71, 81 (1992). 165. See Codification of International Law: Part III—Law of Treaties, 29 AM. J. INT’L L. SUP 653, 784 (1935). 166. Certain German Interests in Polish Upper Silesia (Ger. V Pol.), 1926 P.C.I.J., (ser. A) No. 7, at 40 (May 25). 167. The President’s News Conference of March 14, 1980, 16 WEEKLY COMP. OF PRES. Doc. 488 (Mar. 14, 1980). 168. Id. at 488–89. Note - Simpson.fm Page 38 Tuesday, March 16, 2021 3:38 PM

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engaging in international efforts to prevent discrimination against persons with disabilities. Trump’s Public Charge Rule, however, by focusing on the level of assistance a potential immigrant is likely to need over their lifetime, discriminates against immigrants with disabilities. It allows the United States to deny LPR status to people who have used or are likely to need public assistance, despite the fact that such assistance is guaranteed under domestic and international law. Because the rule discriminates against people on the basis of their disabilities, it is in violation of CIL.

Conclusion

The Trump Administration’s Public Charge Rule discriminates against persons with disabilities and infringes on their freedom of immigration in violation of international law. The United States, although it has not ratified the CRPD, still has obligations under the treaty as a signatory. Namely, as recognized both in the VCLT, and by various courts, it is obligated not to take actions that are contrary to the object and purpose of the treaty. The Trump administration’s public charge rule is in direct conflict with the object and purpose of the CRPD.

The purpose of the CRPD is to provide protections for persons with disabilities and to prevent discrimination on the basis of disability. By refusing to allow public benefit recipients to attain legal permanent resident status, the Trump Administration has engaged in discrimination on the basis of disability. It is clear that as long as this rule is in effect it will adversely affect a large number of persons with disabilities. This clearly discriminates against immigrants with disabilities on the basis of their health status and difficulties in providing for themselves, which comes from the intersection of their immigration status and their disability status. This discrimination violates the United States’ obligations to persons with disabilities under the CRPD and under CIL. Article - Dibenedetto.fm Page 39 Tuesday, March 16, 2021 3:39 PM

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Wildlife As Culture: Using International Human Rights Law To Protect Global Biodiversity

Tala DiBenedetto*

Introduction

Wildlife around the world faces serious threats as a result of human activity. In addition to climate concerns,1 wildlife face the constant peril of habitat fragmentation and degradation, as well as destruction of ecosystems through land conversion, particularly due to agriculture, forestry, mineral and fossil fuel extraction, and urban development.2 As a result of human interference, we are experiencing a profound loss in biodiversity, referred to as the sixth mass extinction.3 Forest clearing for palm oil has decimated essential orangutan habitats in Borneo and Sumatra,4 while in South America, cattle ranching accounts for a staggering eighty percent of deforestation among Amazon countries.5 In addition to direct habitat destruction through forest conversion, cattle pastures increase the risk of fire and are a significant degrader of ripar- ian and aquatic ecosystems in places like the Amazon,6 which is home to over 427 mammals, 1,300 birds, 378 reptiles, more than 400 amphibians, and around 3,000 freshwater fish.7 That list includes species like jaguars, anteaters, toucans, boas, poison dart frogs, and giant otters.8

These species are not only valuable for their ecosystem services but for their cultural and historic value to the communities they have cohabitated with for hundreds, if not thousands, of years. For many cultures, the story of earth, humans, and existence is incomplete without the

* Legal Fellow at the PETA Foundation; JD, magna cum laude, and Advanced Certificate in Environmental Law, Elisabeth Haub School of Law at Pace University. 1. A United Nations report estimates that five percent of all species facing the risk of extinction solely from a 2o Celsius increase in global warming and “the majority of terrestrial species ranges . . . projected to shrink profoundly” even when holding global warming between 1.5o and 2o Celsius. UN Report: Nature’s Dangerous Decline ‘Unprecedented’; Species Extinction Rates ‘Accelerating’, SUSTAINABLE DEVELOPMENT GOALS (May 6, 2019), https://www.un.org/sustainabledevelopment/blog/2019/05/nature-decline-unprecedented-report. 2. James Ming Chen, The Fragile Menagerie: Biodiversity Loss, Climate Change, and the Law, 93 IND. L.J. 303, 308 (2018). 3. See, e.g., ELIZABETH KOLBERT, THE SIXTH EXTINCTION: AN UNNATURAL HISTORY (Picador 2d prtg. 2015); Gerardo Ceballos & Paul R. Ehrlich, The misunderstood sixth mass extinction, 360 SCI. 938, 1080–81 (2018); Ivana Kottasová, The Sixth Mass Extinction is Happening Faster Than Expected. Scientists Say it’s Our Fault, CNN (June 1, 2020), https://www.cnn.com/2020/06/01/world/sixth-mass-extinction-accelerating-intl/index.html; Nadia Drake, Will Humans Survive the Sixth Great Extinction?, NAT. GEOGRAPHIC (June 15, 2015), https:// www.nationalgeographic.com/news/2015/06/150623-sixth-extinction-kolbert-animals-conservation-science- world/#close. 4. Orangutans and Palm Oil: Protecting Forests to Help Great Apes, WORLD WILDLIFE FUND, https://www.world- wildlife.org/magazine/issues/summer-2015/articles/orangutans-and-palm-oil-protecting-forests-to-help-great- apes (last visited June 1, 2020). 5. Daniel Nepstad et al., The End of Deforestation in the Brazilian Amazon, 326 SCI. 1308, 1350–51 (2009). 6. Id. 7. José Maria Cardoso Da Silva et al., The Fate of the Amazonian Areas of Endemism, 19 CONSERVATION BIOLOGY 587, 689–94 (2005). 8. Id. Article - Dibenedetto.fm Page 40 Tuesday, March 16, 2021 3:40 PM

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presence of animals. To the Greeks, humans would not have fire but for the god Prometheus.9 To the Algonquin, fire was given to humans by a rabbit.10 For the Wurundjeri people of Aus- tralia, it was a crow.11 For the Mazateck people of Mexico, an opossum.12 In addition to their ecological and intrinsic significance, wildlife is recognized as an invaluable cultural resource. It is central to religion, mythology, folklore, and emblematic of cultural identity around the world.13 The close relationship between culture and wildlife is of particular significance to many native and indigenous groups, for many of whom culture and the environment are inex- tricably linked.14 International Environmental Law (“IEL”) instruments like the Convention on International Trade in Endangered Species of Wild Flora and Fauna (“CITES”)15 and the Convention on Biological Diversity (“CBD”)16 fail to fully recognize this essential cultural and historic dimension to wildlife and are currently unable to adequately protect wildlife due to issues with their scope and enforcement.17

International Human Rights Law (“IHRL”) recognizes the right to culture and provides for the protection of cultural properties, which can include the right to see and experience wildlife.18 While an IHRL approach to animal protection is not perfect for certain practical and ideological reasons,19 IHRL instruments may be able to direct States (and through States, private actors) to provide additional protections to wildlife by allowing individuals to bring a complaint against States where their actions could harm culturally significant wildlife, and by encouraging States to adopt laws and policies aimed at protecting wildlife as part of the right to culture. This approach is by no means a panacea to the various threats facing wildlife, in part due to the anthropocentric nature of IHRL, as well as its own limitations in scope and enforcement.20 However, it does provide a unique additional avenue for wildlife protection at a time when it is greatly needed.

This article argues that IHRL instruments aimed at protecting the right to culture can provide additional protection for certain wildlife where IEL currently falls short by providing protections for a broader range of species than those protected under current IEL treaties and

9. ANTHOLOGY OF CLASSICAL MYTH: PRIMARY SOURCES IN TRANSLATION 261 (Stephen M. Trzaskoma et al. eds., trans., 2004). 10. 10 HARTLEY BURR ALEXANDER, THE MYTHOLOGY OF ALL RACES (NORTH AMERICAN) (Louis Herbert Gray ed. 1916). 11. MUDROOROO NYOONGAH, ABORIGINAL MYTHOLOGY: AN A-Z SPANNING THE HISTORY OF THE AUSTRA- LIAN ABORIGINAL PEOPLE FROM THE EARLIEST LEGENDS TO THE PRESENT DAY 35–36 (1994). 12. Native American Opossum Mythology, NATIVE LANGUAGES OF THE AMERICAS, http://www.native-languages.org/ legends-opossum.htm (last visited May 4, 2020). 13. See discussion infra Section I. 14. See Bennoune infra note 41. 15. Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 [hereinafter CITES]. 16. Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, (entered into force Dec. 29, 1993) [hereinafter CBD]. 17. See discussion infra Section II. 18. See discussion infra Section I. 19. Id. 20. See discussion infra Section IV. Article - Dibenedetto.fm Page 41 Tuesday, March 16, 2021 3:40 PM

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creates both policy incentives in addition to a private right of action for those seeking to protect culturally significant wildlife. Section I describes the deep significance wildlife has held in the social, practical, and spiritual fabric of indigenous and non-indigenous cultures for millennia, and that there has been explicit recognition of wildlife as cultural property under some domestic laws.21 Section II argues that existing IEL treaties aimed at protection of wildlife and biodiversity are limited in scope and enforcement, creating a need to explore other avenues of international protection.22 Section III highlights a number of IHRL instruments that protect the right to culture and point to how the language of these treaties and guidance documents indicate that natural resources, including wildlife, are recognized as part of culture.23 Section IV argues that these instruments provide a promising avenue for wildlife protection through providing individuals the ability to bring a complaint where State action threatens culturally significant wildlife, or through encouraging States to adopt measures and policies aimed at the protection of wildlife as a means of protecting the right to culture, while pointing out possible shortcomings of these IHRL instruments.24

I. Wildlife As Culture

A. The Significance of Cultural Property to the Enjoyment of Cultural Life

The right to culture is central to the realization of human rights under international law. The purpose of the United Nations (“U.N.”) as expressed in the Charter of the United Nations (“U.N. Charter”) is “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.”25 These objectives were expanded upon in the U.N. General Assembly in 1948 through the promulgation of the Universal Declaration of Human Rights (“UDHR”).26 In addition to similarly recognizing “inherent dignity and of the equal and inalienable rights of all members of the human family[,]”27 the UDHR states that “[e]veryone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”28

In 1966, the U.N. adopted two separate covenants that, when joined with the UDHR, created the International Bill of Rights.29 In accordance with the principles contained in the U.N. Charter and the UDHR, the U.N. adopted the International Covenant on Civil and

21. See discussion infra Section I. 22. See discussion infra Section II. 23. See discussion infra Section III. 24. See discussion infra Section IV. 25. U.N. Charter pmbl., ¶ 1. 26. G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter U.N. Declaration]. 27. Id. at pmbl. 28. Id. at art. 27. 29. Asbjørn Eide & Allan Rosas, Economic, Social and Cultural Rights: A Universal Challenge, in ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: A TEXTBOOK 15 (Asbjørn Eide et al. eds., 2d ed. 2001) (stating that the U.N. General Assembly decided to divide the rights of the UDHR into two separate covenants, leading to the development of two distinct categories of human rights). Article - Dibenedetto.fm Page 42 Tuesday, March 16, 2021 3:40 PM

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Political Rights (“ICCPR”)30 and the International Covenant on Economic, Social and Cul- tural Rights (“ICESCR”)31 on December 16, 1966. While these instruments were meant to divide human rights expressed in the UDHR into two distinct categories (civil and political rights are covered by ICCPR and economic, social, and cultural rights are covered by ICE- SCR),32 both explicitly recognize the right to culture as a human right protected under IHRL.33

The 1976 United Nations Educational, Scientific and Cultural Organization (“UNE- SCO”)34 “Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It” defines access to culture as “concrete opportunities available to everyone, in particular through the creation of appropriate socio-economic conditions, for freely obtaining information, training, knowledge and understanding, and for enjoying cultural values and cultural property.”35

The importance of cultural property to human rights was first recognized in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (“Hague Convention”).36 The Hague Convention, which defines cultural property as the “movable or immovable property of great importance to the cultural heritage of every people[,]”37 states that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world,” and should therefore “receive international protection.”38 Finally, the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (“World Heritage Convention”) recognizes that “the existing international conventions, recommendations and resolutions concerning cultural and natural property demonstrate the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong[.]”39

30. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. 31. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 6 I.L.M. 360, 365, 993 U.N.T.S. 3 [hereinafter ICESCR]. 32. Eide & Rosas, supra note 29. 33. ICCPR, supra note 30, at art. 27 (“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture[. . .]”); ICESCR, supra note 31, at art. 15(1) (“The States Parties to the present Cove- nant recognize the right of everyone[] [t]o take part in cultural life.”). 34. UNESCO in Brief – Mission and Mandate, UNESCO, https://en.unesco.org/about-us/introducing-unesco (last visited May 2, 2020). UNESCO is an agency of the U.N. with the goal of “build[ing] peace through international cooperation in Education, the Sciences and Culture.” Id. 35. Educational, Scientific and Cultural Organization Res. (XIX), annex, Recommendation on Participation by the People at Large in Cultural Life and their Contributions to It, at 31 (Nov. 26, 1976) (emphasis added). 36. 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter Hague Convention]. 37. Id. at art. 1(a). 38. Id. at pmbl. 39. Convention Concerning the Protection of the World Cultural and Natural Heritage, pmbl, Nov. 16, 1972, 1037 U.N.T.S. 152 [hereinafter World Heritage Convention]. Article - Dibenedetto.fm Page 43 Tuesday, March 16, 2021 3:40 PM

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While cultural identity and the right to culture is a human right belonging to all peoples, certain groups are uniquely vulnerable to being stripped of their culture. In her report to the Human Rights Council (“UNHRC”),40 Independent Expert in the field of cultural rights Farida Shaheed concluded that “[c]ultural heritage is important not only in itself, but also in relation to its human dimension, in particular its significance for individuals and communities and their identity and development processes.”41 The report goes on to explain that

[t]he right of access to and enjoyment of cultural heritage forms part of international human rights law, finding its legal basis, in particular, in the right to take part in cultural life, the right of members of minorities to enjoy their own culture, and the right of indigenous peoples to self-determination and to maintain, control, protect and develop cultural heritage.42

The unique and nuanced issue of protecting the right of indigenous peoples to access and enjoy their own culture, which often involves access to natural resources, has been further clarified by other IHRL instruments.

Among both indigenous and non-indigenous peoples alike, animals are widely exploited for various purposes. They are used for food, clothes, medicine, and entertainment.43 Human rights law itself is steeped in the anthropocentric view that humans and their rights are of the highest concern and that non-humans are subservient to our needs and interests. IHRL reinforces the ideas that humans are special, and thus deserve special protection in the form of inalienable rights.44 It derides discrimination on the basis of race, sex, religion, place of birth, and age,45 but articulates no qualms with discrimination on the basis of species. Thus, even if we offer protection to certain animals based on certain criteria, as in the case of wildlife of particular cultural and spiritual significance, we still fail to recognize intrinsic value of animals worthy of rights or dignity for their own sake. In that way, an IHRL approach to animal protection will always be insufficient on its own to provide meaningful protection for animals.

40. Monitoring Civil and Political Rights, ECONOMIC OFF. U.N. HIGH COMM’R FOR HUM. RTS., https:// www.ohchr.org/en/hrbodies/ccpr/pages/ccprindex.aspx (last viewed May 5, 2020) (stating that “[t]he Human Rights Committee is the body of independent experts. . .” responsible for monitoring implementation of the Introduction to the Principles and Practice of Clinical Research “IPPCR”). 41. Farida Shaheed (Independent Expert), Report of the Independent Expert in the Field of Cultural Rights, ¶ 77, U.N. Doc. A/HRC/17/38 (Mar. 21, 2011). 42. Id. ¶ 78. 43. See, e.g., Animal Welfare Act, 7 U.S.C. § 2131 (1966) (regulating the treatment of domesticated and wild animals in research and exhibition); Humane Methods of Livestock Slaughter Act, 7 U.S.C. § 1901 (1958) (regulating the treatment of livestock during slaughter). 44. U.N. Declaration, supra note 26, at pmbl. (“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world . . .”) (emphasis added). 45. See, e.g., ICCPR, supra note 30, at art. 2(1) (“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”). Article - Dibenedetto.fm Page 44 Tuesday, March 16, 2021 3:40 PM

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Even indigenous peoples, who live harmoniously with animals, often exploit them for subsistence purposes.46 While this exploitation pales in comparison to the scope and extent of animal exploitation in developed nations,47 it worth noting that issues of animal welfare and protection of cultural identity are sometimes at odds. For example, Article 24 of the United Nations Declaration on the Rights of Indigenous (“UNDRIP”) declares the right of indigenous peoples to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals, and minerals.48

In fact, most cultures have a relationship with animals that is exploitative. Cultural practices and religious rituals of deep cultural significance can and do cause significant harm to animals. As Christian Groni points out in his article, submitted to CESCR, on the right to take part in cultural life, “[t]he right to take part in cultural life, such as the right to a traditional lifestyle including collecting, hunting or fishing, can clash with provisions to protect the environment, plants or animals, for example in the case of ritual slaughter of animals or bull or cock fights.”49 Although some animals have been protected for cultural or spiritual reasons, others have been and are abused for cultural or spiritual reasons. For cultures that engage in animal abuse as a form of entertainment, as in the case of bull fighting or cock fighting, or cultures engaged in the ritual sacrifice of animals in spiritual or religious ceremonies, as in the case of Santeria practitioners,50 we must assess whether the interest of protecting animals outweighs the interest of protecting the spiritual and cultural practices of certain communities.

IHRL has faced similar questions in the realm of human rights and welfare, as in the case of ritual human sacrifice.51 Thus, we need to balance the interests of culture and cultural preservation with other relevant interests. Animals are complex, thinking, feeling beings that have interests and deserve dignity. Recognizing animals as cultural property, which implies that their value is derived from their value to humans, reinforces the notion that they can and should be used for the benefit of humans. The notion that animals should have rights in accordance with their capacity to think, feel, and their interests in self-determination are incompatible with property status.52 Thus, as long as we view animals as some form of property or as existing for the benefit of humans, exploitation will continue.

46. See, e.g., infra note 191. 47. See David N. Cassuto & Sarah Saville, Hot, Crowded, and Legal: A Look at Industrial Agriculture in the United States and Brazil, 18 ANIMAL L.J. 12, 13, 20–21 (2012). 48. United Nations Declaration on the Rights of Indigenous Peoples, art. 24(1), U.N. Doc. A/RES/61/295 (2007) [hereinafter UNDRIP] (emphasis added). 49. Christian Groni, The Right to Take Part in Cultural Life, submitted to U.N. Comm. on Econ., Soc. & Cultural Rts., at 19, U.N. Doc. E/C. 12/40/3 (May 9, 2008). 50. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (Santeria church brought action challenging city ordinances prohibiting certain ritual slaughter of animals). 51. See, e.g., Lynne Marie Kohm, A Brief Assessment of the 25-Year Effect of the Convention on the Rights of the Child, 23 CARDOZO J. INT’L & COMP. L. 323, 341 (2015) (“Uganda ratified the Convention on the Rights of the Child in 1990, making the requirements and obligations set forth in the CRC binding upon it, with key provisions, which require Uganda, as a State Party, to address and combat the scourge of child sacrifice.”). 52. See generally Steven M. Wise, The Legal Thinghood of Nonhuman Animals, 23 B.C. ENVTL. AFF. L. REV. 471 (1996). Article - Dibenedetto.fm Page 45 Tuesday, March 16, 2021 3:40 PM

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Nevertheless, in the absence of an international treaty for animal rights or welfare, there are limited mechanisms available to provide any protections for animals whatsoever. It has been said that eco-centric and biocentric views “give additional meaning to the concept of the social life of things by acknowledging the ecological interaction between humans and the natural environment as well as the intrinsic value of ‘other’ non-human entities.”53 Where IEL can provide certain protection for wildlife based on a species’ abundance or ecological value, IHRL may provide protection for animals based on their close cultural and spiritual connection with humans. Even mechanisms rooted in anthropocentric ideas about the value of animals provide a broader range of protection from certain forms of harm.

Wildlife has played a vital role in the history and development of culture, not just as a means of subsistence, but as a central component of cultural identity through spirituality, literature, folklore, and iconography.54 Because wildlife occupies a unique space as both natural resources and as cultural objects, they deserve protection under both IEL and IHRL.

B. Wildlife as Cultural Property Protected Under IHRL

1. Wildlife Qualifies as “Cultural Property”

The U.N. has expressed that animals that live in the wild “have an intrinsic value and contribute to the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic aspects of human well-being and to sustainable development.”55 The United Nations Committee on Economic, Social and Cultural Rights, the treaty monitoring body responsible for monitoring the implementation of the ICESCR,56 recognized that

[i]ndigenous peoples’ cultural values and rights associated with their ances- tral lands and their relationship with nature should be regarded with respect and protected, in order to prevent the degradation of their particular way of life, including their means of subsistence, the loss of their natural resources and, ultimately, their cultural identity.57

In addition to their value as natural resources, wild animals are central to the religious practices, mythology, and folklore of many societies. For example, certain indigenous cultures believe in totems, a hereditary emblem-animal for a person, tribe or clan, which often gives the

53. Daan P. van Uhm, The social construction of the value of wildlife: A green cultural criminological perspective, 22(3) THEORETICAL CRIMINOLOGY 384–401 (2018). 54. See discussion supra Section I.A. 55. The incalculable value of wildlife, UNITED NATIONS, https://www.un.org/en/observances/world-wildlife-day (last visited Mar. 3, 2020). 56. Comm. on Econ., Soc., and Cultural Rts., OHCHR, https://www.ohchr.org/en/hrbodies/cescr/pages/ cescrindex.aspx (last visited Mar. 2, 2020). 57. Comm. on Econ., Soc., and Cultural Rts, General Comment No. 21, U.N. Doc. E/C.12/GC/21 ¶ 36 (2009) (citing the International Labour Organization, Convention concerning Indigenous and Tribal Peoples in Inde- pendent Countries, June 27, 1989, arts. 13–16) (emphasis added) [hereinafter CESCR, Gen. Comment No. 21]. Article - Dibenedetto.fm Page 46 Tuesday, March 16, 2021 3:40 PM

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person or group its name.58 Taboos against eating one’s totem animal are nearly ubiquitous among groups that have totems.59 Similarly, many societies forbid their people from eating a certain animal honored for the legendary assistance it gave to their ancestors.60 In totemic societies, relations to wild species are imperative for a sense of group identity and solidarity.61 Wolves hold tremendous cultural significance to Native American cultures, which have long seen the wolf as “both a powerful animal and a source of inspiration.”62 In most Native Ameri- can cultures, wolves are associated with courage, strength, loyalty, and success at hunting.63 In many Native American mythologies and origin stories, wolves are depicted as heroes, gods, and ancestors of humankind.64 For example, “[t]he Arikara and Ojibwe believed a wolfman spirit made the Great Plains for them and for other animals.”65 For the Kaliña and Lokono peoples, there is a special physical and spiritual relationship with their lands and natural resources, as they consider that all the animals, plants, fish, stones, streams, and rivers are interconnected living beings that have protective spirits.66 Based on this spiritual relationship, the indigenous peoples restrict the entry into certain areas, the logging of certain trees, and the hunting or cap- ture of some animals and fish, such as boa constrictors.

This deep-seated relationship between wild animals and culture extend beyond the faith and practices of indigenous communities. Wild animals have served as symbols of culture for millennia.67 Lions have served as cultural icons representing strength and skill across Europe, Africa, and Asia.68 In ancient Egypt, the warrior goddess and goddess of healing Sekhmet was depicted as a lioness.69 In Iran, lions have served as a national emblem, symbolizing heroism and kingship.70 The symbol on the Persian flag was a sun-and-lion symbol.71 In the United

58. Kent H. Redford et al., What about the Wild Animals? Wild Animal Species in Community Forestry in the Tropics, FAO (1995) http://www.fao.org/3/v7795e/V7795e02.htm. 59. Id. 60. Id. 61. Id. 62. Erin Edge et al., Places for Wolves, DEFENDERS OF WILDLIFE 1, 10 (2013) https://defenders.org/sites/default/ files/publications/places-for-wolves-defenders-of-wildlife-report.pdf. 63. Native American Wolf Mythology, NATIVE LANGUAGES, http ://www.native-languages.org/legends-wolf.htm (last visited Feb. 29, 2020). 64. Id. 65. Edge et al., supra note 62. 66. Id. 67. Statute of the Goddess Sakhmet, MET MUSEUM, https://www.metmuseum.org/art/collection/search/544484 (last visited Mar. 30, 2020) (exemplifying the use of wild animals serving as symbols since ancient times is a depic- tions of the ancient Egyptian lion goddess Sakhmet, which dates back to 1390-1352). 68. Id. 69. Id. 70. KATHERYN BABAYAN, MYSTICS, MONARCHS, AND MESSIAHS: CULTURAL LANDSCAPES OF EARLY MODERN IRAN (2002). 71. Id. Article - Dibenedetto.fm Page 47 Tuesday, March 16, 2021 3:40 PM

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States, the bald eagle was selected as the national symbol in 1782, chosen because they represent strength and independence.72 The bald eagle has also come to represent freedom and democracy and is meant to inspire patriotism.73

Wildlife is not just regarded as culturally important but has been recognized domestically as cultural property, affording it legal protection under certain domestic cultural protection laws.74 For example, under Japan’s Law for the Protection of Cultural Properties, animals are considered a type of cultural property.75 Under this expansive law, animals are protected as monuments, along with historical sites, places of scenic beauty, plants, and geological formations.76 Protection of animals as cultural property was recognized extraterritorially when the United States wanted to construct a military base in Okinawa that would have threatened the habitat of an endangered dugong,77 an herbivorous marine mammal in the sirenian family.78 There exists only a small population of dugong found in the waters off the eastern coast of Oki- nawa.79 In Dugong v. Rumsfeld, Plaintiffs, consisting of environmental groups and Japanese citizens, challenged the U.S. Government’s failure to comply with the National Historic Preservation Act (“NHPA”) in assessing the impact of the project on the dugong.80 The NHPA requires federal agencies to evaluate the impact of all federally funded or permitted projects on “historic properties.”81 Although NHPA had never been used or invoked to protect wildlife as cultural property, the U.S. Court held that a species of dugong could be considered “historic property” under the Act.82

Regional Human Rights Courts, such as the Inter-American Court of Human Rights (“IACHR”), have also recognized this relationship. The IACHR has recognized that

[t]he culture of the members of the indigenous communities corresponds to a particular way of being, seeing and acting in the world, based on their close relationship with their traditional lands and natural resources, not only because these are their main means of subsistence, but also because they are a component of their world vision, their religious beliefs and, consequently, their cultural identity.83

72. Antonia M. DeMeo, Access to Eagles and Eagle Parts: Environmental Protection v. Native American Free Exercise of Religion, 22 HASTINGS CONST. L.Q. 771, 773 (1995). 73. Eagles also hold a special cultural significance with Native Americans, who use eagle feathers as a symbol of honor and cultural identity. Id. at 774. 74. JAPAN AGENCY FOR CULTURAL AFFAIRS, CULTURAL PROPERTIES FOR FUTURE GENERATIONS (2019) https:// www.bunka.go.jp/tokei_hakusho_shuppan/shuppanbutsu/bunkazai_pamphlet/pdf/r1393015_02.pdf. 75. Id. 76. Id. 77. Dugong v. Rumsfeld, No. C 03-4350 MHP, 2005 WL 522106, at *12 (N.D. Cal. 2005). 78. Id. at *3. 79. Id. 80. Id. at *1. 81. 16 U.S.C.A. § 470(f) (repealed 2014). 82. Dugong, 2005 WL 522106, at *12. 83. Kaliña and Lokono Peoples v. Suriname, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 309, ¶ 130 (Nov. 25, 2015). Article - Dibenedetto.fm Page 48 Tuesday, March 16, 2021 3:40 PM

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Moreover, even IEL instruments have explicitly recognized the cultural dimension of wildlife to their communities. The recognition of wildlife for their cultural value is mentioned directly in the text of multiple IEL treaties, including CITES,84 the Convention on Biological Diversity (“CBD”),85 and Convention on the Conservation of Migratory Species of Wild Ani- mals (“CMS”).86 These treaties further recognize that wild animals are not just significant to the culture of the communities in which they are located but as part of the cultural fabric of humankind. CITES recognizes the “ever-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic points of view.”87 Under CBD, conservation of biological diversity, and thus of wild animals, is recognized as a common concern of humankind.88 The text of the CBD was intended to reflect conservation of biological diversity as the common heritage of humankind, but this phrasing was resisted by many States concerned about sovereignty over their natural resources and thus not adopted.89 The Convention Con- cerning the Protection of the World Culture and Natural Heritage (“World Heritage Conven- tion”) states that “[the] deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world[.]”90 Article 2 of the World Heritage Convention defines “natural heritage” as, inter alia, “geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation[.]”91 While not explicitly including animals themselves as natural heritage, the definition includes areas qualifying specifically due to the fact that they are where wildlife of “outstanding universal value” are located.92 Finally, CMS recognizes that “wild animals in their innumerable forms are an irreplaceable part of the earth’s natural system which must be conserved for the good of mankind.”93 Due to their cultural significance, animals should qualify as a form of cultural property, and therefore wildlife should be entitled to protection under cultural preservation laws.

84. CITES, supra note 15, at pmbl. 85. CBD, supra note 16, at pmbl. 86. Convention on the Conservation of Migratory Species of Wild Animals, pmbl., June 29, 1979, 1651 U.N.T.S. 333 [hereinafter CMS] (recognizing “the ever-growing value of wild animals from environmental, ecological, genetic, scientific, aesthetic, recreational, cultural, educational, social and economic points of view”) (emphasis added). 87. CITES, supra note 15, at pmbl. 88. CBD, supra note 16, at pmbl. 89. Ad Hoc Working Grp. of Experts on Biological Diversity, Rep. of the Ad Hoc Working Grp. on the Work of its Third Session in Preparation for a Legal Instrument on Biodiversity of the Planet, ¶ 18, annex I ¶ 2 (Aug. 13, 1990), https://www.cbd.int/doc/meetings/iccbd/bdewg-03/official/bdewg-03-12-en.pdf. 90. World Heritage Convention, supra note 39, at pmbl. 91. Id. at art. 2 (emphasis added). 92. Id. at art. 2 (emphasis added). 93. CMS, supra note 86, at pmbl. (emphasis added). Article - Dibenedetto.fm Page 49 Tuesday, March 16, 2021 3:40 PM

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2. Harm to Wildlife as Harm to Culture

IHRL protects cultural objects and cultural property from damage or harm, such as prohi- bitions on looting, smuggling, theft, and illicit trafficking.94 The Hague Convention seeks to protect the damaging of cultural property95 by requiring State parties to respect cultural property, subject only to military necessity.96 The UNHRC Resolution on Cultural Rights and the Protection of Cultural Heritage,97 recognizes that “the destruction of or damage to cultural heritage may have a detrimental and irreversible impact on the enjoyment of cultural rights,”98 and calls upon states to respect, protect, and promote the right to take part in cultural life.99 It asks States to promote the availability to access and enjoy cultural heritage, and encourages enhanced cooperation in “preventing and combating, inter alia, the organized looting, smuggling and theft of and illicit trafficking of cultural objects.”100 Similarly, wildlife of cultural significance, such as those revered for their spiritual importance, should be afforded protection from certain forms of harm including, inter alia, abuse, trafficking, and habitat destruction. While certain IEL treaties aim to protect wildlife in these ways, these treaties are limited in scope and enforcement capabilities, failing to adequately protect culturally significant wildlife.

II. Current International Environmental Law Instruments Fail to Adequately Protect Wildlife

A. Convention on International Trade in Endangered Species of Wild Flora and Fauna

While there is currently no international treaty specifically dealing with animal welfare,101 some IEL treaties deal more directly in wildlife conservation. The foremost international environmental law treaty protecting endangered and threatened species is CITES.102 CITES is a multilateral treaty aimed at protecting threatened and endangered species through restrictions on international trade.103 While the treaty is only legally binding on State parties, it includes provisions and rules for trade with non-State parties.104 Currently, there are 183 State parties to CITES.105 The treaty regulates trade of any “specimen” of a listed species.106 “Specimen”

94. See, e.g., Human Rights Council Res. 33/20, U.N. Doc. A/HRC/RES/33/20, at 5 (Sept. 30, 2016) [hereinafter CRPCH]. 95. Hague Convention, supra note 36, at pmbl. 96. Id. at art. 4. 97. CRPCH, supra note 94. 98. Id. at pmbl. 99. Id. 100. Id. 101. See generally David Favre, An International Treaty for Animal Welfare, 18 ANIMAL L. 237, 237–80 (2012). 102. See CITES, supra note 15. 103. See id. 104. See id. at art. X. 105. List of Contracting Parties, CITES, https://www.cites.org/eng/disc/parties/chronolo.php (last visited Apr. 1, 2020). 106. See CITES, supra note 15, at art. III–V. Article - Dibenedetto.fm Page 50 Tuesday, March 16, 2021 3:40 PM

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includes the animal themselves, alive or dead, and for any species listed in Appendices I and II, “any readily recognizable part or derivative thereof.”107 The level of protection afforded a species is based on how it is listed under the appendices of the treaty.108 While the goal of CITES is conservation rather than animal welfare, the treaty does contain language inclusive of welfare concerns.109 For example, Appendix I contains the most stringent provisions, applying to all species “threatened with extinction which are or may be affected by trade.”110 Trade in Appen- dix I species “must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.”111 There is a strict prohibition on exporting Appendix I species unless: (1) the export will not be detrimental to survival of the species; (2) the specimen was not obtained in violation of the exporting country’s laws for protection of wildlife; (3) living specimens are prepared and shipped to minimize the risk of injury, adverse health effects or cruel treatment; and (4) the exporting state is satisfied that an import permit has been granted by the destination state.112 In order to legally import an Appendix I species, the importing country must: (1) be advised by its Scientific Authority that the import will not be detrimental to the survival of the species; (2) be assured by the Sci- entific Authority that any recipient of a living specimen is able to properly care for it; and (3) be satisfied that the species will not be used for primarily commercial purposes.113 While protecting certain species from trade that would cause harm to both to individual themselves and the continued existence of the species is a powerful tool in protecting wildlife, CITES suffers from several considerable weakness in scope and enforcement.

The fact that CITES only provides protection to threatened and endangered species under the act is limiting. The listing criteria under the treaty has been subject to several changes over the years.114 While there is recognition of the cultural value of wildlife in the preamble, cultural value is not a factor in listing determinations.115 Thus, the treaty fails to fully realize the full breadth of value possessed by wildlife making them worthy of protection from harm. More- over, CITES only regulates trade and trafficking in listed species.116 It affords deference to States in managing and exploiting their own natural resources but provides no protection from various other forms of harm, particularly within its own borders.117 While trade and trafficking pose a significant threat to numerous species, many of the most pressing threats to wildlife are the result of habitat destruction from land-clearing activity, such as extractive industries

107. Id. at art. I(b)(i)–(ii). 108. Id. at art. II. 109. See CITES, supra note 15. 110. Id. at art. II(1). 111. Id. 112. Id. at art. III(2)(a)–(d). 113. Id. at art. III(3)(a)–(c). 114. See Shennie Patel, The Convention on International Trade in Endangered Species: Enforcement and the Last Unicorn, 18 HOUS. J. INT’L L. 157, 182 (1995). 115. See id. 116. CITES, supra note 15, at pmbl. 117. Id. (“[r]ecognizing that peoples and States are and should be the best protectors of their own wild fauna and flora”). Article - Dibenedetto.fm Page 51 Tuesday, March 16, 2021 3:40 PM

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(including logging and mining) and agriculture.118 For communities with a distinct interest in protecting the well-being and continued existence of culturally valuable wildlife from these harmful practices, there is no recourse under this treaty.

In terms of enforcement, CITES is not a self-executing treaty, thus it only becomes judi- cially enforceable through the implementation of domestic legislation.119 CITES does not have a centralized enforcement agency to investigate possible violations or impose uniform sanctions.120 Instead, Article VIII provides that the State parties will take “appropriate enforcement measures” including the imposition of penalties for the trade or possession of particular species.121 CITES does not provide any mandates or guidelines on imposition of penalties, and as a result, many State parties’ penalty provisions are inadequate to serve as deterrents against illegal trade.122 For example, CITES makes no mention of penalties either for international trade or for domestic trade.123 Finally, there are also considerable hurdles to enforcement of the treaty due to inequality in financial and technical resources.124 Even countries with vast resources experience practical issues with compliance due to the resources necessary to check and identify trade items and detect violations.125

B. Convention on Biological Diversity

As discussed above, animals are valuable for countless reasons. Two of particular concern to the IEL community are the value of wildlife as a natural resource to be used sustainably for the enjoyment of present and future generations and for its contribution to biological diversity.126 The IEL treaty that deals with sustainable use of wildlife for these purposes is the Con- vention on Biological Diversity (“CBD”).127 CBD came into force on December 29, 1993.128 Currently, there are 196 State parties to the treaty.129 CBD made a concerted effort to shift away from an anthropocentric approach to conservation (conserving charismatic megafauna) to a more ecosystem-centric approach. The objectives of CBD are

the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the uti-

118. Impact of Habitat Loss on Species, WORLD WILDLIFE FUND, https://wwf.panda.org/our_work/wildlife/problems/ habitat_loss_degradation/ (last visited May 2, 2020). 119. CITES, supra note 15, at pmbl. 120. Id. 121. Id. at art. VIII. 122. See Ninth Meeting of the Conference of the Parties, Implementation of the Convention within the European Union, at 4–5, CITES Doc. 9.23 (Nov. 7–18 1994). 123. Id. 124. See Patel, supra note 114, at 204. 125. See, e.g., UNITED STATES GENERAL ACCOUNTING OFFICE, WILDLIFE PROTECTION: FISH AND WILDLIFE SER- VICE’S INSPECTION PROGRAM NEEDS STRENGTHENING 2–3 (1994) (blaming compliance problems on limited inspection staff’s ability to monitor all shipments). 126. See discussion below. 127. CBD, supra note 16. 128. History of the Convention, CBD, https://www.cbd.int/history/ (last visited Mar. 2, 2020). 129. List of State Parties, CBD, https://www.cbd.int/information/parties.shtml (last visited Mar. 2, 2020). Article - Dibenedetto.fm Page 52 Tuesday, March 16, 2021 3:40 PM

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lization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.130

“Biological diversity” is defined in the treaty as “the variability among living organisms from all sources, including, inter alia, terrestrial marine and other aquatic ecosystems and the ecological complexes of which they are a part; this includes diversity within species, between species and of ecosystems.”131 Animals, which are referenced explicitly throughout the CBD,132 clearly fall within the treaty as components of biological diversity. Like CITES, CBD recognizes the “ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components[,]”133 recognizing animals as components of biological diversity.

In terms of promoting protection of wildlife within the umbrella of biological diversity, CBD requires, inter alia, that State parties create a national strategy, plan, or program for conserving biodiversity and integrating biodiversity conservation into economic planning,134 engage in in situ as well as ex situ conservation measures,135 and commit to sustainable use of biological components.136 Encouraging states to promote and implement measures in the furtherance of biodiversity protection is imperative to the adequate protection of wildlife.

CBD requires that State parties “[p]rotect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements[.]”137 This is perhaps the strongest language in the treaty offering consideration of protection and conservation of animals as cultural resources, though the language is limited to protection of the “use” of animals.

The treaty also concerns itself with providing resources to developing countries to aid in protection of their biological diversity.138 For example, Malaysia has made tremendous strides and leads developing countries in protecting its biological diversity, in part with the aid of non-

130. CBD, supra note 16, at art. 1. 131. Id. at art. 2. 132. See, e.g., id. at art. 2 (Ecosystem is defined as “a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.” (emphasis added). Genetic material is defined as “any material of plant, animal, microbial, or other origin containing functional units of heredity.” (emphasis added)); id. at art. 9(b) (encouraging states to establish and maintain facilities for ex-sit conservation of and research on plants, animals and microorganisms). 133. Id. at pmbl. 134. Id. at art. 6. 135. CBD, supra note 16, at art. 8; id. at art. 9. In-situ conservation refers to conservation of species within their natural habitat. Id. at art. 8. Ex-situ refers to conservation outside of a species habitat. Id. at art. 9. States should pri- oritize in-situ conservation. Ex-situ conservation should serve predominantly as a complement to in-situ measures. Id. 136. CBD, supra note 16, at art. 1. 137. Id. at art. 10(c). 138. Id. at pmbl. Article - Dibenedetto.fm Page 53 Tuesday, March 16, 2021 3:40 PM

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governmental organizations (“NGOs”) like World Wildlife Fund.139 Because developing countries are vulnerable to having their resources exploited by developed countries,140 it is imperative that they are given the tools and financial resources to protect biodiversity within their borders.

While CBD directs State parties to take positive steps to conserve biodiversity and provides resources to developing nations to protect their own natural resources—which protects animals through conservation measures—it falls short in protecting animals for their cultural significance. CBD focuses on sustainable use and equitable sharing of animals as natural resources.141 Sustainable use refers to the level of use which maximizes the benefits of the resource without depleting the population required to replenish the stock for consistent future use.142 Thus, the goal is not protection of wildlife itself, but only ensuring use compatible with the survival of the species and assuring sharing of benefits that arise from the exploitation of wildlife as “natural resources.”

Additionally, the treaty affirms that States have sovereignty to exploit their own national resources,143 affording a great deal of deference to State parties regarding practices that may otherwise be harmful to culturally significant animals. In addressing conservation as primarily a matter of national concern,144 CBD is lenient in prescribing responsibilities. State parties are only required to implement the provisions of the treaty as they see fit or feasible.145

There are several weaknesses common to both CITES and CBD. In addition to the fact that both treaties afford a great deal of deference to States regarding exploitation of their own natural resources,146 these treaties are further limited by lack of financial resources and enforcement mechanisms.147 Notably, both treaties lack an enforcement mechanism that would allow individuals and communities harmed when State parties deviate from their responsibilities under the treaty to seek redress.148 Thus, other international law tools must be explored if we want to provide more robust protection of animals for their deep cultural and spiritual significance.

139. Amanda Hubbard, The Convention on Biological Diversity’s Fifth Anniversary: A General Overview of the Conven- tion – Where has it Been and Where is it Going?, 10 TUL. ENVTL. L.J. 415, 430 (1997). 140. See id. at 419. 141. CBD, supra note 16, at art. 1. 142. Id. at art. 2. 143. Id. at art. 3. 144. Id. at pmbl. 145. See, e.g., CBD, supra note 16, at art. 7 (“As far as possible and as appropriate” - parties must identify biodiversity issues, monitor biodiversity, and identify processes and categories that will likely impact biodiversity); id. at art. 14 (“as far as possible and as appropriate[,]” State parties must introduce procedures requiring EIA on projects likely to have significant impact on biodiversity domestically or across borders). 146. CBD, supra note 16, at art. 3; CITES, supra note 15, at pmbl. 147. See discussion, supra Section II. 148. See Noah Sachs, Beyond the Liability Wall: Strengthening Tort Remedies in International Environmental Law, 55 UCLA L. REV. 837, 846 (2008) (“Primary treaties usually impose prospective obligations on governments to prevent environmental harm or manage shared resources, and they do not contain any provision allowing individuals to submit complaints to enforce their provisions or to seek damages.”). Article - Dibenedetto.fm Page 54 Tuesday, March 16, 2021 3:40 PM

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III. International Human Rights Law Contains Instruments that Protect Cul- tural and Historic Properties

As discussed above, the right to culture is recognized by several IHRL instruments.149 The foremost IHRL instrument dealing with cultural rights is the International Covenant on Eco- nomic, Social, and Cultural Rights (“ICESCR”).150 This treaty, which entered into force in 1976, recognizes that in addition to civil and political rights, economic, social, and cultural rights are necessary for the full realization of human rights.151 Currently, 170 countries are State parties to the ICESCR.152

Article 2 of the ICESCR requires each State party to take steps, “individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”153 It also requires that the State parties guarantee protection of the rights enunciated in the covenant without discrimination.154

Article 15(a) states that one such right is the right to take part in cultural life.155 It further explains the State parties should take necessary steps for the conservation, the development, and the diffusion of science and culture in order to achieve the full realization of this right.156 Due to the broad language used in Article 15(1)(a), State parties could follow their own interpretations of what the right to take part in cultural life encompasses.157 In response to uncertainty surrounding the meaning of the right to take part in cultural life, the CESCR issued General Comment No. 21158 on Article 15(1)(a) of ICESCR in 2009.159 In General Com- ment 21, CESCR clarified that the conditions necessary for the full realization of the right of everyone to take part in cultural life on the basis of equality and nondiscrimination includes availability of “nature’s gifts, such as seas, lakes, rivers, mountains, forests and nature reserves, including the flora and fauna found there, which give nations their character and biodiversity

149. See discussion, supra Section I. 150. ICESCR, supra note 31, at art. 15(1) (“The States Parties to the present Covenant recognize the right of everyone [] [t]o take part in cultural life.”). 151. Id. at pmbl. 152. Status of Ratification: International Covenant on Economic, Social, and Cultural Rights, OHCHR, https://indicators.ohchr.org (last visited Apr. 1, 2020). 153. ICESR, supra note 31, at art. 2(1). 154. Id. at art. 2(2). 155. Id. at art. 15(1)(a). 156. Id. at art. 15(2). 157. See Groni, supra note 49, at 23. 158. A general comment refers to a treaty body’s interpretation of human rights treaty provisions. What is the Purpose of the Human Rights Treaty Body General Comments?, DAG HAMMARSKJÖLD LIBRARY, (Jan. 6, 2020), http:// ask.un.org/faq/135547 (last visited Apr. 1, 2020). 159. Comm. on Econ., Soc. & Cultural Rts, Rep. on its Seventh Session., U.N. Doc. E/C.12/1992/2, ¶ 49 (1993) [hereinafter Report on the 7th Sess.] (stating that the purpose of general comments is to provide clarity to State parties about the rights granted in the ICESCR with the aim of further promoting the implementation of the covenant). Article - Dibenedetto.fm Page 55 Tuesday, March 16, 2021 3:40 PM

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[. . . ].”160 It defines culture as “a broad, inclusive concept encompassing all manifestations of human existence[,]”161 and states that cultural resources should be available.162 Availability refers to

the presence of cultural goods and services that are open for everyone to enjoy and benefit from, including libraries, museums, theatres, cinemas and sports stadiums; literature, including folklore, and the arts in all forms; the shared open spaces essential to cultural interaction, such as parks, squares, avenues and streets; nature’s gifts, such as seas, lakes, rivers, mountains, forests and nature reserves, including the flora and fauna found there, which give nations their character and biodiversity[. . .].163

As established, conservation of culturally significant wildlife is necessary for the maintenance of certain cultural identities. Thus, certain wildlife must be protected in order to protect many communities’ right to culture.

Additionally, as noted above, the right to culture has been recognized in the ICCPR.164 While ICCPR focuses on civil and political rights, Article 27 affirms the right to culture and states that in States with ethnic or religious minorities, persons belonging to those minorities cannot be denied the right to “enjoy their own culture.”165 In Lubicon Lake Band v. Canada, the Human Rights Committee (“HRC”), which is the treaty monitoring body of the ICCPR, acknowledged the importance of natural resources to the benefits of culture and explained that degradation of natural resources may violate ICCPR’s right to culture.166 Because wildlife is regarded as a natural resource, it could be argued under Lubicon that harm to wildlife may constitute a violation of the ICCPR.

IV. IHRL Instruments Can be Used to Better Protect Wildlife

A. Using International Human Rights Treaties to Protect Culturally Significant Wildlife

Hard law instruments like the ICESCR and the ICCPR create legally binding obligations on states to comply with the provisions of the treaties.167 The HRC possesses the power to hear complaints regarding alleged violations of enumerated ICCPR rights.168 In regards to the ICE-

160. Comm on Econ., Soc. & Cultural Rts., Gen. Comment No. 21, U.N. Doc. E/C.12/GC/21, ¶ 16(a) (2009). 161. Id. at ¶ 11. 162. Id. at ¶ 16(a). 163. Id. (emphasis added). 164. ICCPR, supra note 30, at art. 27. 165. Id. 166. G.A., Rep. of the Hum. Rts. Comm., U.N. Doc. No. A/45/40, at 1 (Mar. 26, 1990). 167. See discussion below at 36–39. 168. See Optional Protocol to the International Covenant on Civil and Political Rights, art. 14, Dec. 16, 1966, 999 U.N.T.S. 302 [hereinafter Optional Protocol to ICCPR] (granting to the Human Rights Committee the responsibility of hearing complaints from individuals claiming to be victims of ICCPR violations). Article - Dibenedetto.fm Page 56 Tuesday, March 16, 2021 3:40 PM

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SCR, signatories to the Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights (“Optional Protocol to ICESCR”) recognize the competence of the Com- mittee on Economic, Social and Cultural Rights to receive and consider communications.169 Article 2 of the Optional Protocol to ICESCR provides that communications may be submitted by or on behalf of individuals or groups of individuals under the jurisdiction of the State party who claim a violation of the treaty.170 As to both the ICESCR and the ICCPR, if a petition has been validly submitted to either relevant body and the petitioners have complied with all relevant requirements (i.e., exhaustion of domestic remedies), then it creates a right for individuals to enforce a State parties’ compliance when they have been stripped of a right guaranteed by the ICESCR171 or the ICCPR.172

Giving individuals the ability to bring complaints against State parties whose actions sub- stantially harm wildlife is an invaluable tool for providing greater protection for a wider array of species. Neither CITES nor CBD directly protect wildlife. Both treaties give deference to States to manage and exploit their own natural resources.173 CITES only restricts international trade in certain listed species,174 and CBD merely encourages State parties to adopt and implement measures that promote biological diversity.175 Additionally, while CBD and CITES both recognize the cultural value of wildlife,176 they encourage providing and promoting protection for wildlife based on species abundance and other ecological factors.177 Both the ICCPR and ICE- SCR allow individuals who are aggrieved by State parties’ actions causing damage to wildlife as cultural property to seek relief. Harm to wildlife as cultural property may also serve as an additional factor where other human rights are concerned. For example, a large development project that would cause pollution and displace a rural or indigenous community living on the land might violate several human rights under ICCPR. It would violate the right to life178 (by depriving a community of their homes and means of subsistence) as well as the right to privacy and family life (if environmental damage from the project made someone’s children sick).179 The same project could violate human rights obligations under ICESCR, implicating the right to health (if environmental damage made people sick),180 right to water (if the project polluted

169. G.A. Res. 63/117, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, art. 1 (Dec. 10, 2008) [hereinafter Optional Protocol to ICESCR]. 170. Id. at art. 2. 171. See Optional Protocol to ICCPR, supra note 168. 172. See Id. 173. CBD, supra note 16, at art. 3; CITES, supra note 15, at pmbl. 174. See CITES, supra note 15. 175. See CBD, supra note 16. 176. CITES, supra note 15, at pmbl; CBD, supra note 16, at pmbl. 177. CBD, supra note 16, at art. 3; CITES, supra note 15. 178. See ICCPR, supra note 30, at art. 6. 179. Id. at art. 17. 180. ICESCR, supra note 31, at art. 12. Article - Dibenedetto.fm Page 57 Tuesday, March 16, 2021 3:40 PM

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or destroyed an important water source),181 and right to adequate standard of living.182 If the project caused direct harm to the body or habitat of wildlife of cultural or spiritual significance, it could violate the right to culture under Article 15(1)(a) of ICESCR or Article 27 of ICCPR and provide an additional claim, bolstering complainants’ cases and further deterring State parties from engaging in environmentally destructive activities.

Using IHRL instruments, like the ICESCR, to protect culturally significant wildlife is far from a perfect solution. In the case of the ICESCR, the extent of enforcement of the treaty depends on both the disposition of the State party as well as the extent to which civil society can push for implementation of the decision. ICESCR contains language similar to the language contained in both CITES and CBD, expressing that State parties should undertake and protect these rights, including the right to culture “to the maximum of its available resources[.]”183

While the ICCPR enjoys fewer exceptions and stricter enforcement than the ICESCR,184 it also suffers from shortcomings in protecting wildlife as part of the right to culture. What it means to protect and ensure the right to culture remains unclear. The responsibility of State parties to ensure the right to culture has not been clarified under the ICCPR as it has under the ICESCR through General Comment 21. While the ambiguity contained in this right could be construed expansively to protect culturally significant wildlife, not all harm to culturally significant wildlife will constitute a violation of Article 27. Courts have held that a violation of Arti- cle 27 occurs when the impact of the State action is “so substantial that it does effectively deny [article 27 rights].”185 For example, in Äärelä v. Finland, a complaint to the HRC alleged that Finland’s substantial interference with the reindeer husbandry practices was of a matter of great cultural importance to the Sami people.186 Specifically, “the authors contend that [. . .] logging

181. Id. (ICESCR General Comment 14 clarifies that the right to the enjoyment of the highest attainable standard of physical and mental health includes access to potable water and adequate sanitation); id. at art. 11 (ICESCR General Comment 15 notes that the right to be free from hunger includes right to water). 182. Id. at art. 11. 183. Id. at art. 2(1). 184. Alison Dean, Unveiling the Complexities Surrounding the Right to Take Part in Cultural Life: The Effect of General Comment No. 21 on the Legality of the French Burqa Ban Under the ICESCR, 26 AM. U. INT’L L. REV. 1437, 1448 (2011) comparing ICESCR, supra note 31, at art. 4 (permitting the limitation of rights to promote the general welfare of a democratic society, so long as the limitation is compatible with the nature of the rights in the ICESCR), with ICCPR, supra note 30, at art. 4(1) (allowing states to limit certain rights during an official state emergency to the extent required by the exigencies of the situation, so long as the limiting measures do not discriminate solely on the basis of race, color, sex, language, religion, or social origin); id. comparing ICESCR, supra note 31, at art. 2(1) (articulating that states are only obligated to take steps to progressively achieve the full realization of the recognized rights), with ICCPR, supra note 30, at art. 2 (requiring State parties to respect and ensure the recognized rights to all individuals subject to state jurisdiction and to provide an effective remedy to individuals whose rights were violated). 185. See Hum. Rts. Comm., Länsman et al. v. Finland, Commc’n No. 511/1992, U.N. Doc. CCPR/C/52D/511/ 1992 (Nov. 8, 1994) (HRC did not consider logging covering 3,000 of 255,000 hectares to be a violation of Article 27). 186. See Hum. Rts. Comm., Äärelä v. Finland, Commc’n No. 779/1997, U.N. Doc. CCPR/C/73/D/779/1997 (Nov. 7, 2001). Article - Dibenedetto.fm Page 58 Tuesday, March 16, 2021 3:40 PM

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in the herding lands, coupled with a reduction at the same time of the permissible number of reindeer, amount[ed] to a denial of their right to enjoy their culture . . . ” under Article 27, “ . . . in community with other Sami, for which the survival of reindeer herding is essential.”187

The HRC found that there was insufficient evidence to determine that these practices denied the complainants the right to enjoy their own culture. Although logging and conse- quential waste would temporarily have adverse effects on the reindeer pasture, the HRC felt that it had not been properly shown that the consequences would create considerable, long- term effects which would prevent the authors from continuing reindeer herding in the area “to its present extent.”188 As shown by this case, protecting wildlife under the right to culture under both the ICESCR and the ICCPR is not a perfect solution.

Nevertheless, the close link between wildlife and culture is undeniable. For communities that value and treasure certain animals for their deep cultural and spiritual relationship, allowing for these types of complaints to be brought under IHRL provides an invaluable tool to directly protecting culturally significant wildlife regardless of a species’ abundance or ecological value.

B. Promoting Wildlife Conservation Through Soft Law Instruments That Promote and Protect the Right to Culture

Soft law instruments, while not binding on State parties, may serve to encourage States to promote wildlife protection as protection of cultural property. For example, the UNHRC Res- olution on Cultural Rights and the Protection of Cultural Heritage, which recognizes that damage to or destruction of cultural properties has an irreversible impact on the enjoyment of culture,189 could be construed to “promote the availability to access and enjoy cultural heritage.”190 This can be accomplished by encouraging States to work to prevent and combat illegal poaching and wildlife trafficking. States need to respect, protect, and promote the right to take part in cultural life. It asks States to promote the availability to access and enjoy cultural heritage, and encourages enhanced cooperation in “preventing and combating, inter alia, the organized looting, smuggling and theft of and illicit trafficking of cultural objects.”191

This resolution could be interpreted as a call for State parties to respect access to wildlife and not interfere with the right to access wildlife by enacting harmful policies. Such policies include allowing degrading and extractive industries like logging, mining, and agribusiness, which harm wildlife through deforestation and pollution. It could also call for international cooperation to prevent and combat illegal trade and trafficking of wildlife as cultural property. This would be a useful compliment to CITES in encouraging states to combat illicit trafficking of wildlife within a State’s border in addition to international trade. It would also cover culturally significant species, which are not always covered under CITES. For example, the State par-

187. Id. at ¶ 3.1. 188. Id. at ¶ 4.9. 189. CRPCH, supra note 94. 190. Id. 191. Id. Article - Dibenedetto.fm Page 59 Tuesday, March 16, 2021 3:40 PM

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ties to CITES have failed to agree to a ban on trading African lions. These lions are traded for their bones, teeth, and trophy heads.192 As discussed previously, lions hold deep cultural significance to many cultures across Europe, Africa, and Asia.193 Recognition of lions as cultural property warranting protection under IHRL could offer an additional avenue for protection where IEL currently falls short.

Additionally, UNDRIP includes several provisions on the preservation of cultural heritage.194 Signatories of UNDRIP have responsibilities to their indigenous inhabitants in pre- serving their rights to self-determination. This involves recognizing and respecting their rights to land, food sovereignty, the exercise of their cultural practices, and maintaining cultural identity.195 As discussed above, indigenous peoples are uniquely tied to wildlife as both a means of subsistence, and due to their close spiritual connection to wildlife—as in totemic societies.196 In addition to various provisions for the conservation of nature and natural resources, like Arti- cle 29, which states that indigenous peoples have the right to the conservation and protection of the environment,197 UNDRIP contains several provisions on the right to culture, which often involves the right to natural resources of cultural significance.

Article 12 of UNDRIP acknowledges that “[i]ndigenous peoples have the right to practice and revitalize their cultural traditions and customs.”198 Additionally, Article 25 states that indigenous peoples have the right to “maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.”199 Because many spiritual and cultural traditions of indigenous communities involve animals, the protection and maintenance of them involve the protection of culturally significant wildlife.

While UNDRIP is a soft law instrument, it holds a great deal of significance in influencing compliance with other human rights obligations as they pertain to indigenous peoples. In Kaliña and Lokono Peoples v. Suriname, eight indigenous communities brought a complaint before the IACHR against the government of Suriname for violations of the right to juridical personality, the right to collective property, political rights, and the right to judicial protection, rights all guaranteed under the American Convention on Human Rights (“ACHR”).200 The

192. TC, African Lions Denied Full Protection from International Trade, MAASAI WILDERNESS CONSERVATION TR. (Oct. 5, 2016), http://maasaiwilderness.org/2016/10/05/african-lions-denied-full-protection-international-trade. 193. See generally supra notes 53–56. 194. UNDRIP, supra note 48, at art. 3. 195. Id. 196. See generally supra notes 58–68. 197. UNDRIP, supra note 48, at art. 29. 198. Econ. & Soc. Council (“ECOSOC”), Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, Rep. of the Sub-Comm’n on the Prevention of Discrimination and the Prot. of Minorities, 46th Sess., Annex., at 109, U.N. Doc. E/CN.4/2 (1995), E/CN.4/Sub.2/56 (1994). 199. UNDRIP, supra note 48, at art. 25. 200. Kaliña and Lokono Peoples v. Suriname, Merits, Reparations and Cost, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 309, at 4, 28 (Nov. 25, 2015). Article - Dibenedetto.fm Page 60 Tuesday, March 16, 2021 3:40 PM

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complaint was brought because laws of Suriname did not recognize indigenous peoples as legal persons, and thus did not recognize standing for collective property rights.201 In their complaint, the authors repeatedly referenced UNDRIP, reading its provisions into its interpretation of the ACHR.202 The IACHR held in favor of the indigenous groups, stating that there was evidence that the UNDRIP itself was influencing the further development of standards in the inter-American system and beyond (noting influence of the Court’s jurisprudence over the African system).203 The Court further noted that this influence was blurring the distinction between “‘soft’ and ‘binding’ law and intensifying the interrelationship between indigenous rights in universal and regional human rights law.”204 While UNDRIP remains soft law, its influence has proven to be much broader. This instrument, which affirms the right of indigenous peoples to their culture and their environment, could be used to construe human rights obligations entitling them to their right to culture. The compounded effect that harm to wildlife would have on the right to culture, right to self-determination, and the conservation and protection of the environment would bolster a complaint under IHRL where culturally significant wildlife was implicated.

Conclusion

Ultimately, while IHRL is not a panacea to animal welfare and conservation issues, it provides a unique and important tool for animal protection in the form of protecting culturally significance wildlife as part of the human right to culture. While IEL treaties like CBD and CITES recognize the cultural value of wildlife,205 they encourage providing and promoting protection for wildlife based on species abundance and other ecological factors.206 IHRL instruments can provide additional protection for certain wildlife of cultural and spiritual significance, regardless of species’ abundance or value to biological diversity, and would allow for more direct protection. Individuals would be allowed to bring complaints against State parties (and in the case of ICESCR, State parties to the Optional Protocol to ICESCR) when State action posed a threat to culturally significant wildlife. Soft law instruments may also be valuable in encouraging states to protect wildlife of cultural significance (as with the UNHRC Res- olution on Cultural Rights and the Protection of Cultural Heritage) or helping to clarify States’ responsibilities under other IHRL obligations pertaining to the right to culture (as with UNDRIP). While these approaches are rooted in a view of animals as a tool to improve and enhance the lives of humans, they can be used to provide additional protection under international law—where protection for animals is sorely lacking.

201. Id. at 4. 202. Id. at 34. 203. Id. at 4. 204. Fergus MacKay, The Case of the Kaliña and Lokono Peoples v. Suriname and the UN Declaration on the Rights of Indigenous Peoples: Convergence, Divergence and Mutual Reinforcement, 1 ERASMUS L. REV. 31, 33 (2018). 205. CITES, supra note 15, at pmbl; CBD, supra note 16, at pmbl. 206. CBD, supra note 16, at art. 3; CITES, supra note 15. Article - Bantekas.fm Page 61 Tuesday, March 16, 2021 3:40 PM

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Reservations to the Convention on the Rights of Persons with Disabilities: Peer Engagement and the Value of a Clear Object and Purpose

Ilias Bantekas*

Introduction

The Convention on the Rights of Persons with Disabilities (“CRPD”), while seemingly culturally uniform across the globe, has raised several thorny issues, predominantly of a domestic nature. It constituted a mini revolution for international human rights architecture1 but is subject to many reservations. That mini revolution is manifest in the remarkable elimination of the medical approach to disability by clearly establishing disability within its social context.2 Moreover, by elevating disability-related rights to human rights, it introduced key principles in disability rights’ implementation by states, including, but not limited to, equality, universal design, and accessibility. States accepted the necessary financial cost associated with the realization of such rights. Also, States that do not typically become parties to human rights treaties, such as the Gulf States, quickly acceded to the CRPD.3 The CRPD is a battleground for competing ideas, theories, and stereotypes. At the same time, however, it gives rise to resource implications and forces States to think vigorously about how they can best spread the financial burden that the CRPD imposes between the public and the private purse (e.g., tax benefits in exchange for businesses hiring persons with disabilities or for adapting the workplace to universal design requirements). It is within this context that reservations to the CRPD should be assessed.4

Reservations to the CRPD are of a twofold nature, namely: (a) those of a sweeping nature; and (b) those against specific articles of the CRPD. Sweeping reservations have generally been lodged by developing countries, which by-and-large demonstrate that such States have not fully realized the deep structural changes that the social model of disability in the CRPD necessi- tates.

* Professor of International Law, Hamad bin Khalifa University (Qatar Foundation), College of Law and Adjunct Professor of Law, Georgetown University, Edmund A. Walsh School of Foreign Service. 1. See generally THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: A COMMENTARY (Ilias Bantekas et al. eds., Oxford Univ. Press 2018). 2. See Jerome E. Bickenbach, Disability, culture and the UN convention, 31 DISABILITY & REHAB. 1111, 1115 (2009); Steven R. Smith, Social justice and disability: Competing interpretations of the medical and social models, at 15, in ARGUING ABOUT DISABILITY (Kristiana Kristiansen et al. eds., Routledge 2009); see also Dimitris Anasta- siou & James M. Kauffman, The social model of disability: dichotomy between impairment and disability, 38 J. MED. & PHIL. 441, 450 (2013). 3. See Brenton Kinker, An Evaluation of the Prospects for Successful Implementation of the CRPD in the Islamic World, 35 MICH. J. INT’L L. 443, 448 (2014). Qatar maintains what is arguably the leading institution for children with disabilities. About Shafallah, AL SHAFALLAH CENTER FOR PERSONS WITH DISABILITY (2019), http://www.shafallah.org.qa/En/Pages/AboutShafallah.aspx. 4. See infra Section 4.3. Article - Bantekas.fm Page 62 Tuesday, March 16, 2021 3:45 PM

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The CRPD effectively dismissed the medical model of disability, which focuses exclusively on “within-individual” (biological, physical and psychological) factors that constitute impair- ments.5 The CRPD highlights the fact that understanding disability involves a systemic understanding at both individual and social levels— going beyond the sub-individual level. Reducing disability experience to impairment (loss or diminution of anatomical structure or physiologi- cal function or function of the mental-nervous system) sets aside the experience of people with disabilities—their engagement in social activities, social roles they play, social relationships they form, and the social struggle for transforming disability services in a disability-friendly social world.6 This represents a more general view than social constructionism. In the medical model, individuals are viewed as a body part or function, which leads to objectification. Objectifica- tion of a condition prevents one from seeing the whole person in its environment causing significant parts of personhood, developmental history, experiences, and expectations to be ignored. Furthermore, applying a medical perspective to any undesirable phenomenon can lead to a broader undue medicalization.7 Because of this, disability organizations and advocates have long campaigned to move away from perceiving disability through the lens of impairment (the medical model) to a model whereby physical, virtual, and other environments diminish the disadvantages of impairment. As a result, persons with disabilities are provided equal opportunities with their abled counterparts. Despite several other milestones, it was the adoption of the CRPD that led to the death of the medical model.

The CRPD rests on several pillars, some of which are unique to making human rights treaties. The first is the universal introduction of a social or human rights model of disability where the focus is on the creation of enabling environments. Second, disability rights in the CRPD are not new rights, but existing rights that have been adapted to create enabling environments. Third, in order to realize the first and second pillars, it is imperative that persons with disabilities enjoy unlimited accessibility. Accessibility, both physical and virtual in public and private spaces, is enshrined in CRPD Article 9 and is integral to equality and the pursuit of independent living.8 CRPD Article 4(1)(f) obliges States to construct, design and adapt all objects, services, materials and buildings based on a universal design.9 CRPD Article 2 defines universal design as “the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or special-

5. MICHAEL OLIVER, UNDERSTANDING DISABILITY: FROM THEORY TO PRACTICE 41–57 (Macmillan Publishers Ltd. 1st ed. 1996); MICHAEL OLIVER & COLIN BARNES, THE NEW POLITICS OF DISABLEMENT, 164–70 (Pal- grave 2012); see Dimitris Anastasiou & James M. Kauffman, A Social Constructionist Approach to Disability: Implications for Special Education, 77 EXCEPTIONAL CHILD. 367, 368 (Apr. 1, 2011); Anastasiou & Kauffman, supra note 2, at 449; TOM SHAKESPEARE, DISABILITY RIGHTS AND WRONGS, 92–110 (2d ed., Routledge 2013); Michael Ashley Stein, Disability Human Rights, 95 CALIF. L. REV. 75, 75–82 (2007). 6. Oliver, supra note 5, at 41–45; Oliver & Barnes, supra note 5, at 164–65; Anastasiou & Kauffman, supra note 2, at 445–50; SHAKESPEARE, supra note 5, at 95–100; Stein, supra note 5, at 80–85; Peter Townsend, Elderly People with Disabilities, in DISABILITY IN BRITAIN: A MANIFESTO OF RIGHTS, 91–118 (Alan Walker & Peter Townsend eds., 1981). 7. Oliver, supra note 5, at 41–47; Oliver & Barnes, supra note 5, at 168–72; Anastasiou & Kauffman, supra note 2, at 448; SHAKESPEARE, supra note 5, at 98; Stein, supra note 5, at 87–100; Townsend, supra note 6, at 91–118. 8. ILIAS BANTEKAS & LUTZ OETTE, INTERNATIONAL HUMAN RIGHTS LAW AND PRACTICE 591 (Cambridge Univ. Press, 3d ed. 2020). 9. Convention on the Rights of Persons with Disabilities art. 4(1)(f), Dec. 13, 2006, 2515 U.N.T.S. 3 (entered into force May 3, 2008) [hereinafter CRPD]. Article - Bantekas.fm Page 63 Tuesday, March 16, 2021 3:45 PM

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ised design.”10 “Universal design” shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.11 Fourth, it is imperative that persons with disabilities are not discriminated against by others, and that they enjoy de facto equality with all and equal opportunities.12 Given the absence of generally enabling environments, de facto equality requires that States take all appropriate measures to ensure the availability of reasonable accommodations.13

Discriminatory action that is oblivious to reasonable accommodation can be seen through the difficulties persons with HIV or similar virus-based diseases face on a daily basis. Their condition does not justify being dismissed in the workplace where they can still perform their ordi- nary functions or tasks through reasonable accommodation.14 Several domestic15 and international tribunals16 have held that where an HIV/AIDS-infected person is able to work, any interference with their employment, particularly where the ground for dismissal or action against the person relates exclusively to their medical condition, is discriminatory and prohibited. Fifth, the CRPD demands respect for the dignity of persons with disabilities, as well as individual autonomy to decide all matters concerning their person.17 This includes full participation and inclusion in society (CRPD Article 3), in addition to the right to independent living (CRPD Article 19).18 This is crucial because under the medical model, intellectually and mentally impaired persons were not considered able to make decisions regarding personal matters or reside outside of an institutional setting. Institutionalization and absence of legal capac-

10. Id. at art. 2. 11. Id.; see EDWARD STEINFELD & JORDANA L. MAISEL, UNIVERSAL DESIGN: CREATING INCLUSIVE ENVIRON- MENTS 3–15 (John Wiley & Sons 1st ed. 2012). 12. For further political analysis on the strengths and limits of the anti-discrimination paradigm, see Dimitris Anas- tasiou & James M. Kauffman, Disability as Cultural Difference, 33 REMEDIAL & SPECIAL EDUC. 139, 142–45 (2012). 13. See SANDRA FREDMAN, DISCRIMINATION LAW 95, 177, 224–30 (Oxford Univ. Press 2d ed. 2011); ANDREA BRODERICK, THE LONG AND WINDING ROAD TO EQUALITY AND INCLUSION FOR PERSONS WITH DISABILI- TIES: THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES 1–25 (Intersen- tia 2015); Comm. on the Rts. of Persons with Disabilities, Gen. comment No. 6 (2018) on equal. and non- discrimination, U.N. Doc. CRPD/C/GC/6 ¶¶ 14–22 (Apr. 26, 2018). 14. See INTERNATIONAL LABOUR ORGANIZATION, RECOMMENDATION CONCERNING HIV AND AIDS AND THE WORLD OF WORK 1–10 (2010), available at https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---pro- trav/---ilo_aids/documents/normativeinstrument/wcms_194088.pdf; see also Eur. Parl. Ass. Deb., AIDS and human rights, 41st Sess., Doc. No. 6104 (1989); Janet E. Lord & Rebecca Brown, The Role of Reasonable Accom- modation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities, at 273, in CRITICAL PERSPECTIVES ON HUMAN RIGHTS AND DISABILITY LAW (Marcia H. Rioux et al. eds., 2010). 15. See Hoffman v. South African Airways 2000 (1) SA 1 (CC) (S. Afr.) (holding that discrimination on the basis of a person’s HIV status, although not a disability, was the same as the general grounds of unfair discrimination listed in the Constitution); Canada (Attorney General) v. Thwaites (T.D.), [1994] 3 F.C. 38 (Can.) (holding that an employer must make all reasonable accommodation for an HIV sufferer); X v. Commonwealth, (1999) HCA 63 (Austl.) (holding that the applicant’s dismissal from the Australian army because he was HIV positive constituted unlawful discrimination. The Commission set up to hear the dispute should have should have taken into consideration “the places and circumstances in which the tasks of a soldier are to be performed”). 16. See I.B. v. Greece, App. No. 552/10, ¶¶ 61, 68, 87, 90 (Oct. 3, 2013) (holding that the dismissal from work of an HIV sufferer was discriminatory and in violation of the European Convention on Human Rights). 17. See CRPD, supra note 9, at arts. 1(1), 3(a), 5, 12, 14, 17. 18. See ARIE RIMMERMAN, DISABILITY AND COMMUNITY LIVING POLICIES 30–50 (Cambridge Univ. Press 2017). Article - Bantekas.fm Page 64 Tuesday, March 16, 2021 3:45 PM

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ity have been two of the most persistent obstacles to the full realization of disability rights. Sixth, given appropriate enabling environments, persons with disabilities can flourish in all ways of life. Therefore, it is important that any and all stigma associated with disability be elim- inated, whether by celebrating the contribution and diversity of persons with disabilities, or by educating society (CRPD Article 8).19 The awareness-raising obligation contained in CRPD Article 8 is an innovative and unique feature, which obliges States to inform their citizens about disability in order to eliminate prejudice and discrimination.20 Although many of the CRPD’s provisions are innovative, many States have used reservations to advance different interpretations of these provisions.

Reservations are a common feature of multilateral treaties, although there has been a ten- dency to reduce their frequency in human rights treaties of a humanitarian nature. In some cases, reservations have been forbidden from the outset.21 One should approach the term “reservation” conceptually rather than formalistically. Article 2(1)(d) of the 1969 Vienna Conven- tion on the Law of Treaties (“VCLT”) defines a reservation as “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”22 As the VCLT suggests, the legal effect of a reservation, however phrased (whether as a declaration, interpretative declaration, or something else) is to exclude or modify the binding nature of a treaty provision for the reserving State. In the context of a universal human rights treaty, this can pose several dangers.23 Since the CRPD claims not to create new rights but rather relies on existing ones, any reservation will constitute a regression on entrenched rights; this is unacceptable. Additionally, since the vast majority of the “existing” rights in the CRPD are part of customary international law, those reservations will negate customary obligations.24 Finally, given that the rights in the CRPD are interdepen- dent and indivisible, any reservation against one right necessarily impacts the effective enjoyment of other rights.25

19. See generally JENNY MORRIS, PRIDE AGAINST PREJUDICE: TRANSFORMING ATTITUDES TO DISABILITY (Women’s Press 1991). 20. See EVA BREMS & ALEXANDRA TIMMER, STEREOTYPES AND HUMAN RIGHTS LAW 1–50 (Eva Brems & Alexan- dra Timmer eds., 2016); Suzanne Leclerc-Madlala, On The Virgin Cleansing Myth: Gendered Bodies, AIDS and Ethnomedicine, 1 AFR. J. AIDS RES. 87, 88–93 (2002); Katrijn Dekoninck, Awareness Raising on the Rights of Persons with Disabilities Contribution to the Council of Europe Strategy on the Rights of Persons with Disabilities 1–5 (2017), https://rm.coe.int/final-study-awareness-raising/168072b421. 21. See Rome Statute of the International Criminal Court, art. 120, July 17, 1998, 2187 U.N.T.S. 38544 (prohibiting reservations to the Rome Statute). Most environmental treaties generally forbid reservations altogether. See Craig L. Carr & Gary L. Scott, Multilateral Treaties and the Environment: A Case Study in the Formation of Cus- tomary International Law, 27 DENVER J. INT’L L. & POL. 313, 319 (2020). 22. Vienna Convention on the Law of Treaties, art. 2(1)(d), Jan. 27, 1980, 1155 U.N.T.S. 331 [hereinafter VCLT]. 23. See generally RESERVATIONS TO HUMAN RIGHTS TREATIES AND THE VIENNA CONVENTION REGIME (Ineta Ziemele ed., 1st ed. 2004); THE VIENNA CONVENTION ON THE LAW OF TREATIES: A COMMENTARY (Oliver Corten & Pierre Klein eds., 1st ed. 2011); MARK E. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVEN- TION ON THE LAW OF TREATIES (Brill 2009). 24. See Michael A. Stein & Penelope J.S. Stein, Disability, Development and Human Rights: A Mandate and Frame- work for Financial Institutions, 47 U.C. DAVIS L. REV. 1231, 1236 (2014) (arguing that there is a body of international human rights law applicable to the CRPD that is of a customary nature). 25. See generally LIESBETH LIJNZAAD, RESERVATIONS TO UN HUMAN RIGHTS TREATIES: RATIFY AND RUIN? 1–22 (Brill 1994). Article - Bantekas.fm Page 65 Tuesday, March 16, 2021 3:45 PM

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The relevant provision on reservations in the CRPD is Article 46.26 This provision generally conforms to international law.27 The Optional Protocol to the CRPD Article 14 has a provision on reservations in similar terms to CRPD Article 46.28 Therefore, the discussion on Article 46 applies similarly in relation to Article 14 of the Optional Protocol to the CRPD. As will be observed in the analysis of the types of reservations added to the CRPD, these Articles may be construed in two possible ways: (a) their “mild” character is a reflection of a broad consensus and perhaps a false sense of achievement of the Convention’s objectives in domestic legal systems, or (b) there is really nothing contentious in the text of the Convention. It is evident that in respect of those human rights treaties already implemented in domestic legal systems, whether this is true or not, reservations, will be of a general political nature, reflecting an unwillingness to alter long-standing domestic policies or laws.

In practice, States have bypassed the wording of treaty texts through implementing legislation. Doing this creates a similar effect to that of a reservation.29 Implementing legislation that departs from the object or purpose of the CRPD will engage the responsibility of the concerned State and may be considered a reservation by the UN Secretary-General in his function as depository.30 Notably, State parties may expressly agree prior to a treaty coming into force that several powers of the Conference of (States) Parties (“COP” or “COSP”) be curtailed based on interpretative declarations.31 No such interpretative declarations have been entered in respect of the COSP’s powers under CRPD Article 40, but this may occur in the future if the COSP assumes powers and functions at the dismay of one or more parties.

Peer pressure against reservations has shifted in the last thirty years. While treaty bodies, such as the United Nations (“UN”) Human Rights Committee, were openly attacked in the early 1990’s for discussing reservations, current practice in the form of concluding observations

26. CRPD, supra note 9, at art. 46. 27. Id. 28. Id. at art. 46; Optional Protocol to the Convention on the Rights of Persons with Disabilities art. 14, 13 Dec. 2006, 2518 U.N.T.S. 283. 29. See Teodor Mladenov, The UN Convention on the Rights of Persons with Disabilities and its Interpretation, 7 ALTER EUR. J. DISABILITY RES. 69, 70–72 (2013); see also EUR. FOUND. CTR., STUDY ON CHALLENGES AND GOOD PRACTICE IN THE IMPLEMENTATION OF THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABIL- ITIES (VC/2008/1214) 10 (2010), available at https://www.sabancivakfi.org/i/assets/documents/executive_ summary.pdf. 30. The depositary is generally tasked with notifying member states of any new ratification, accession, denunciation, reservation, or other unilateral act relating to the treaty. This is known as a depositary notification. Article 77(1(d) of the VCLT states that a State may “examine whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the atten- tion of the State in question.” VCLT, supra note 22, at art. 77(1)(d); see Shabtai Rosenne, The Depositary of Inter- national Treaties, 61 AM. J. INT’L L. 923, 924–29 (1967). Although the U.N. Office of Legal Affairs (Treaty Section)’s “Final Clauses of Multilateral Treaties: Handbook” is cursory on this matter, this author is of the opinion that “communication” in this respect could be a notification by a state party concerning a disguised reservation in the form of an improper translation. U.N. OFF. OF LEGAL AFFAIRS (TREATY SECTION), FINAL CLAUSES OF MULTILATERAL TREATIES: HANDBOOK, at 1–5, U.N. Sales No. E.04.V.3 (2003) [hereinafter UN OLA]. 31. See Convention on Biological Diversity, opened for signature June 5, 1992, 1760 U.N.T.S. 79 (entered into force Dec. 29, 1993) [hereinafter CBD]. By way of illustration, on the basis of interpretative declarations to the CBD entered into by Switzerland, Italy, France, and the UK, the COP may only request developed countries to contribute financial assets to the “amount of resources needed” and that the CBD does not authorize the COP to take decisions concerning the amount, nature or frequency of the contributions from states parties. Id. Article - Bantekas.fm Page 66 Tuesday, March 16, 2021 3:45 PM

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on State reports have helped to remove animosity through continuous, non-confrontational, and constructive engagement.32 While concluding observations are not legally binding33 (this applies to the CRPD Committee),34 they engage States in a manner that allows them to review their practices over time. States do so in light of the best practices of other States, and ultimately adapt or nullify poor, non-compliant legislation. This is true where the observation relates to a treaty violation or a point giving rise to an important principle.35 For example, as a result of ongoing debates generated through concluding observations, the Australian Law Reform Commission recommended withdrawing Australia’s interpretive declaration on CRPD Article 12 as “driven by conceptual confusion that is impeding reform.”36 The same result can be achieved by general comments.37 However, unlike other treaty bodies, it is too early to tell whether the CRPD Committee can wield sufficient authority. In its Working Methods, the CRPD Committee has generally refrained from referring to general comments as interpretive. Instead, it has described them as mechanisms for facilitating States parties and organizations to implement the CRPD. By providing direction to States parties, it is also assumed by some scholars that general comments and concluding observations can lead to the effective lifting of reservations.38

I. Background and Travaux Preparatoires

Like other final clauses of the CRPD,39 not much discussion was undertaken with respect to Article 46, the provision on reservations. Discussions on all final clauses were only done at the end of the negotiation process, even though working papers and other materials had circulated.40 A Working Paper authored by Mexico in 2002 set out the following text of what was then draft Article 26 in the following terms:41

32. See The Study by H. Keller and L. Grover, “General Comments of the Human Rights Committee and their Legitimacy,” in H. Keller and G. Ulfstein (eds.), UN Human Rights Treaty Bodies (Cambridge University Press, 2012), 116–98, at 143. 33. Michael O’Flaherty, The Concluding Observations of United Nations Human Rights Treaty Bodies, 6 HUM. RTS. L. REV. 27, 33–36 (2006). 34. See Bantekas et al., supra note 1, at art. 36. 35. O’Flaherty, supra note 33, at 36. 36. AUSTL. L. REFORM COMM’N, EQUALITY, CAPACITY AND DISABILITY IN COMMONWEALTH LAWS: FINAL REPORT 49 (2014), available at https://www.alrc.gov.au/wp-content/uploads/2019/08/whole_dp81.pdf. 37. Gerald L. Neumann, Giving Meaning and Effect to Human Rights: The Contribution of Human Rights Committee Members 5 (Hum. Rts., Program Rsch. Working Paper Series, 2016) http://hrp.law.harvard.edu/wp-content/ uploads/2016/12/Gerald-L-Nueman_HRP-16_002.pdf. 38. Ron McCallum, The United Nations Human Rights Treaties: What Will Be Their Future Role in Protecting Our Human Rights? 9 (Sydney Law School Research Paper No. 15/90, 2015), http://ssrn.com/abstract=2674405. 39. The general handbooks dealing with the drafting and construction of final clauses in UN treaties apply in full. See generally UN OLA, supra note 30; U.N. Secretary-General, Secretary-General’s Bulletin: Procedures to be followed by the departments, offices and regional commissions of the United Nations with regards to treaties and international agreements, U.N. Doc. ST/SGB/2001/7 (Aug. 28, 2001). 40. Bantekas et al., supra note 1, at 1175–76. 41. Id. Article - Bantekas.fm Page 67 Tuesday, March 16, 2021 3:45 PM

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1. The Secretary General of the United Nations shall receive and circulate to all States the text of reservations formulated by States at the time of ratification or accession. 2. A reservation incompatible with the object and purpose of this Conven- tion shall not be permitted. 3. Reservations may be withdrawn at any time by virtue of notification to the Secretary General of the United Nations who shall, in turn, notify all States to the same effect. The notification shall take effect as of the date of its reception.42

This constitutes a much more informative version of the status and procedure of the current provision on reservations in Article 46. The exact text to draft Article 26 circulated again in 2003.43 The UN Secretary-General’s ability to receive reservations and objections is superfluous given his role as depositary to the CRPD. There is no equivalent role reserved for the COSP.44 The structure and wording of the reservations provision remained unchanged throughout 2004, at which time several identical versions were circulated.45 Later, a background conference document by the Office of the UN High Commissioner of Human Rights appeared on the draft final provisions.46 Although this was effectively identical to the drafts that had already circulated, it was bracketed with the intention of situating it within existing reservation provisions in international human rights treaties. The bracketed text (references to provisions from other human rights treaties in brackets are meant to show the influences in the drafting process) read as follows:

1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of [signature, – Article 91(1) CMW] ratification or accession. 2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted. 3. Reservations may be withdrawn at any time by notification to that [this – Article 91(3) CMW] effect addressed to the Secretary-General of the United Nations, who shall then inform all States [thereof – Article 91(3) CMW].

42. Ad Hoc Comm. on a Compressive and Integral Int’l Convention on Prot. and Promotion of the Rts. and Dig- nity of Persons with Disabilities, Working Paper by Mex. on its First Session, at arts. 261–63, U.N. Doc. A/ AC.265/WP.1 (Aug. 9, 2002). 43. See Ad Hoc Comm. on a Comprehensive and Integral Int’l Convention on Prot. and Promotion of the Rts. and Dignity of Persons with Disabilities on its Second Session, Compilation of Proposals for a Comprehensive and Integral Int’l Convention to Promote and Protect the Rts. and Dignity of Persons with Disabilities, U.N. Doc. A/AC.265/2003/CRP/13 (June 27, 2003). 44. See TREATY SECTION OF THE U.N. OFF. FOR LEGAL AFFAIRS, SUMMARY OF PRAC. OF THE SECRETARY-GEN- ERAL AS DEPOSITARY OF MULTILATERAL TREATIES, at 46–65, U.N. Doc. ST/LEG/7/Rev.1, U.N. Sales No. E.94V.15 (1999). 45. Bantekas et al., supra note 1, at 1176. 46. Id. Article - Bantekas.fm Page 68 Tuesday, March 16, 2021 3:45 PM

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Such notification shall take effect on the date on which it is received [by the Secretary-General – Article 51(3) CRC].47

By this stage it was clear that the drafters were adamant on applying a formula already in place and were reliant on the VCLT and customary international law for any residual issues that were not covered in this definition. What remains unclear is whether they anticipated the barrage of reservations, declarations, and objections that were later made by States parties, but there was some hint of this given the divergent views on several provisions in the CRPD. In any event, would a differently worded provision have made any difference? The answer is negative and treaty law allows both parties and objecting parties, significant leeway against reserving states. By the eighth session of the Ad Hoc Committee, it was decided that the additional text in draft Article 26 and later manifestations was superfluous. The current shorter version was preferred.48 The current text of Article 46 reads as follows:

1. Reservations incompatible with the object and purpose of the present Convention shall not be permitted. 2. Reservations may be withdrawn at any time.49

The following sections will explain how States have framed their unilateral declarations and reservations to the CRPD, and whether these are generally viewed as being compatible with its object and purpose.

II. The General Rule

Paragraph one of CRPD Article 46 implicitly allows reservations. It goes on to iterate the famous dictum by the International Court of Justice (“ICJ”) in its Advisory Opinion on Reserva- tions to the Genocide Convention.50 The World Court, in considering whether the several reservations put forward by the signatories to the 1948 Genocide Convention were lawful, pointed out that reservations are permissible between the reserving party and other member States if the latter concur.51 Reservations incompatible with the object and purpose of a treaty are not permissible, even in the theoretical scenario that all States concur.52 The rationale is that if a State placed a reservation against a fundamental building block of a treaty, such as the definition of the crime of genocide in the context of the Genocide Convention, the rest of the Convention would then become meaningless. This sensible rule is codified in VCLT Article 19(c).53 Even

47. Off. of the U.N. High Comm’r for Hum. Rts., Draft Final Provisions for the Disability Convention, 7th Session (2006). 48. U.N. Secretary-General, Final Rep. of the Ad Hoc Comm. on a Comprehensive and Integral Int’l Convention on the Prot. and Promotion of the Rts. and Dignity of Persons with Disabilities, U.N. Doc. A/61/611 (Dec. 6, 2006). 49. CRPD, supra note 9, at art. 46. 50. Bantekas et al., supra note 1, at 1176–79. 51. Now codified in VCLT Art. 20. See VCLT, supra note 22, at art. 20. 52. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opin- ion, 1951 I.C.J. 15 (May 28). 53. See DUNCAN B. HOLLIS, THE OXFORD GUIDE TO TREATIES 677 (Duncan B. Hollis ed., 2d ed., 2020). Article - Bantekas.fm Page 69 Tuesday, March 16, 2021 3:45 PM

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though reservations have no legal effect on objecting parties, as codified by VCLT Article 21,54 such an observation carries little practical impact in regards to a human rights treaty. This is because such treaties are not reciprocal in nature and the impact of the reservation will ultimately produce an impact and fall upon persons within the territory or under the control of the reserving State.55

There is no uniform, universally recognized definition as to the “purpose and object” of a treaty, as this varies according to each treaty’s purpose. The CRPD’s object and purpose are clearly spelled out in Article 1. However, every right and freedom contained in a human rights treaty embodies the very purpose of the treaty. Hence, each right constitutes a mini treaty and as a result, a reservation against a particular right ipso facto violates the object and purpose of the treaty in its entirety.56

Given the non-contractual impact of human rights treaties—as opposed to, for example, bilateral investment treaties and free trade agreements—the politics of reservations in treaty- making and objections to it are more significant in practice than the law itself. A reserving State may enter into a sweeping reservation because it is compelled to by its internal political, social, or religious stakeholders. For example, several Muslim-majority States routinely enter into sweeping reservations to the effect that if any provision is found incompatible with “Islam” it will not be binding upon them.57 Whatever the basis underlying a reservation, it is not uncommon for other States to oppose it for either (1) emphasizing that it violates the object and purpose of the treaty, (2) alerting the international community and nationals of the reserving State about the intentions of their government, or (3) exerting as much pressure as possible that the matter is far from over, given that the mantle will be taken over by Non-Governmental Organi- zations (“NGOs”), the Universal Periodic Review,58 and other private or public processes.59 Objections to reservations, especially those expressly declaring that the reservation in question is incompatible with the treaty, demonstrate the objecting party’s understanding of the treaty’s object and purpose. Even if a reservation is manifestly contrary to the object and purpose of a treaty, it is by no means certain that the reservation will carry the day. Alliances and political

54. Id. at 677–82. 55. Hum. Rts. Comm., General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (Nov. 4, 1994) [hereinafter HCHR General Comment 24]; see Elena A. Baylis, General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties, 17 BERKELEY J. INT’L L. 277, 278–82 (1999). 56. HCHR General Comment 24, supra note 55, at ¶¶ 8–10. 57. See Eleni Polymenopoulou, Human Rights in the Six States of the Gulf Cooperation Council (GCC): From Vision to Reality, 3 CARDOZO INT’L & COMP., POL’Y & ETHICS L. REV. 929 (2020) (arguing that GCC states’ human rights policies are predicated around their National Visions and although there has been significant progress in some of these states, Sharia-based reservations are common to all of them). 58. The Universal Periodic Review was born from UNGA Res 60/25, ¶ 5(e) and implemented by Human Rights Council Res 5/1 (June 18, 2007), Annex. See G.A. Res. 60/251, ¶ 5(e); Human Rights Council Res. 5/1, U.N. Doc. A/62/53, at annex (June 18, 2007). 59. See generally MARK SACHLEBEN, HUMAN RIGHTS TREATIES: CONSIDERING PATTERNS OF PARTICIPATION 1948-2000 65–81 (Routledge 2012). Article - Bantekas.fm Page 70 Tuesday, March 16, 2021 3:45 PM

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maneuvering continue to be a significant factor in treaty making. And one should not underes- timate the potency of peer pressure by other States and the effect of civil society in influencing States to modify, withdraw, or change it reservations.

The various sections of this article demonstrate that while some long-entrenched domestic policies and institutions on which reservations are premised are not amenable to political pressure, others may withdraw if sufficient pressure is applied. In cases where a reservation meets the disdain of other CRPD member States, general international law norms apply between the reserving and opposing States.60 The so-called “surgical approach” allows the reservation to remain valid between the reserving and opposing States while keeping the rest of the treaty intact.61 However, where the reservation is likely to defeat the CRPD’s object and purpose, the surgical approach is untenable and is in conflict with VCLT Article 19(c). The so-called “back- lash approach” is equally problematic. This approach posits that since consent is the corner- stone of obligation, the rejection of the reservation by opposing States effectively invalidates the reserving State’s consent to be bound.62 Hence, the reserving State need not hold itself bound by the remainder of the CRPD.63 The severability option, which was effectively pioneered by the UN Human Rights Council in the human rights domain in its General Comment No 24,64 states that non-essential reservations may be severed from the remainder of the obligations in a treaty.65 The problem is ascertaining which rights in the CRPD may be considered “non-essential,” particularly since the CRPD is premised on the notion that no new rights were introduced and hence all rights are pre-existing and fundamental.66 If this is the case, then none of the discussed approaches to reservations affords reserving States with comfortable solutions. A species of severability exists in practice, albeit without recognition of the validity of the reservation in question by opposing States or the CRPD Committee. This is a sensible practical solution that facilitates human rights diplomacy, Civil Society Organizations’ (“CSOs”) involvement, and continuous engagement with thorny issues.

The following subsection examines those reservations to the CRPD that became the subject of an objection by member States because of their alleged incompatibility with the object and purpose of the CRPD.

60. Roslyn Moloney, Incompatible Reservations to Human Rights Treaties: Severability and the Problem of State Consent, 5 MELBOURNE J. INT’L L. 155, 160–62 (2004). 61. Bantekas et al., supra note 1, at 1179–83. 62. Id. 63. See Catherine Redgwell, Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties, 64 BRIT. Y.B. INT’L L. 245 (1994); Catherine Logan-Piper, Reservations to Multilateral Treaties: The Goal of Uni- versality, 71 IOWA L. REV. 295, 296–302 (1985). 64. HCHR General Comment 24, supra note 55. 65. The severability test has also been applied by the ICJ in Certain Norwegian Loans, where the reservation in question was found to concern an essential obligation, and Switzerland v. USA (Interhandel case). Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J. Rep. 7, 59; Interhandel (Switz. V. U.S.), 1959 I.C.J. Rep. 4, 116. But see Int’l Law Comm’n, Rep. of the Int’l Law Comm’n on the work of its forty-ninth session, U.N. Doc. A/52/10, at 106–08 (1997) (negative reactions by the ILC Rapporteur Alain Pellet against General Comment No 24). 66. See Anna Lawson, The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?, 34 SYRACUSE J. INT’L L. & COM. 563, 564–70 (2007). Article - Bantekas.fm Page 71 Tuesday, March 16, 2021 3:45 PM

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III. Reservations Incompatible with the Object and Purpose of the CRPD

It is difficult to pinpoint with any degree of accuracy the object and purpose of a general human rights treaty. The CRPD provides two clear insights through its extensive preamble, but particularly Article 1(1), stating that, “The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”67 No CRPD member State lodged a reservation or interpretive declaration against CRPD Article 1(1).68 Authors Michael Stein and Janet Lord take the view that the purpose of the CRPD Article 1 extends to the conceptualization of “disability” set out in Article 1(2), by virtue of its inclusion in the provision that sets out the purpose of the CRPD.69 The key word in Article 1(1) is “all.” Full and equal enjoyment extends not only to fundamental rights but to “all” rights and freedoms. This means that the substantive rights in the CRPD, namely Articles 1–30, are of equal value and reflect the treaty’s object and purpose. In theory, therefore, reservations against these are not available, no matter how they are framed.

Reservations and interpretive declarations in the CRPD70 may be classified as twofold: (a) those of a general nature and which extend to an unknown number of substantive rights (this is the case with the sweeping invocation of Islam71 or budgetary constraints, effectively subjugating in a vague and unpredictable manner all substantive CRPD rights); and (b) reservations directed against a specific right by which it seeks to undermine the right in question entirely. As already explained, both types of reservations are invalid as being contrary to the CRPD’s object and purpose.

67. CRPD, supra note 9, at art. 1(1). 68. See Ratification Status: Convention on the Rights of Persons with Disabilities, U.N. DOC. A/RES/61/106. (May 3, 2008), https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV-IV-15.en.pdf (providing a list of signatories, reservations, and objections to the CRPD) [hereinafter “CRPD Reservations”]. 69. Michael Ashley Stein & Janet E. Lord, Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities, at 17–40 in THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: EURO- PEAN AND SCANDINAVIAN PERSPECTIVES (Gerard Quinn & Oddný Mjöll Arnadóttir eds., 2009). 70. See CRPD Reservations, supra note 68 (providing a list of signatories, reservations, and objections to the CRPD). 71. This has been a recurrent issue with several Muslim-majority states and their ratification/reservation practices to human rights treaties. See G.A. Res. 49/19-P, annex, Cairo Declaration on Human Rights in Islam (June 9, 1993) (representing some degree of consensus as to the application of human rights in Islam and which follows the same notion); BASIC LAW OF GOVERNANCE [CONSTITUTION] March 1, 1992, art. 1 (Saudi Arabia) (emphasizing that the country’s constitution is “Almighty God’s Book, the holy Quran, and the sunna (traditions) of the Prophet”); ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS: TRADITION AND POLITICS (5th ed. 2012). Article - Bantekas.fm Page 72 Tuesday, March 16, 2021 3:45 PM

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A. Reservations with Sweeping Invocations Based on Islam

As to the first category, some Muslim States whose constitutions are predicated on the Qur’an and its secondary sources, typically added sweeping reservations to human rights treaties,72 although this trend is diminishing. The few States that enter into sweeping Islamic-based reservations do so irrespective of the particular theme of the treaty. Given that Islam traditionally reserved a special place for persons with disabilities,73 in stark contrast to the practice of other civilizations, it is remarkable that sweeping reservations can have a place in a treaty that offers entrenched rights to persons with disabilities. The sweeping reservation of Brunei Darus- salam, a Muslim-majority State, reads as follows: “The Government of Brunei Darussalam expresses its reservation regarding those provisions of the said Convention that may be contrary to the Constitution of Brunei Darussalam and to the beliefs and principles of Islam, the official religion of Brunei Darussalam.”74

This was met with several objections by most EU member States and Peru. The Austrian objection of 3 February 2017 read in relevant part:

Austria considers that by referring to the Constitution of Brunei Darussalam and to the beliefs and principles of Islam Brunei Darussalam has made a reservation of a general and indeterminate scope. This reservation does not clearly define for the other States Parties to the Convention the extent to which the reserving State has accepted the obligations of the Convention. Austria therefore considers the reservation to be incompatible with the object and purpose of the Convention and objects to it. This objection shall not preclude the entry into force of the Convention between the Republic of Austria and Brunei Darussalam.75

On 24 April 2017, the UN Secretary-General announced receiving an objection from Italy in respect to Brunei’s reservation, stipulating that the reservation was incompatible with the object and purpose of the CRPD.76 Like Austria, Italy emphasized that its objection did

72. See Ann Elizabeth Mayer, Islamic Reservations to Human Rights Conventions: A Critical Assessment 15 RECHT VAN DE ISLAM 25, 26–28 (1998). Much of Mayer’s discussion may be redundant. For a trend of the reservations of Gulf Cooperation Council (GCC) states, see also Basak Cali et al., Big Promises, Small Gains: Domestic Effects of Human Rights Treaty Ratification in the Member States of the Gulf Cooperation Council, 38 HUM. RTS. Q. 21, 41 (2016). 73. See, e.g., Qur’an 48:17; see Hiam Al-Aoufi et al., Islam and the Cultural Conceptualization of Disability, 17 INT’L J. ADOLESCENCE & YOUTH 205, 2010–12 (2012). 74. CRPD Reservations, supra note 68, at Brunei Darussalam. 75. Id. at Objections: Austria. A similarly brief objection was entered into by Poland on 22 February 2017, by the Netherlands on 13 April 2017, and by Hungary on 13 April 2017. Id. at Objections: Poland, Objections: the Netherlands, Objections: Hungary. 76. Bantekas et al., supra note 1, at 1179. Article - Bantekas.fm Page 73 Tuesday, March 16, 2021 3:45 PM

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not preclude the entry into force of the CRPD between itself and Brunei.77 On 28 April 2017, Latvia communicated its own objection to the UN Secretary-General regarding the reservation of Brunei.78 Its justification, like Austria’s, was more extensive than its Italian counterpart.79

The Republic of Latvia considers that this reservation consists of a general reference to a system of law without specifying its contents and therefore does not clearly define the extent to which the reserving State has accepted the obligations of the Convention. Therefore, the Government of the Republic of Latvia considers that the reservation made by the Sultanate of Brunei Darussalam seeks to limit the responsibilities of the reserving State under the Convention and is likely to deprive the provisions of the Conven- tion of their effect and, hence, must be regarded as incompatible with the object and purpose of the Convention. Furthermore, under Article 46, paragraph 1 of the Convention on the Rights of Persons with Disabilities, reservations incompatible with the object and purpose of the Convention are not permitted.80

The objective of the UK objection to the Brunei reservation is less clear.81 It was made on 10 April 2017 and the objection does not specify whether the UK considers it incompatible with the object and purpose of the CRPD.82 Moreover, it is silent as to whether it considers the reservation to preclude the entry into force of the CRPD between the UK and Brunei.83 It reads as follows:

The Government of the United Kingdom notes that a reservation which consists of a general reference to a system of law without specifying its contents does not clearly define for the other States Parties to the Convention the extent to which the reserving State has accepted the obligations of the Convention. The Government of the United Kingdom therefore objects to the aforesaid reservation.84

Peru made an interesting objection to the Brunei reservation on 17 April 2017—the only non-European objecting State.85 While invoking the same rationale as EU member States on the substance of the reservation, it went on to say that although it considered Brunei bound to

77. Id. 78. Id. 79. Id. 80. CRPD Reservations, supra note 68, at N6. 81. Bantekas et al., supra note 1, at 1179. 82. Id. 83. Id. 84. CRPD Reservations, supra note 68, at Objections: United Kingdom. 85. Bantekas et al., supra note 1, at 1180. Article - Bantekas.fm Page 74 Tuesday, March 16, 2021 3:45 PM

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the CRPD in their mutual relations, it should not be read in a manner that allows Brunei to benefit from its reservation.86 The same was iterated in the Norwegian objection on 17 April 2017.87

A “declaration,” but effectively a reservation, that caused the same kind of reaction as Bru- nei’s reservation was made by Iran, which declared that “it does not consider itself bound by any provisions of the Convention, which may be incompatible with its applicable rules.”88 This invocation of vague “applicable rules” is more indeterminate than an express invocation of Islamic law, the typical benchmark of other treaty reservations by Muslim states. However, “applicable rules” includes, presumably, the Iranian Constitution of 1979. Article 2 of the Ira- nian Constitution reads, in relevant parts, as follows:89

1. the One God (as stated in the phrase “There is no god except Allah”), His exclusive sovereignty and the right to legislate, and the necessity of submission to His commands; 2. Divine revelation and its fundamental role in setting forth the laws; . . . 4. the justice of God in creation and legislation; 6. the exalted dignity and value of man, and his freedom coupled with responsibility before God; in which equity, justice, political, economic, social, and cultural independence, and national solidarity are secured by recourse to: a) continuous ijtihad of the fuqaha possessing necessary qualifications, exercised on the basis of the Qur’an and the Sunnah of the Ma’sumun, upon all of whom be peace.

Article 4 of the Iranian Constitution goes on to state that:90

All civil, penal financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the fuqaha’ of the Guardian Council are judges in this matter.

Effectively, the indeterminate character of Iranian “rules” is not only compounded by the sweeping and vague business of transforming a body of religious rules into a system of justice, but also by the fact that it must be validated by Iranian jurists (fuqaha), appointed and

86. Id. 87. Id. 88. CRPD Reservations, supra note 68, at Iran. 89. QANUNI ASSASSI JUMHURII ISLAMAI IRAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF IRAN] art. 2, 1358 [1980]. 90. Id. at art. 4. Article - Bantekas.fm Page 75 Tuesday, March 16, 2021 3:45 PM

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approved by the Revolutionary Council, based on independent reasoning (ijtihad).91 The use of ijtihad in this context is misleading given that independent reasoning is not only forbidden in practice, but may lead to accusations of apostasy.92

The Iranian declaration was objected to by many States on the ground that it is unclear to what degree Iran is willing to fulfil its obligations under the Convention.93 Even more to the point, Switzerland viewed the Iranian declaration as failing to specify neither the provisions of the Convention concerned nor the rules of domestic law that Iran intends to favour or escape from.94 All the objecting States declared that the Iranian declaration defeated the object and purpose of the treaty, but like their treatment of the Brunei reservation, they welcomed the entry into force of the CRPD by Iran.95

The CRPD Committee entertained similar concerns and requested Iran to remove its sweeping declaration.96 The Committee aptly demonstrated why the declaration violated the CRPD’s object and purpose. Specifically, Iran’s disability-related legislation viewed disability as a health condition or “disorder” that is “continuous” or “considerable” and prioritizes the prevention of impairment, medical treatment, and rehabilitation of persons with disabilities.97 Moreover, its legislation and policy measures entail “charity,” “care,” and “welfare” towards persons with disabilities rather than recognizing them as rights-holders.98

91. Bantekas et al., supra note 1, at 1181. 92. The use of ijtihad in the Iranian Constitution is misleading and is anything but independent reasoning. In classical Islamic law if an ijtihad ruling did not meet with general scholarly agreement (ijma) it was of no lasting value. Yet, there was a danger as to the cohesion of Islamic law in the unregulated business of ijtihad and eventually when the various Islamic legal schools coalesced as such into madhhabs the “power” of ijtihad was removed from simply anyone and granted exclusively to muftis. By the fourteenth century they in turn claimed that only the most knowledgeable among Islamic scholars could authoritatively postulate ijtihad, but alas it was proclaimed that there existed no such scholars since the demise of the founders of the four main madhhabs. This prohibition on ijtihad did not, however, stop all scholars from continuing to practice it, but certainly curtailed it almost to vanishing point. It is evident that to a very large degree the closure of the gates of ijtihad was related to the controlling mechanism of making fatwas, as is the case with Iran. See Wael B. Hallaq, Was the Gate of Ijtihad Closed?, 16 INT’L J. MIDDLE E. STUD. 3, 10–12 (1984). 93. See, e.g., CRPD Reservations, supra note 68 (referencing the objections by Slovakia of November 4, 2010, the objection by Portugal of November 2, 2010, and the objection by Belgium of June 28, 2010). 94. Id. at Objections: Switzerland. 95. Bantekas et al., supra note 1, at 1181. 96. Comm. on the Rts. of Persons with Disabilities on its Seventeenth Session, Concluding Observations on the Ini- tial Rep. of the Islamic Republic of Iran, ¶ 6-7, U.N. Doc. CRPD/C/IRN/CO/1 (May 10, 2017). 97. Bantekas et al., supra note 1, at 1181. 98. Id. Article - Bantekas.fm Page 76 Tuesday, March 16, 2021 3:45 PM

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B. Reservations Perpetuating Long-Standing Discrimination Policies

The declaration in Malaysia, a Muslim-majority State, did not concern Islam.99 Instead, it was a well-disguised reservation against a fundamental human right.100 It is a unique example of a reservation that attacks a specific right on the basis of constitutionally entrenched discrimination policies.101 It read as follows:102

Malaysia acknowledges that the principles of non-discrimination and equality of opportunity as provided in articles 3 (b), 3 (e) and 5 (2) of the said Convention are vital in ensuring full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity, which shall be applied and interpreted on the basis of disability and on equal basis with others. Malaysia declares that its application and interpretation of the Federal Constitution of Malaysia pertaining to the principles of non-discrimination and equality of opportunity shall not be treated as contravening articles 3 (b), 3 (e) and 5 (2) of the said Convention. Malaysia recognizes the participation of persons with disabilities in cultural life, recreation and leisure as provided in article 30 of the said Convention and interprets that the recognition is a matter for national legislation.103 Reservation: The Government of Malaysia ratifies the said Convention subject to the reservation that it does not consider itself bound by articles 15 and 18 of the said Convention.104

The declaration should be read against the backdrop of constitutionally sanctioned discrimination.105 Following the independence of Malaysia from the British in 1957, the succes- sor government viewed indigenous Malays as financially disadvantaged in comparison to other ethnic groups, particularly Malaysia’s ethnic Chinese minority.106 The ethnic Chinese minority had acquired some affluence as a result of commercial entrepreneurship, whereas the Malay majority lacked universal education, access to government, and in rural areas, people were considered “backward.”107 As a result, it was decided that a degree of positive discrimination was required in order to bring the level of the indigenous majority on par with that of the Chinese

99. Id. 100. Id. 101. Id. 102. CRPD Reservations, supra note 68, at Malaysia. 103. Id. 104. Id. 105. Bantekas et al., supra note 1, at 1182. 106. Id. 107. Id. Article - Bantekas.fm Page 77 Tuesday, March 16, 2021 3:45 PM

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minority.108 This principle was enshrined in the Malaysian Constitution’s Article 153(1) as an express exception to the general rule in Article 8(2) of the Malaysian Constitution.109 Article 8(2) prohibits discrimination of citizens on any ground, as follows: “It shall be the responsibility of the [Head of state] to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.”110

Those defined as ethnic Malays (or Bumiputras) were subsequently granted privileges over other minority members under the pretext that by doing so inter-ethnic tensions would be diminished.111 This amounted to outright discrimination in all fields of public and private life.112 By way of illustration, companies must have a minimum Bumiputra equity ownership if they are to be listed on the Malaysian stock exchange.113 Minorities are discriminated in employment opportunities in the public sector, subsidies for housing, and in most other fields.114 The effect of these policies has culminated in discrimination against all minority groups and many ethnic Chinese have been forced to leave the country.115 Of all the countries that objected to the Malaysian reservation, only the Dutch objection on 14 June 2016 referred to the sweeping claim of positive discrimination.116 It is unclear whether other objecting States failed to see the impact of the “declaration” or that they felt the reservations on Articles 15 and 18 were more serious.117

The Malaysian declaration concerning CRPD Articles 15 and 18 was attacked as a disguised reservation and held to be in violation of the object and purpose of the CRPD.118 Bel- gium’s objection on 28 June 2011 stated that:

The vagueness and general nature of the reservation made by Malaysia— which does not consider itself bound by Articles 15 and 18 of the Conven- tion-may contribute to undermining the bases of international human rights

108. See James Chin, The Costs of Malay Supremacy, N.Y. TIMES, Aug. 27, 2015, https://www.nytimes.com/2015/08/ 28/opinion/the-costs-of-malay-supremacy.html?mcubz=3. 109. THE FEDERAL CONSTITUTION OF MALAYSIA art. 153(1), (1957). 110. Id. at art. 8(2). 111. Bantekas et al., supra note 1, at 1182. 112. See generally SHAMSUL AMRI BAHARUDDIN, FROM BRITISH TO BUMIPUTERA RULE: LOCAL POLITICS AND RURAL DEVELOPMENT IN PENINSULAR MALAYSIA (Inst. of Se. Asian Stud. 1986) (presenting a study that sheds light on what has affected politics and policy in a Malaysian village and the multifaceted results these have had on its people). 113. Bantekas et al., supra note 1, at 1182. 114. Id. 115. See Noorfadilla Ahmad Saikin v. Chayed bin Basirun & Ors [2011] 1 M.L.J. 832, 834–35(Malay.). Some Malay- sian courts have braved the generalized policy of discrimination, pointing out that obligations in human rights treaties ratified by Malaysia produce direct effect and cause of action for affected persons, although it was not clarified if this also applied to reservations thereto. Id. at 834–35. 116. Bantekas et al., supra note 1, at 1182. 117. Id. 118. Id. Article - Bantekas.fm Page 78 Tuesday, March 16, 2021 3:45 PM

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treaties.119 Belgium further notes that the reservation made in respect of Article 15—concerning the prohibition against torture, which is an absolute protection and Article 18 concerns fundamental provisions of the Conven- tion and is incompatible with the object and purpose of that instrument.120

This view was shared by other parties to the CRPD and is a clear reflection of the notion that reservations against discrete human rights in multilateral treaties are incompatible with their object and purpose.121 The Malaysian 2008 Disability Act remains silent on many rights enshrined in the CRPD and provides no mechanism for grievances against violations of the CRPD.122

C. Reservations Relating to Budgetary Constraints

Reservations that effectively declare a state’s material inability to implement a right,123 whether socio-economic or civil/political is not a prima facie attack against the treaty’s object and purpose.124 That is why human rights treaties generally afford some degree of flexibility in the form of progressive realization and the obligation to satisfy the minimum core obligations of every right.125 The International Covenant on Economic, Social and Cultural Rights’ (“ICE- SCR”) Article 2(1) stresses that States are obliged to realize socio-economic rights by making the maximum use of their available resources.126 As a result, there is absolutely no justification for States to place an additional layer of complexity by way of a resource-related reservation to the implementation of their human rights obligations.

Poor States can design human rights-based budgets by making maximum use of their available resources. This in turn obfuscates the need for resource-related reservations. A budget that respects human rights and development must demonstrate a high degree of: 1) adequacy, essentially that a State made the maximum use of its available resource; 2) priority, whereby allocation has been made on the basis of a rights assessment; and 3) equity, in the sense that allocating policies are not discriminatory.127 The European Court of Human Rights128 and the European Committee on Social Rights have both adamantly held that States cannot under any circumstances justify violations of entrenched rights on account of subsequent loan or fiscal obligations assumed by treaty or contract, irrespective of the conditions imposed by their lend-

119. CRPD Reservations, supra note 68, at Objections: Belgium. 120. Id. 121. Bantekas et al., supra note 1, at 1182. 122. Persons with Disabilities Act, 2008 (Act No. 685/2008) (Malay.). 123. This has only sparingly been considered in the scholarly literature and are best known as post-ratification reservations. See Laurence R. Helfer, Not Fully Committed - Reservations, Risk, and Treaty Design, 31 YALE J. INT’L L. 367, 370–75 (2006). 124. BANTEKAS & OETTE, supra note 8, at 421. 125. Id. at 426. 126. International Covenant on Economic, Social, and Cultural Rights art. 2(1), Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force January 3, 1976). 127. BANTEKAS & OETTE, supra note 8, at 422. 128. Cap. Bank AD v. Bulg., App. No. 49429/99, ¶ 90 (Nov. 24, 2005). Article - Bantekas.fm Page 79 Tuesday, March 16, 2021 3:45 PM

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ers in such agreements.129 The Committee on Economic, Social and Cultural Rights (“CESCR”) has pointed out the minimum requirements for the implementation of socio-economic rights, irrespective of a country’s financial situation.130 These consist of the so-called minimum core obligations, consisting of the minimum essential levels pertinent to each right.131 Resource constraints, only under very exceptional circumstances, can be claimed as a justification to deny implementation of minimum core obligations.132

The CRPD Committee has occasionally, overstepped the mark between progressive and immediate implementation.133 In its treatment of CRPD Article 24, it noted that “progressive realization must be read in conjunction with the overall objective of the Convention” and that retrogressive measures must not disproportionately target learners with disabilities, nor impede the implementation of measures that are immediately applicable.134 The CESCR has been far more progressive, arguing that the obligation to make maximum use of a State’s resources requires governments to “take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities.”135 The notion of resources is broader than monetary assets and several entities, including the CRPD Commit- tee, have asked States to regularly evaluate domestic budgets and ensure that access to foreign funds (public or private) are CRPD-compliant.136 Effectively, States are not allowed to sub- scribe to borrowing conditions that forbid them from fulfilling their obligations under their CRPD, which in turn “‘forces’” them to append reservations based on resource constraints.137

This contextual discussion was useful to understand the inter-sectional issues arising from a resource-related reservation. Mauritius and Suriname both entered such reservations. Mauri- tius argued that accessibility under CRPD Article 9 was financially prohibitive.138 Similarly, Suriname cited financial constraints in meeting several obligations under the Convention.139 The aim of both reservations was to avoid the increased cost of reasonable accommodation,

129. Fed’n of Employed Pensioners of Greece (IKA-ETAM) v. Greece, App. No. 76/2012, ¶ 66–81 (Dec. 7, 2012); Pensioners’ Union of the Agric. Bank of Greece (ATE) v. Greece, App. No. 80/2012, ¶ 48 (Jan. 16, 2012). 130. BANTEKAS & OETTE, supra note 8, at 409. 131. Comm. on Econ., Soc. and Cultural Rts. [CESCR], Gen. Comment No. 3: The Nature of States Parties’ Obliga- tions, U.N. Doc. E/1991/23, ¶ 10 (1990). 132. Id. 133. See Comm. on the Rts. of Persons with Disabilities [CtRPD], Gen. comment no. 1, Article 12: Equal recognition before the law, U.N. Doc. CRPD/C/GC/1, ¶ 30 (2014). 134. Andrea Broderick, Article 4: General Obligations, in THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: A COMMENTARY 106, 118 (Dimitris Anastasiou et al., eds., 2018). 135. Id. at 119. 136. Id. 137. Ben T.C. Warwick, Debt, Austerity and the Structural Responses of Social Rights, in SOVEREIGN DEBT AND HUMAN RIGHTS 381 (Ilias Bantekas & C. Lumina eds. 2018). 138. Republic of Mauritius, Implementation of the U.N. Convention on the Rts. of Persons with Disabilities: Initial rep. submitted by States parties under Article 35 of the Covenant, at 7 (2012). 139. CRPD Reservations, supra note 68, at Suriname (“the Government of the Republic of Suriname declares that it shall not for the time being take any of the measures provided for in Article 9 paragraph 2 (d) and (e) in view of their heavy financial implication”). Article - Bantekas.fm Page 80 Tuesday, March 16, 2021 3:45 PM

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which would have been borne by private entities in addition to the State.140 This argument is untenable because the cost for reasonable accommodation can be structural (e.g., better tax allocation and tax collection) and not narrowly financial.141 Maximum budget allocation was at the heart of General Comment No. 9 of the Committee on the Rights of Children concerning the socio-economic rights of children with disabilities.142 The link between the obligation to make the maximum use of resources and subsequent resource-related reservations has not been highlighted or commented on enough by treaty bodies or in scholarly literature. Treaty bodies in their concluding observations do not possess the technical means to assess with any degree of accuracy if States parties have made the best possible use of their resources. As a result, States are unable to assess the veracity of a resource-related reservation.

D. Reservations Against Particular Rights

An interpretative declaration will not be considered a reservation if it merely explains the existing (e.g., legislative) position on a particular provision, particularly if the declaration pertains to an article that lends itself to various forms of implementation and/or construction that are not in conflict with the targeted provision.143 By late 2017, a mix of declarations and reservations had been made against particular rights, such as: substituted decision-making arrangements (Australia, Canada and the Netherlands);144 compulsory assistance or treatment (Australia and the Netherlands);145 immigrants (Australia and Japan);146 accessibility (Suri- name and Mauritius);147 right to work (Cyprus, Greece, Slovakia and the UK);148 legal capacity versus capacity to perform (Egypt, Estonia, Georgia, Kuwait, Mexico, Norway, Poland, Singa- pore, Syria and Venezuela);149 consent (France and the Netherlands);150 right to vote (France, Malta, Singapore and the Netherlands);151 right to marriage (Israel, Monaco, Poland and the Netherlands);152 sexual and reproductive health (Lithuania, Kuwait, Monaco, Netherlands,

140. See BANTEKAS & OETTE, supra note 8, at 421. 141. See, e.g., Int’l Disability All., IDA Submission on the Draft General Comment on Article 5 of the Convention on the Right of Persons with Disabilities (2017), https://www.ohchr.org/Documents/HRBodies/CRPD/GC/Equality/ IDA.docx. 142. See Comm. On the Rts. of the Child, Gen. comment No. 9 (2006): The rts. of child. with disabilities, U.N. Doc. CRC/C/GC/9 (Feb. 27, 2007). 143. See U.N. G.A., Rep. of the Int’l Law Comm’n, U.N. Doc. A/66/10, at 74 (2011) (highlighting the distinction between reservations and interpretative declarations). The commentary cites several international judgments in support of the thesis that the ‘original intention’ of the drafter of the reservation is crucial (i.e., as to whether there existed an intention to modify the legal effects of a treaty provision). Id. at 75. 144. CRPD Reservations, supra note 68, at Australia, Canada, the Netherlands. 145. Id. at Australia, the Netherlands. 146. Id. at Australia, Japan. 147. Id. at Suriname, Mauritius. 148. Id. at Cyprus, Greece, Slovakia, United Kingdom. 149. Id. at Egypt, Estonia, Georgia, Kuwait, Mexico, Norway, Poland, Singapore, Syria, Venezuela. 150. Id. at France, Netherlands. 151. Id. at France, Malta, Singapore, Netherlands. 152. Id. at Israel, Monaco, Poland, Netherlands. Article - Bantekas.fm Page 81 Tuesday, March 16, 2021 3:45 PM

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Norway, Poland and Malta);153 living independently (Kuwait and Suriname);154 freedom from torture (Malaysia);155 liberty of movement (Malaysia and the UK);156 right to education (Mau- ritius and the UK);157 situations of risk (Mauritius);158 right to life, particularly as regards abortion (Mauritius and the Netherlands);159 and insurance in relation to Article 25 (Singapore and Korea).160 The fact that no State objects to a declaration or reservation as being in conflict with the treaty’s object and purpose is not determinative.161 Naturally, some States will adopt standards higher than the CRPD, while others will need to time to achieve the standards stipulated. Understandably, some issues are far from settled in international law. While the right to life is an absolute entitlement, the right to an abortion is not and the unborn is not always regarded as a living entity.162 For example, the Maltese in a declaration stated that the phrase “sexual and reproductive health” in CRPD Article 25(a) is not understood as giving rise to a right of abortion.163 Although the Maltese report has not yet been assessed, the Committee examined the Lithuanian report, whereby the State made a declaration like Malta.164 While the Committee made no reference to the Lithuanian declaration, it raised concern about the State’s civil code which “makes it possible for persons with disabilities who have been deprived of legal capacity to undergo, without their consent, surgical operations, including castrations, sterilizations, abortions and operations for the removal of organs, upon authorization by a court.”165 The following three sub-sections examine reservations to three particular rights along with their respective contexts.

E. Reservations Concerning Substitute Decision-Making

Reservations against CRPD Article 12, along with general sweeping reservations, were the most concerning because they struck at the very heart of the Convention. In the view of the CRPD Committee, Article 12 dismisses the application of limited or reduced capacity and introduces what it terms a “universal legal capacity,” which States are not permitted to limit on

153. Id. at Lithuania, Kuwait, Monaco, Netherlands, Norway, Poland, Malta. 154. Id. at Kuwait, Suriname. 155. Id. at Malaysia. 156. Id. at Malaysia, United Kingdom. 157. Id. at Mauritius, United Kingdom. 158. Id. at Mauritius. 159. Id. at Mauritius, Netherlands. 160. Id. at Singapore, South Korea. 161. See generally The Effect of Objections to Treaty Reservations, 60 YALE L.J. 728 (1951). 162. See Smitha Nizar, Article 10, in THE UN CONVENTION OF THE RIGHTS OF PERSONS WITH DISABILITIES: A COMMENTARY 287 (Ilias Bantekas et al. eds., 2018). 163. CRPD Reservations, supra note 68, at Malta. 164. Bantekas et al., supra note 1, at 183–84. 165. Comm. on the Rts. of Persons with Disabilities, Concluding Observations on the Initial Report of Lith., ¶ 37, U.N. Doc. CRPD/C/LTU/CO/1 (2016). Article - Bantekas.fm Page 82 Tuesday, March 16, 2021 3:45 PM

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grounds of disability or mental incapacity.166 The implication is that all forms of substitute decision-making are unlawful under the CRPD. This is a radical proposition and has given rise to heated debates. Without failure, the CRPD Committee in its review of State reports, has condemned overt and disguised practices that fetter the freedom of persons with disabilities to decide on matters of personal concern or practices that effectively strip persons with disabilities of individual freedoms (such as the right to start a family or the right to vote).167

Canada, the Netherlands, Australia, Poland, Egypt, Estonia, Singapore, and Norway all submitted interpretive declarations by which they understood Article 12 as encompassing substitute decision-making, deprivation of legal capacity or guardianship.168 The Egyptian interpretative declaration on Article 12(2) stipulated that “persons with disabilities enjoy the capacity to acquire rights and assume legal responsibility ('ahliyyat al-wujub) but not the capacity to perform ('ahliyyat al-'ada'), under Egyptian law.”169

Against this background, in its first concluding observations, the CRPD Committee emphasized the urgency of replacing substitute decision-making by supported decision-making schemes or practices.170 In 2014, it adopted General Comment No. 1 on Article 12 (“‘General Comment No. 1’”)171 by which it made its position clear to all States, grounding it in the human rights-based model of disability.172 Although the Committee’s interpretation in General Comment No. 1 has not been met with universal approval, particularly by the medical profes- sion,173 it has impacted the thinking belying reservations to Article 12.

166. Comm. on the Rts. of Persons with Disabilities, Gen. comment No. 1, U.N. Doc. CRPD/C/GC/1, (May 19, 2014) [hereinafter General Comment 1]; Amita Dhanda, Universal Legal Capacity as a Universal Human Right, in MENTAL HEALTH AND HUMAN RIGHTS: VISION, PRAXIS, AND COURAGE 177 (Michael Dudley et al. eds., Oxford Univ. Press 2012); Eilionoir Flynn & Anna Arstein-Kerslake, Legislating Personhood: Realising the Right to Support in Exercising Legal Capacity, 10 INT’L J. L. IN CONTEXT 81, 87–90 (2014). 167. See Lucy Series & Anna Nilsson, Article 12: Equal Recognition before the Law, at 339 in THE UN CONVENTION OF THE RIGHT OF PERSONS WITH DISABILITIES: A COMMENTARY (Ilias Bantekas et al. eds., Oxford Univ. Press 2018). 168. CRPD Reservations, supra note 68, at Australia, Canada, Egypt, Estonia, Netherlands, Norway, Poland, Singa- pore. 169. Id. at Egypt. 170. See, e.g., Comm. on the Rts. of Persons with Disabilities, Consideration of reports submitted by States under article 35 of the Convention: Tunis., U.N. Doc. CRPD/C/TUN/CO/1 ¶¶ 22–23 (May 13, 2011); Comm. on the Rts. of Persons with Disabilities, Consideration of reports submitted by States under article 35 of the Con- vention: Spain, U.N. Doc. CRPD/C/ESP/CO/1 ¶¶ 33–34 (Oct. 19, 2011); Comm. on the Rts. of Persons with Disabilities, Consideration of reports submitted by States under article 35 of the Convention: Peru, U.N. Doc. CRPD/C/PER/CO/1 ¶¶ 24–25 (May 9, 2012); Comm. on the Rts. of Persons with Disabilities, Consideration of reports submitted by States under article 35 of the Convention: China, U.N. Doc. CRPD/C/CHN/CO/1 ¶¶ 21–22 (Sept. 27, 2012); Comm. on the Rts. of Persons with Disabilities, Consideration of reports submitted by States under article 35 of the Convention: Arg., U.N. Doc. CRPD/C/ARG/CO/1 ¶¶ 19–20 (Oct. 8, 2012); Comm. on the Rts. of Persons with Disabilities, Consideration of reports submitted by States under article 35 of the Convention: Austl., U.N. Doc. CRPD/C/AUS/CO/1 (Oct. 21, 2013) [hereinafter Australia CRPD]. 171. General Comment 1, supra note 166, at ¶ 3. 172. Id. 173. Series & Nilsson, supra note 167, at 346–47; Melvyn Colin Freeman et al., Reversing hard won victories in the name of human rights: a critique of the General Comment on Article 12 of the UN Convention on the Rights of Per- sons with Disabilities, 2 LANCET PSYCHIATRY 844, 844–50 (2015); John Dawson, A Realistic Approach to Assess- ing Mental Health Laws’ Compliance with the UNCRPD, 40 INT’L J. L. & PSYCHIATRY 70, 71–73 (2015). Article - Bantekas.fm Page 83 Tuesday, March 16, 2021 3:45 PM

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The Australian declaration concerning substituted decision-making stipulates that:174

Australia recognizes that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life.175 Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards.176

While the Australian declaration did not support a regime of substitute decision-making, the CRPD Committee was concerned that such a regime would be maintained in the absence of a viable alternative and recommended the adoption of immediate measures towards a system of full autonomy.177 Therefore, even a declaration that does not purport to modify the legal effects of a provision may ultimately, inadvertently or otherwise, produce such an impact as to be tantamount to a reservation. The persuading arguments of General Comment No. 1 led the Australian Law Reform Commission to recommended withdrawing Australia’s interpretive declaration on Article 12 as “driven by conceptual confusion that is impeding reform.”178 The UK followed suit and in its concluding observations to the UK report, the CRPD Committee com- mended the withdrawal of the reservation to Article 12(4).179

The reporting procedure in the CRPD has helped not only to dissuade States from retain- ing particular reservations, but also set up a broader dialogue for reserving States to discuss pertinent issues domestically. This is evident in the CRPD Committee’s engagement with the Canadian reservation to Article 12. The Committee requested that Canada provide information within 12 months of the adoption of the concluding observations on measures taken to implement the recommendations regarding Canada’s declaration and reservation to Article 12(4). Additionally, the Committee addressed intersecting forms of discrimination through legislation and public policies.180 The Committee’s concluding observations are an effective, non-intrusive and non-antagonistic form of dialogue with reserving States.181 Moreover, it constitutes a tool by which to “soften” and ultimately help remove reservations.

174. CRPD Reservations, supra note 68, at Australia. 175. Id. 176. Id. 177. Id.; see also Comm. on the Rts. of Persons with Disabilities, Concluding Observations on the Initial Report of Can., U.N. Doc. CRPD/C/CAN/CO/1, ¶ 7–8 (May 8, 2017) (referring to a similar outcome) [hereinafter Can- ada CRPD]. 178. See Austl. Law Reform Comm’n, supra note 36. 179. Comm. on the Rts. of Persons with Disabilities, Concluding observations on the initial rep. of the U.K. of Gr. Brit. and N. Ir., U.N. Doc. CRPD/C/GBR/CO/1, ¶ 4 (Aug. 29, 2017). 180. Canada CRPD, supra note 177, at ¶ 60. 181. See Peter Bartlett, The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law, 75 MOD. L. REV. 752 (2012). Article - Bantekas.fm Page 84 Tuesday, March 16, 2021 3:45 PM

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F. Reservations Against Freedom of Movement

CRPD Article 18 concerns freedom of movement of persons with disabilities.182 Although freedom of movement limitations are prevalent in cross-border travel for all persons, there is an inter-sectional dimension in the disability context. By way of illustration, developed States tend to grant employment visas to young, healthy foreign workers, which naturally discriminates against persons who are elderly or who have disabilities.183 Even travel restrictions are not uncommon against persons with disabilities. Airlines and other transport entities may make it onerous for people with disabilities to travel by charging an additional seat for equipment, requiring a care-giver, or by making no reasonable accommodation for wheelchairs or other necessary medical devices.184 The UK reservation concerning restrictions on liberty of movement, under CRPD Article 18, purported to reserve:185

the right to apply such legislation, insofar as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, as it may deem necessary from time to time.186

Although this reservation cannot encompass refugees187 and is otherwise consistent with the sovereign right of States to restrict the entry of immigrants in their territories,188 it is detrimental to persons that have incurred a disability while in flight from a humanitarian crisis and are unlikely to survive a return journey.189 Unlike its substantive comments on other reservations, the CRPD Committee did not act likewise in respect to the UK reservation on Article 18

182. CRPD, supra note 9, at art. 18. 183. See Carolyn Zaikowski, “Canada is a Progressive Immigration Dream Unless You Have a Disability,” Washington Post, (February 5, 2017). . 184. See FirstGroup Plc v. Paulley [2017] UKSC 4 (concerning travel restrictions on private buses); Ross v. Ryanair Ltd. & Anor [2004] EWCA Civ. 1751 (holding that a wheelchair user should not be charged an extra fee for using a wheelchair at the airport, since this constitutes discrimination under the British Disability Discrimina- tion Act); Int’l Civil Aviation Org. [ICAO], Manual on Access to Air Transport by Persons with Disabilities, ¶10.5, ICAO Doc. 9984 (Mar. 2013). 185. CRPD Reservations, supra note 68, at United Kingdom. 186. Id. 187. BANTEKAS & OETTE, supra note 8, at 422; see also infra note 172 (stating that Refugee status is assessed objec- tively under the terms of Article 1A(2) of the 1951 Convention relating to the Status of Refugees. Hence, Article 1A(2) is lex specialist and overrides any other considerations). 188. See Draft articles on the expulsion of aliens, with commentaries, [2011] 2 Y.B. Int’l L. Comm’n, (stating that the general rule is that, with the exception of refugees, states are free to admit any person on their territory, but there several imitations on expulsion under international law exist). 189. See U.N. Dep’t of Econ. and Soc. Affairs, Refugees and migrants with disabilities, https://www.un.org/development/desa/disabilities/refugees_migrants_with_disabilities.html; see also the 2016 UN Charter on Inclusion of Persons with Disabilities in Humanitarian Action; see also Hum. Rts. Comm., Gen. comment No 15: The position of aliens under the Covenant, U.N. Doc. HRI/GEN/1/Rev9(Vol. 1) ¶ 5–6, 8 (Apr. 11, 1986) (holding where it was held that once an alien is admitted in a state’s territory, he or she is entitled to all fundamental rights as stipulated in Article 12(3) of the ICCPR). Article - Bantekas.fm Page 85 Tuesday, March 16, 2021 3:45 PM

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and simply noted its concern and requested to withdraw.190 It is no wonder that the UK Equal- ity and Human Rights Commission found this reservation to be incompatible with the principle of non-discrimination under CRPD Article 5, and the foundational premises of the Convention.191 The Commission painfully explained that while immigration controls were necessary and legitimate, these could not be exercised in a discriminatory manner on the basis of disability.192 Moreover, it emphasized that Article 18 should not be viewed as a restriction on the authority of the UK to regulate the conferral of citizenship.193

Australia, like the UK, which is a refugee destination State in the developed world, like felt that Article 18 could become a threat to its refugee policy that would allow persons with disabilities in flight to take advantage of asylum legislation and remain indefinitely.194 The Austra- lian interpretive declaration was meant to clarify from its end that:

the Convention does not create a right for a person to enter or remain in a country of which he or she is not a national, nor impact on Australia’s health requirements for non-nationals seeking to enter or remain in Australia, where these requirements are based on legitimate, objective and reasonable criteria.195

This declaration aims at maintaining immigration rules in force. It permits entry to immigrant persons with disabilities while serving to restrict their eligibility for pensions and disability support for up to a decade.196 Like the UK, the Australian declaration encompasses a financial dimension and aims to deter persons with disabilities from seeking to make use of its health and social benefits system. This stance, however, produces a severe impact on Australia’s overall refugee policy and its treatment of refugees.

Apart from industrialized States, some developing States have equally entertained reservations to Article 18; chief among these States are Malaysia and Thailand.197 Unlike the Austra- lian and UK rationale, the reason for the Malay reservation was internal in nature, predicated on its discriminatory Bumiputra policy (as discussed above). This explains why despite concerted and vociferous objections by several States, it refused to forego its constitutionally entrenched policy of discrimination. On the contrary, Thailand had no reason to sustain a reservation on Article 18. Following pressure from European States it withdrew its reservation.198

190. Concluding Observations on the Initial Report of the United Kingdom of Great Britain and Northern Ireland, supra note 179, at ¶ 42. 191. U.K. PARLIAMENT, MEMORANDUM SUBMITTED BY THE EQUALITY AND HUMAN RIGHTS COMMISSION, ¶¶ 3.8–3.9 (Jan. 4, 2009), https://publications.parliament.uk/pa/jt200809/jtselect/jtrights/9/09we18.htm. 192. Id. 193. Id. 194. See Sahar Okhovat, With Empty Hands: How the Australian Government is forcing people seeking asylum into destitution, REFUGEE COUNCIL OF AUSTL. (June 18, 2018), https://www.refugeecouncil.org.au/with-empty-hands- destitution/. 195. Bantekas et al., supra note 1, at 523. 196. See Migration Regulations 1994 (Cth.) sch 4 pt 1 div 4005 sub-div 1 (Austl.). 197. CRPD, Thailand Reservation, Dec. 13, 2006, 2515 U.N.T.S. 3 (withdrawn Feb. 5, 2015). 198. Id. Thailand informed the U.N. Secretary-General that it withdrew its Article 18 interpretive declaration. Id. Article - Bantekas.fm Page 86 Tuesday, March 16, 2021 3:45 PM

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G. Reservations Concerning Inclusive Education

Given that several provisions of the CPRD effectively require on occasion the wholesale reform of long-standing policies and political structures, certain member States reacted with emphatic interpretive declarations when said policies and structures came under threat. In particular, the UK and Mauritius added interpretive declarations against CRPD Article 24, emphasizing that inclusive education did not preclude the existence of specialized units such as special classes and schools.199 In justifying its persistence to the interpretive declaration, which has been fiercely resisted by many NGOs, the UK Joint Committee on Human Rights held that “the Government feels it necessary to enter a reservation and an interpretative declaration to make clear its understanding that a commitment to inclusive education is not incompatible with the continued existence of special schools.”200 The CRPD Committee, in its concluding observation on the UK report, requested that its reservation be withdrawn without delay, noting with concern that:

a. The persistence of a dual education system that segregates children with disabilities in special schools, including based on parental choice; b. The increasing number of children with disabilities in segregated education environments; c. The fact that the education system is not equipped to respond to the requirements for high-quality inclusive education, particularly reports of school authorities refusing to enroll a student with disabilities who is deemed to be “disruptive to other classmates; d. The fact that the education and training of teachers in inclusion competences does not reflect the requirements of inclusive education.201

While the UK government had not at the time of writing withdrawn its reservation against Article 24, there was strong dissent across disability-related organizations, which placed sustained pressure on the government.202 The Committee’s concluding observations requesting withdrawal of the UK reservation were reproduced across the UK.203

199. See generally THE RIGHT TO INCLUSIVE EDUCATION IN INTERNATIONAL HUMAN RIGHTS LAW (Gauthier De Beco et al. eds., Cambridge Univ. Press 2019) (stating that the debate over inclusive and non-inclusive education for children with disabilities has long divided scholars across disciplines). 200. JOINT COMMITTEE ON HUMAN RIGHTS, UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILI- TIES: RESERVATIONS AND INTERPRETATIVE DECLARATION, REPORT, 2008-9, HL 70, HC 397, ¶ 44 (UK). 201. Concluding Observations on the Initial Report of the United Kingdom of Great Britain and Northern Ireland, supra note 179, at ¶ 52. 202. See Andrea Broderick, Emerging Trends in the European Court of Human Rights: The Right to Education for Persons with Disabilities, in De Beco, supra note 200, at 424. 203. See Article 24, THE ALLIANCE FOR INCLUSIVE EDUCATION, https://www.allfie.org.uk/campaigns/article-24; see also Implementation of the United Nations Convention on the Rights of Persons with Disabilities in England and Wales: Shadow Report, DISABILITY RIGHTS UK AND DISABILITY WALES (Jan. 2017), https://www.disabilityrightsuk.org/ sites/default/files/pdf/CRPD%20shadow%20report%20-%20England%20Wales%2026%20January%202017.pdf (recommending that there be a withdrawal of the UK reservation). Article - Bantekas.fm Page 87 Tuesday, March 16, 2021 3:45 PM

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H. Reservations Concerning Political or Administrative Organization

States routinely added reservations or declarations in respect of political or administrative organizations. The EU added a similar declaration upon signature.204 Some carry a clear political undertone, like Azerbaijan’s declaration that Armenia effectively occupies Azeri territory; others may have an impact on the enjoyment of rights afforded under the CRPD.205

Federal or federated States usually expressly declare those parts of their territory, or territory under their control to which a treaty applies.206 Belgium and Canada entered such declarations, as did New Zealand with respect to Tokelau.207 The Canadian declaration stipulates that it interprets Article 33(2) as accommodating the situation of federal States where the implementation of the Convention will occur at more than one level of government and through a variety of mechanisms, including existing ones.208

CRPD Article 4(5) addresses the legislative difficulties of federal States by expressly stating that they cannot escape their implementation obligations under the Convention by reason of their federal structure of governance.209 The experience of federal States with powerful state governments, such as the USA, in passing through international law, even preliminary rulings from the ICJ,210 has made such States more cautious in respect of what is to be expected of them under their distinct constitutional arrangements.211 The ICJ emphasized in the LaGrand case that although the separation of powers and competences between federal and state courts and authorities is a matter of domestic law, the effect of said separation on a country’s international obligations is solely a matter of international law.212 Other federal States, however, have resolved similar tensions far more smoothly. Belgium adopted a compulsory Cooperation Agreement in 2008 between the Federal Government, the Regions and the Communities in order to ensure a common understanding of the concept of reasonable accommodation under

204. See CRPD Reservations, supra note 68, at European Union (“The United Nations Convention on the Rights of Persons with Disabilities shall apply, with regard to the competence of the European Community, to the territories in which the Treaty establishing the European Community is applied and under the conditions laid down in that Treaty, in particular Article 299 thereof. Pursuant to Article 299, this Declaration is not applicable to the territories of the Member States in which the said Treaty does not apply and is without prejudice to such act or positions as may be adopted under the Convention by Member States concerned on behalf and in the interests of those territories. In accordance with Article 44(1) of the Convention, this Declaration indicates the competences transferred to the Community by the Member States under the Treaty establishing the European Community, in the areas covered by the Convention”). 205. Bantekas et al., supra note 1, at 1184. 206. See Brian R. Opeskin, Federal States in the International Legal Order, 43 NETH. INT’L L. REV. 353, 368 (1996). 207. Bantekas et al., supra note 1, at 1185. 208. Id. 209. CRPD, supra note 9, at art. 4(5). 210. LaGrand (Ger. V. U.S.), Judgment, 2001 I.C.J. 466, 466–75 (June 27). 211. See generally Medellín v. Tex., 552 U.S. 491 (2008) (The U.S. Supreme Court declined to give binding effect to the ICJ provisional measures decisions, adopting the view that ICJ decisions under the 1963 Vienna Convention on Consular Relations do not constitute binding federal law). 212. Ger. v. U.S., 2001 I.C.J. at 514. Article - Bantekas.fm Page 88 Tuesday, March 16, 2021 3:45 PM

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the CRPD.213 Unlike the International Covenant on Civil and Political Rights or the European Convention on Human Rights, which apply to all individuals in the territory of member States and subject to their jurisdiction,214 this is not the case with the CRPD. The same result may be achieved through an appropriate construction of the CRPD. The CRPD Committee indicated that it is not unfavorable to reservations concerning administrative organization,215 but only to the degree that it does not lead to undue fragmentation in policy development.216

I. Reservations to the CRPD by International Organizations

The CRPD is unique among human rights treaties because it allows regional integration organizations to become parties in accordance with CRPD Article 44.217 It is firmly established that international organizations possess the express and implied capacity to “‘formally confirm’” (functionally the same as “‘ratification’”) and accede to treaties with States or international organizations.218 Moreover, upon formal confirmation the States parties to the organization are merely third parties to the treaty that the organization joined in the sense that they incur no obligations or liabilities from it.219 However, in the case at hand both the EU and its member States are parties to the CRPD. Also, the treaty to which an organization becomes a party binds the organization as a whole and not the particular organ that formally confirmed it.

213. Protocole entre l’État fédéral, la Communauté flamande, la Communauté française, la Communauté germanophone, la Région wallonne, la Région de Bruxelles-Capitale, la Commission communautaire commune, la Commission communautaire française en faveur des personnes en situation de handicap, UNIA, (Sept. 20, 2007), https:// www.unia.be/files/Documenten/Wetgeving/Protocol.pdf. 214. The European Court of Human Rights (ECtHR) has ruled extensively that states parties’ obligation to uphold and enforce the ECHR extends extraterritorially where they exercise effective control. See Loizidou v. Turkey, 310 Eur. Ct. H.R. 99 (1995); Al-Skeini and Others v. United Kingdom, 53 Eur. Ct. H.R. 18 (2011) (The ECtHR has ruled extensively that states parties’ obligation to uphold and enforce the ECHR extends extraterritorially where they exercise effective control); see also Rasul v. Bush, 542 U.S. 466 (2004) (U.S. Supreme Court case with the same effect). 215. See Comm. on the Rts. of Persons with Disabilities, Concluding Observations on the Initial Rep. of Swed., U.N. Doc. CRPD/C/SWE/CO/1 ¶ 5 (May 12, 2014) (Here, the committee observed that its use of indicators was based on voluntary reporting at the municipal level, even though it had not made a reservation that the use of indicators would be restricted to municipal level alone). 216. Comm. on the Rts. of Persons with Disabilities, Concluding Observations on the Initial Rep. of Austria, U.N. Doc. CRPD/C/AUT/CO/1 ¶ 10 (Sept. 13, 2013). 217. See Jacob Katz Cogan, Article 44: Regional Integration Organization, in Bantekas et al., supra note 1. 218. JAN KLABBERS, AN INTRODUCTION TO INTERNATIONAL INSTITUTIONAL LAW 283 (Cambridge Univ. Press 2005). 219. See CATHERINE BRÖLMANN, THE INSTITUTIONAL VEIL IN PUBLIC INTERNATIONAL LAW: INTERNATIONAL ORGANISATIONS AND THE LAW OF TREATIES 1–15 (Hart 2007). This principle was clearly advocated in the complex Tin Council litigations, which concerned the debts of the International Tin Council, a full international organization with headquarters in London, against private debtors at a time when the organization itself had financially collapsed and was in the process of liquidation. The creditors turned to the International Tin Coun- cil’s member States for the outstanding debts, but ultimately the House of Lords affirmed that the Council possessed a personality that was distinct from that of its members and that consequently the contractual obligations assumed by the Council did not give rise to liability of its constituent member States, which were viewed as non- parties to the transactions of the Tin Council. J.H. Rayner (Mincing Lane) Ltd. v. Dep’t of Trade and Indus. et al. [1990] 2 AC (HL) 419; MacLaine Watson & Co. Ltd. v. Dep’t of Trade and Indus. [1988] 3 WL (HL) 1033; MacLaine Watson & Co. Ltd. v. Int’l Tin Council [1989] 81 ILR (HL) 678. Article - Bantekas.fm Page 89 Tuesday, March 16, 2021 3:45 PM

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A small complication arises in respect of so-called mixed agreements, namely treaties that have been ratified by an international organization in addition to its member States.220 Mixed agreements are common in EU treaty practice and this phenomenon also arises in the circumstances of the CRPD.221 Although all the actors involved are individually bound by the treaty they have signed, it is debatable whether the organisation and its member States may decide to re-allocate functions and responsibilities in accordance with the constituent agreement or other rules of the organisation.222

“An issue that was pointed out by the CRPD Committee in its review of the EU’s report is the requirement that besides consent by the EU Parliament, EU accession also requires una- nimity in the Council.”223 The Committee expressed its concern about the EU’s non-ratification of the Optional Protocol to the CRPD and called on it to take remedial action.224 The new EU Action Plan on Human Rights and Democracy 2015-2019, which was adopted by the Council in July 2015, envisages EU accession to the Protocol.225

“Neither article 44 nor article 46 restricts the capacity of international organizations to make reservations.226 In fact, the EU, as the only regional organization that is a party to the CRPD, has lodged the largest reservation to date.227 Its purpose is to clarify the list of competences bestowed upon it in matters pertinent to the CRPD so as to remove any doubt about the competences enjoyed by its member States in their individual capacities.”228 The relevant part of this reservation states as follows:

In some matters the European Community has exclusive competence and in other matters competence is shared between the European Community and the Member States. The Member States remain competent for all matters in respect of which no competence has been transferred to the European Com- munity.229 At present: 1. The Community has exclusive competence as regards the compatibility of state aid with the common market and the common custom tariff.230 To the extent that provisions of Community law are affected by the provision of the Convention, the European Community has an exclusive compe-

220. Bantekas et al., supra note 1, at 1160. 221. Id. 222. Id. 223. Id. 224. Id. 225. Id. 226. Id. at 1185. 227. Id. 228. Id. 229. PIETER JAN KUIJPER ET AL., THE LAW OF EU EXTERNAL RELATIONS: CASES, MATERIALS, AND COMMENTARY ON THE EU AS AN INTERNATIONAL LEGAL ACTOR 136 (2015). 230. Id. Article - Bantekas.fm Page 90 Tuesday, March 16, 2021 3:45 PM

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tence to accept such obligations with respect to its own public administration.231 In this regard, the Community declares that it has power to deal with regulating the recruitment, conditions of service, remuneration, training etc. of non-elected officials under the Staff Regulations and the implementing rules to those Regulations (Council Regulation (EEC, Eura- tom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regula- tions of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ L 56, 4.3.1968, p. 1)).232 2. The Community shares competence with Member States as regards action to combat discrimination on the ground of disability, free movement of goods, persons, services and capital agriculture, transport by rail, road, sea and air transport, taxation, internal market, equal pay for male and female workers, Trans-European network policy and statistics.233 3. The European Community has exclusive competence to enter into this Convention in respect of those matters only to the extent that provisions of the Convention or legal instruments adopted in implementation thereof affect common rules previously established by the European Community.234 When Community rules exist but are not affected, in particular in cases of Community provisions establishing only minimum standards, the Member States have competence, without prejudice to the competence of the Euro- pean Community to act in this field. Otherwise competence rests with the Member States.235 A list of relevant acts adopted by the European Commu- nity appears in the Appendix hereto.236 The extent of the European Com- munity’s competence ensuing from these acts must be assessed by reference to the precise provisions of each measure, and in particular, the extent to which these provisions establish common rules.237 4. The following EC policies may also be relevant to the UN Convention: Member States and the Community shall work towards developing a coordi- nated strategy for employment.238 The Community shall contribute to the development of quality of education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action.239 The Community shall implement a vocational training policy which shall support and supplement the action of the Member States.240 In

231. Id. 232. Id. 233. Id. 234. Id. 235. Id. 236. Id. 237. Id. 238. Id. 239. Id. 240. Id. Article - Bantekas.fm Page 91 Tuesday, March 16, 2021 3:45 PM

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order to promote its overall harmonious development, the Community shall develop and pursue its actions leading to the strengthening of its economic and social cohesion.241 The Community conducts a development cooperation policy and economic, financial and technical cooperation with third countries without prejudice to the respective competences of the Member States.242

“In practice, the EU typically issues a declaration which determines whether the particular obligations referred to in the treaty are to be conferred upon it by virtue of the EU treaties, or whether they remain with the States themselves.243 In the particular circumstances of the CRPD, the EU Council issued a decision that contains such a declaration.244 [T]he obligations of EU member States in their individual capacity and those of the EU remain intact from the point of view of international law.”245 One of the key objectives underlying the accession of regional integration organizations was to allow them to assume some of the policy objectives of the CRPD and in time inculcate them to their member States. Some may have faced political, financial, and legal impediments in regards to the requirements set out in the CRPD. As a result, the EU’s declaration is aligned with the object and purpose of the CRPD.

IV. Withdrawal of Reservations Under the CRPD

VCLT Article 23(4) posits the general rule that reservations and objections to reservations may be withdrawn so long as it is in writing.246 The implicit depository of reservations is the UN Secretary-General, which is in accordance with CRPD Article 41 and any withdrawals must be communicated to him.247 Unless otherwise stated, the effect of the withdrawal is immediate from the moment it is received. The CRPD is silent on this issue, so the general rule applies, subject to any subsequent modification to the internal procedures of the UN.

241. Id. 242. Id. at 136–137. 243. Bantekas et al., supra note 1, at 1160. 244. Id. 245. Id.at 1160–61. It should be noted that under general international law, particularly as reflected in Article 61 of the ILC Articles on the Responsibility of International Organizations. International Law Commission, Draft articles on the responsibility of international organizations, 2011 Y.B. Int’l L. Comm’n, art. 61. This outcome has been confirmed by several international courts and tribunals. See Fed’n of Employed Pensioners of Greece, ¶ 66– 81; Pensioners’ Union of the Agric. Bank of Greece, ¶ 48; Cap. Bank AD, no. 49429/99. 246. This is consistent with ILC Guideline 2.5.1. See Int’l Law Comm’n, supra note 143, at 198–200. 247. See the discussion in the travaux section where a distinct paragraph was originally inserted in what is now Article 46, explaining the UN Secretary-General’s role in this respect. Ad Hoc Committee, supra note 47. Article - Bantekas.fm Page 92 Tuesday, March 16, 2021 3:45 PM

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In the practice of the CRPD, several reservations were withdrawn following the objections by other States parties. The case of El Salvador is instructive.248 This State initially made a sweeping reservation subjugating the CRPD to its domestic laws, like that of Iran.249 Several States, including Germany, objected and submitted a detailed objection to the UN Secretary- General on 28 January 2010. It read in part:250

The Federal Republic of Germany is of the opinion that reservations which consist in a general reference to a system of norms (like the constitution or the legal order of the reserving State) without specifying the contents thereof leave it uncertain to which extent that State accepts to be bound by the obligations under the treaty. Moreover, those norms may be subject to changes. The reservation made by the Republic of El Salvador is therefore not sufficiently precise to make it possible to determine the restrictions that are introduced into the agreement.251

These sustained objections persuaded the government of El Salvador that this was poor practice and it withdrew a large part of its reservation on 18 March 2015.252 The statement of reservation read as follows:

The Government of the Republic of El Salvador signs the present Conven- tion . . . and the Optional Protocol thereto . . . to the extent that its provisions do not prejudice or violate the provisions of any of the precepts, principles and norms enshrined in the Constitution of the Republic of El Salvador, particularly in its enumeration of principles.253

Withdrawals were also made by the UK, Mexico, and Thailand.254 With few exceptions, the CRPD Committee, in its concluding observations to States that have made reservations, urged them to withdraw their reservations. Several countries, such as Australia,255 have withdrawn reservations following engagement with the CRPD Committee, whether because of a concluding observation or a general comment or a combination of both.

248. Bantekas et al., supra note 1, at 1186. 249. Id. 250. CRPD Reservations, supra note 68, at n. 7. 251. Id. 252. Id. at n.8. 253. Id. 254. The Thai withdrawal of its interpretative declaration to Art 18 through legislative action was praised by the Committee. See Comm. on the Rts. of Persons with Disabilities, Concluding Observations on the Initial rep. of Thai., U.N. Doc. CRPD/C/THA/CO/1 ¶ 4 (May 12, 2016). 255. See Austl. Law Reform Comm’n, supra note 36. Article - Bantekas.fm Page 93 Tuesday, March 16, 2021 3:45 PM

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A declaration may be withdrawn at any time by written notification to the depository.256 From the moment the notification is made, it does not restrict the legal effects of the reserved provision for the state in question. For a reservation to come into effect at the domestic level, legislative action is required. Moreover, the withdrawal of a reservation restores the legal relationship between the reserving and any objecting States, although in the context of the CRPD, no objecting State precluded its entry into force against other reserving States.

Conclusion

Reservations nowadays are rather predictable in the human rights realm. The reservations under the CRPD are not surprising, but what should be highlighted is the fact that unlike past practice, States did not attach reservations to most provisions in a human rights treaty. Argu- ably, this is because participation in the drafting and negotiation of such treaties is extensive and occurs over prolonged periods, by which time State participants often become highly sym- pathetic to the causes of the treaty in question and such sentiments are then translated into signing, ratification, and domestication. These sentiments are further supported by the engagement of NGOs and CSOs during the deliberating phases.257 Given that the CRPD requires significant policy shifts (e.g., inclusive education rather than exclusionary) and resources, the absence of reservations concerning such issues is laudable and it comes down to the universal engagement of all actors under a single roof on disability in a holistic manner. Prior to the deliberations of the CRPD, disability law and policy were at a different level, where the medical model prevailed as a matter of policy in many States. Policy shifts occurred during the lengthy process of treaty-making and resulted in the elimination of some reasons that would otherwise give rise to reservations.

It is no truism that the CRPD is a living instrument, with NGOs, persons with disabilities, academia, national human rights organizations, and other actors battling for the implementation of the rights set out in the Convention. At the same time, the engagement of the CRPD Committee with reservations through its reporting procedure provides a non-confrontational and constructive mechanism for clarifying misconceptions. Several member States to the CRPD have already withdrawn their reservations, which demonstrates that these are not static and can be softened through constructive dialogue and engagement.

256. See Oliver Dörr & Kirsten Schmalenbach, Article 22: Withdrawal of reservations and of objections to reservations, at 321–25, in VIENNA CONVENTION ON THE LAW OF TREATIES 321 (Oliver Dörr & Kirsten Schmalenbach eds., 2012) (positing that: “In principle, there is broad consensus that both reservations and objections are unilateral acts, which, in consequence, may be revoked without requiring the consent of any other party to the treaty”). 257. See Stephen Meyers, NGO-Ization and Human Rights Law: The CRPD’s Civil Society Mandate, 5 LAWS 21, 25 (2016); Michael Ashley Stein & Janet E. Lord, Monitoring the Convention on the Rights of Persons with Disabili- ties: Innovations, Lost Opportunities and Future Potential, 23 HUM. RTS. Q. 689, 692 (2010). Article - Bantekas.fm Page 94 Tuesday, March 16, 2021 3:45 PM RD - Heavey.fm Page 95 Tuesday, March 16, 2021 3:40 PM

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Nahl v. Jaoude 968 F.3d 173 (2d Cir. 2020)

Faced with the question of whether terrorism financing violates a universal, specific, and obligatory norm of international law, the Second Circuit reversed the United States District Court for the Southern District of New York’s decision to grant Ghazi Abu Nahl and Nest Investment Holding Lebanon SAL’s motion to amend their complaint because amendment was futile: even if the prohibition against terrorism financing is specific, obligatory, and universal, the harm suffered by the plaintiffs fell outside the scope of that norm and, thus, plaintiffs had no cause of action under the Alien Tort Statute.

I. Holding

In Nahl v. Jaoude, the Second Circuit was asked to determine “whether the prohibition against financing terrorism has reached such a status in international law” such that it is actionable under the Alien Tort Statute (“ATS”), conferring a cause of action on the plaintiffs.1 The Second Circuit side-stepped the question. First, the Second Circuit assumed, without deciding, that the prohibition on terrorism financing is a “universal, specific, and obligatory norm of international law” that could conceivably support a cause of action under the ATS but held that the harm suffered by Ghazi Abu Nahl (“Abu Nahl”) and Nest Investment Holding Lebanon SAL (“Nest Investment,” together the “Plaintiffs”) was not within the scope of that norm.2 Sec- ond, it found that the ATS does not confer jurisdiction for alleged violations of corporate law principles under which Plaintiffs brought their claim.3 As such, the Second Circuit found Plaintiffs’ did not have such a cause of action under the ATS and their motion to amend their complaint was futile. The Court reversed the United States District Court for the Southern District of New York’s decision to grant Plaintiffs’ motion to amend their complaint.4

II. Facts and Procedure

In February 2011, the United States Treasury Department designated the Lebanese Cana- dian Bank (“LCB”) “a financial institution of primary money laundering concern.”5 The Trea- sury Department found that Hezbollah, a Lebanese militant organization which carried out numerous terror attacks on civilians, had “derived financial support from the criminal activities” of drug-trafficking and money-laundering networks operating through LCB, and that LCB management was “complicit” in the laundering.6

1. Nahl v. Jaoude, 968 F.3d 173, 176 (2d Cir. 2020). 2. Id. at 184. 3. Id. 4. Id. 5. Id. at 177. 6. Id. at 178. RD - Heavey.fm Page 96 Tuesday, March 16, 2021 3:40 PM

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The money-laundering scheme worked as follows. Hezbollah operatives sent hundreds of millions of dollars from LCB accounts to used car purchasers in the United States.7 These car purchasers used the funds to buy cars which were then shipped to various locations in West Africa for sale.8 Hezbollah networks then purchased the cars using money from narcotics sales in Europe and Africa.9 The payments from these sales were then transported to Lebanon for deposit into LCB accounts, often with a fee paid to Hezbollah for security during transport.10 The LCB Management established systems within LCB to ensure these transactions would not be detected, such as exempting these accounts from the requirement that cash deposits in excess of $10,000 disclose the source of the funds and ignoring “requirements that would have prohibited LCB from conducting fund transfers on behalf of Hezbollah.”11

In response to the Treasury Department designation, LCB’s board of directors sold LCB’s assets and liabilities to another Lebanese bank and placed LCB into liquidation proceedings.12 $150 million was deposited into an interbank account in the United States to be held in escrow, which the United States District Attorney for the Southern District of New York seized in December 2011 pursuant to civil forfeiture proceedings against LCB.13

To recover compensation for damages suffered from the financial sanctions against LCB, Plaintiffs—shareholders of LCB—brought a derivative shareholder suit in the Southern District of New York under the ATS and state common law against Abou Jaoude, chairman and general manager of LCB, Mohamad Hamdoun, deputy general manager of LCB, and Ahmad Safa, assistant general manager of LCB (“Defendants”).14 Plaintiff Abu Nahl is a Jordanian business- man and plaintiff Nest Investment is a Lebanese corporation principally owned by Abu Nahl.15 Their first amended complaint raised an ATS claim, alleging that Defendants’ money laundering activities aided and abetted Hezbollah’s violations of international law.16 Defendants filed a motion to dismiss the complaint, which the District Court granted on the grounds that Plain- tiffs could not establish tort liability under the ATS using Hezbollah’s attacks as the primary substantive violations of international law because they were not the victims of the attacks.17

Plaintiffs subsequently filed a second amended complaint under the ATS, this time using the Defendants’ activities laundering money in support of terrorism as the primary substantive violation of international law.18 The District Court granted Plaintiffs’ motion to amend their complaint, concluding that the amended complaint was not futile and established a cause of

7. Id. at 177. 8. Id. 9. Id. 10. Id. 11. Id. 12. Id. at 178. 13. Id. 14. Id. at 177. 15. Id. at 176. 16. Id. at 178. 17. Id. 18. Id. RD - Heavey.fm Page 97 Tuesday, March 16, 2021 3:40 PM

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action because the prohibition against financing terrorism is an actionable norm of international law under the ATS.19 Defendants requested that the District Court’s order be certified for interlocutory appeal.20

III. Discussion

A. The Alien Tort Statute

The ATS is a jurisdictional statute that authorizes foreign nationals to bring suit in federal court for torts committed in violation of international law.21 The Supreme Court’s decision in Sosa v. Alvarez-Machain provides the two-step framework under which a court should decide whether a norm has attained sufficient status in international law such that its violation may provide a cause of action under the ATS.22 In order to be actionable under the ATS, the first step requires that a norm obtain the same “definite content and acceptance among civilized nations [as] the historical paradigms familiar when [the ATS] was enacted.”23 Thus, a court must analyze the norm’s specificity, whether it is accepted and obliged by the world community, and whether States universally abide by the norm out of a sense of mutual, rather than several concern.24

Even if under the first step a norm is determined to be sufficiently specific, obligatory, and universal, it will nevertheless fail to be recognized as having sufficient status in international law so as to provide a cause of action under the ATS if the court finds that prudential concerns counsel against doing so.25 Under this second step, a court may consider prudential concerns— such as the practical consequences of making the cause of action available to litigants in federal courts, or foreign policy concerns regarding the recognition of a new norm.26

B. The Court Need Not Determine Whether the Prohibition Against Financing Terrorism is Sufficiently Specific, Obligatory, and Universal

Both Plaintiffs and Defendants, as well as the District Court, focused their analysis on step one of the Sosa framework.27 Plaintiffs asserted, and the District Court found, that the prohibition against financing terrorism is a norm of international law violation of which is actionable under the ATS.28 The norm is expressed in Article 2.1(b) of the International Convention for the Suppression of the Financing of Terrorism.29 The District Court relied on the fact that a significant majority of nations were parties to the Convention, and that the Convention specifi-

19. Id. at 179. 20. Id. 21. Id. at 176. 22. Id. at 179. 23. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). 24. Nahl, 968 F.3d at 179. 25. Id. at 180. 26. Id. 27. Id. at 181. 28. Id. 29. Id. at 180. RD - Heavey.fm Page 98 Tuesday, March 16, 2021 3:40 PM

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cally defines the prohibited conduct.30 Defendants argued that the fact that a number of states joined the Convention with reservations renders the norm insufficiently universal, and that the fact that “terrorism” is not well defined in the statute renders the norm insufficiently specific.31

However, the Second Circuit determined that it need not decide this issue to decide the case. The Court “thus [took] no position on whether the prohibition against financing terrorism, as expressed in Article 2.1(b) of the Convention, is sufficiently universal, specific, and obligatory to give rise to civil liability that may be obtained under the ATS in some circumstances.”32 Instead, it chose to assume, without deciding, that the prohibition against financing terrorism is sufficiently specific, obligatory, and universal to, in some circumstances, give rise to a cause of action under the ATS.33

C. Plaintiffs’ Amended Complaint is Futile

1. The Harm Suffered by Plaintiffs

The Second Circuit analyzed the purpose of the Convention and the prohibition against financing terrorism it created. The Court stated that the international community had come together for the sole purpose of curtailing the risks of terrorism, and preventing the harms which befall the victims of violent terrorist attacks.34 Thus, the Court reasoned, only harms caused by such violent terrorist attacks may fall within the scope of liability for violations of any norms arising from the Convention.35

Plaintiffs, on the other hand, did not claim to suffer any such harm. Rather, the harm Plaintiffs suffered was caused by mismanagement of LCB, which left its funds vulnerable to financial sanctions.36 This economic and financial harm is not the harm that inspired the development of the norm against financing terrorism.37 Indeed, this harm is not specific to the financing of terrorism at all. It is the same harm Plaintiffs would had suffered had Defendants engaged in any number of other types of corporate mismanagement.38

2. Prudential Concerns

In light of its finding that the harm suffered by Plaintiffs was not the harm that the prohibition against terrorism sought to prevent, the Second Circuit found that prudential concerns militate against recognizing a cause of action.39 The Court emphasized that the ATS is not a

30. Id. at 181. 31. Id. 32. Id. 33. Id. 34. Id. at 182. 35. Id. 36. Id. 37. Id. 38. Id. 39. Id. at 181. RD - Heavey.fm Page 99 Tuesday, March 16, 2021 3:40 PM

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broad jurisdictional grant, and has historically covered only a narrow set of international law violations.40 Thus, extending the reach of a norm to give causes of action to “purely financial” harms other than those which it seeks to prevent (harms inflicted by terrorist acts) would impermissibly stretch the ATS too far.41

D. The Mutual-Several Distinction

The Second Circuit bolstered its holding by reasoning that it is irrelevant whether States abide by the prohibition against financing terrorism out of a sense of mutual concern, because the harm suffered by Plaintiffs is of merely of several concern.42 Matters of mutual concern are defined as those that arise between states “in their dealings with each other,” such as war crimes.43 Matters of several concern are defined as matters which many states are independently and locally concerned, such as murder.44

The Court asserted that while tortious acts such as terrorism and financing terrorism may be matters of mutual concern, such is not the type of tortious act of which Plaintiffs claim to be victim.45 Rather, Plaintiffs are victims of Defendants’ breach of their fiduciary duty, which constitutes a distinct tort from Defendants’ possible breach of international law.46 Far from affecting state dealings, a breach of fiduciary duty constitutes a violation of domestic law—a corporate violation—and is of merely local concern.47

IV. Conclusion

The Second Circuit held that under these circumstances Plaintiffs’ effort to amend their complaint was futile because the amended complaint raised the same concerns that caused the District Court to dismiss their first complaint.48 Plaintiffs were not been harmed by the primary international law violations committed by either Hezbollah or Defendants, but rather, the secondary consequences stemming from corporate mismanagement.49 Plaintiffs had no cause of action under the ATS.

Danielle M. Heavey

40. Id. 41. Id. 42. Id. at 183. 43. Id. at 180. 44. Id. 45. Id. at 183. 46. Id. 47. Id. 48. Id. at 184. 49. Id. RD - Heavey.fm Page 100 Tuesday, March 16, 2021 3:40 PM RD - Johannsen.fm Page 101 Tuesday, March 16, 2021 3:41 PM

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Petróleos De Venezuela S.A. v. MUFG Union Bank, N.A. 2020 Dist. Lexis 192032 (S.D.N.Y. Oct. 16, 2020)

The United States District Court for the Southern District of New York granted Summary Judgment in favor of MUFG Union Bank, N.A., and GLAS Americas LLC because (1) the Act of State Doctrine did not apply, and (2) New York State was the center of gravity for this transaction and, as such, New York State law did apply.

I. Holding

Recently, in Petróleos De Venezuela S.A. v. MUFG Union Bank, N.A., the United States District Court for the Southern District of New York confronted a “weighty question with a convoluted answer”: could Venezuela’s state oil company escape contractual obligations through the application of foreign law or the Act of State Doctrine?1 Ultimately, the Court granted summary judgment in favor of MUFG Union Bank, N.A. (“MUFG”), and GLAS Americas LLC (“GLAS,” together “Defendants”), denying Petróleos De Venezuela S.A. (“PDVSA”), PDVSA Petróleo, S.A. (“PDSVA Petróleo”), and PDV Holding, Inc.’s (“PDV,” together “Plaintiffs”) cross-motion for summary judgment. In so deciding, the Court held, inter alia, that the Act of State Doctrine did not apply,2 that New York law, not foreign law, applied, and that, as such, the contract entered into by parties (the “2020 Notes”) was valid and enforceable.3 The Court also held that a default occurred under the parties’ indenture agreement,4 the Defendants were permitted to exercise the remedies for default set forth in the parties’ agreements,5 and MUFG, as trustee, was entitled to direct GLAS to sell collateral securing the 2020 Notes.6 The Court found MUFG entitled to judgment in the amount of $1,683,764,500 and PDVSA and PDVSA Petróleo liable for fees, disbursements, and expenses, including attorney’s fees.7

II. Facts and Procedure

PDVSA is an oil and natural gas company and its sole shareholder is the nation of Venezu- ela; PDVSA as an entity forms a part of the Decentralized Public Administration of the Vene- zuelan government.8 The financial backdrop to this case begins with PDVSA issuing an aggregate principal amount of $9.15 billion in notes between April 2007 and January 2011, all

1. Petróleos De Venezuela S.A. v. MUFG Union Bank, N.A., 2020 Dist. Lexis 192032, at **2–3 (S.D.N.Y. Oct. 16, 2020). 2. Id. at *62. 3. Id. at *85. 4. Id. 5. Id. 6. Id. at **85–86. 7. Id. 8. Id. at **8–9. RD - Johannsen.fm Page 102 Tuesday, March 16, 2021 3:41 PM

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scheduled to come due in the year 2017 (the “2017 Notes”).9 Yet, by 2016, crude oil prices had declined, multiple credit rating agencies downgraded PDVSA’s rating, and the 2017 Notes had accrued over $506 million in interest payments due in 2017 and had a remaining principle balance of $7.1 billion.10 A default was likely.11 Thus, in October 2016, PDVSA entered into a bond swap transaction (“the Exchange Offer”) whereby holders of the 2017 Notes would receive in exchange a certain amount of bond notes that would come due later, in the year 2020.12 In the Exchange Offer, the 2020 Notes were secured by 50.1% of the equity of CITGO Holding (“CITGO”), which was pledged as collateral by a subsidiary of PDVSA known as PDVH.13 PDVH acted as pledgor, PDVSA Petróleo as guarantor, GLAS as collateral agent, and MUFG as trustee.14

On May 26, 2016, during the time of the Exchange Offer, the National Assembly passed a resolution (the “May 2016 Resolution).15 The May 2016 Resolution provided that in “contracts of national . . . public interest between the National Executive and . . . companies not domiciled in Venezuela, the Constitution categorically mandates, without exception, the approval of the National Assembly.”16 The May 2016 Resolution also mandated that the validity of a contract of national public interest was conditioned on the approval of the contract by the National Assembly.17 The National Assembly could not “waive[], transfer[], or extend[]” its responsibility and the responsibility could not “be relaxed by conventions, decrees, or other legal acts.”18

On September 27, 2019, the National Assembly passed another resolution (the “Septem- ber 2019 Resolution”) after the Exchange Offer was announced.19 The September 2019 Reso- lution “urged the Public Ministry to open an investigation to determine if the [Exchange Offer] protects the National Property, in accordance with article 187, section 9 of the Constitution.”20 Article 187 of the Constitution empowered the National Assembly to “exercise control functions with the power to obtain information about the financial statements and details of any transition that commits PDVSA’s assets as collateral.”21 As stated above, the Exchange Offer pledged 50.1% of the equity of PDVSA’s subsidiary—CITGO.22

9. Id. at *11. 10. Id. at *12. 11. Id. at *14. 12. Id. 13. Id. at *15. 14. Id. 15. Id. at *13. 16. Id. 17. Id. 18. Id. 19. Id. at *17. 20. Id. 21. Id. 22. Id. at *15. RD - Johannsen.fm Page 103 Tuesday, March 16, 2021 3:41 PM

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On October 15, 2019, the National Assembly passed a third resolution (the “October 2019 Resolution”).23 The October 2019 Resolution concluded “that the 2020 Bond indenture is a national public contract that should have been authorized by the National Assembly.”24 Because the 2020 Notes were not authorized by the National Assembly, the October 2019 Res- olution held that the contract “violated Article 150 of the Bolivarian Republic of Venezuela.”25

On October 27, 2019, PDVSA failed to make the required payments on the 2020 Notes.26 Subsequently, on October 29, 2019, Plaintiffs filed a complaint seeking declaratory judgment that the 2020 Notes and accompanying documents are invalid, illegal, null and void ab initio and unenforceable.27 Specifically, Plaintiffs argued that PDSVA and PDSVA Petróleo are state owned companies, and thus, extensions of the state; as such, they argued, any contract between the companies and a foreign entity are required, as a matter of the Venezuelan Consti- tution, to be approved by the Venezuelan National Assembly.28 Plaintiffs alleged that because the 2020 Notes and the documents governing them were never approved by the Venezuelan National Assembly, they were in violation of the Venezuelan Constitution.29 Defendants coun- tered that New York law, not Venezuelan law, applied, that the 2020 Notes were valid and enforceable, and that Plaintiffs were in default.30 Defendants maintained that there was no assertion of invalidity or illegality of the 2020 Notes under New York law.31 Following the filing of the Complaint, Defendants filed their Answer and Counterclaims, seeking declaratory judgment and brought claims for breach of contract, breach of warranty, unjust enrichment, and quantum meruit.32

III. Discussion

A. Summary Judgment Under Fed. R. Civ. P. 56

Both parties in the instant case sought summary judgment. Under Federal Rule of Civil Procedure 56(a), a “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law.”33 “A genuine dispute exists where the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”34 “A fact is material if it might affect the outcome of the

23. Id. at *20. 24. Id. at *21. 25. Id. 26. Id. at *4. 27. Id. at *21. 28. Id. 29. Id. at *5. 30. Id. 31. Id. 32. Id. 33. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986). 34. Petróleos, 2020 U.S. Dist. LEXIS 192032 *26 (Internal quotations and citations omitted). RD - Johannsen.fm Page 104 Tuesday, March 16, 2021 3:41 PM

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suit under the governing law.”35 “While the moving party bears the initial burden on demonstrating the absence of a genuine issue of material fact, the party opposing summary judgment must do more than simply show some metaphysical doubt as the material fact.”36

B. The Act of State Doctrine Does Not Apply

1. Applicable Law

The Supreme Court in Banco Nacional de Cuba v. Sabbatino explained the Act of State Doctrine as follows: “The act of state doctrine in its traditional formulation precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.”37 The Court further stated that the Judi- cial Branch of the United States (“U.S.”) “will not examine the validity of a taking of property within [the foreign government’s] own territory by a foreign government, extant and recognized by this country at the time of the suit, in absence of a treaty or other unambiguous agreement regarding controlling legal principles.”38 The Supreme Court also explained in W.S. Kirkpatrick & Co., Inc. v. Envtl. Tectonics Corp. Int’l that in order for the Act of State Doctrine to apply, the parties must show that “the relief sought or the defense imposed would . . . require[] a court in the United States to declare invalid the official act a foreign sovereign performed within its own territory.”39 “If the official act did not take place within the territory of the foreign sovereign, the Court may still recognize the act if it is consistent with the law and policy of the United States.”40

2. The National Assembly’s Resolutions Constitute Official Acts of Foreign Sov- ereign

Three Venezuelan political resolutions, the May 2016 Resolution, September 2016 Reso- lution, and the October 2019 Resolution (the “Resolutions”), were at issue in Petróleos.41 Plain- tiffs argued that these Resolutions by the National Assembly of Venezuela were acts of the state that collectively invalidated the 2020 Notes and Governing Documents in Venezuela.42

First, the Court found them each to be official acts by Venezuela.43 Specifically, the Court noted that “[t]o qualify as official, an act must be imbued with some level of formality, such as authorization by the foreign sovereign through an official statute, decree, order or resolu-

35. Id. at *27 (Internal quotation and citation omitted). 36. Id. (Internal quotation and citation omitted). 37. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964). 38. Id. at 428. 39. W.S. Kirkpatrick & Co., Inc. v. Envtl. Tectonics Corp. Int’l, 493 U.S. 400, 405 (1990). 40. Petróleos, 2020 U.S. Dist. LEXIS 192032 *31 (internal citations omitted). 41. Id. at *28. 42. Id. 43. Id. at *31. RD - Johannsen.fm Page 105 Tuesday, March 16, 2021 3:41 PM

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tion.”44 The Court found sufficient evidence to consider these resolutions official. Additionally, the Court noted that the U.S. recognized the National Assembly as the only legitimate branch of Venezuela’s government.45

Next, the Court rejected Defendant’s argument that the National Assembly’s Resolutions have no force of law and thus should not be considered official acts, finding them to be “formal Resolutions, passed by and attributable to the sovereign.”46 Additionally, the Court rejected Defendant’s secondary argument that the retroactive nature of the Act of State Doctrine only applies to revolutionary governments, invalidating the National Assembly’s Resolutions.47 The Court found that although all previous decisions to apply the Act of State Doctrine retroac- tively had been to revolutionary governments, there is no such restriction.48

Finally, the Court rejected Defendant’s position that, because at the time of the 2016 Res- olution, the U.S. recognized the entire Venezuelan government as legitimate (and not just the National Assembly), the 2016 Resolution could not constitute the act of a sovereign.49 The Court stated that because the retroactive principle applied in this scenario, the recognition of the National Assembly as the sole legitimate branch of the Venezuelan government applied to the 2016 Resolution.50

3. The Taking at Issue Did Not Take Place Within Venezuelan Territory

To apply the Act of State Doctrine, the Court had to determine if the resolutions described above resulted in a “taking” by Venezuela and whether that taking occurred in Vene- zuelan territory.51 If not, then the recognition of the taking had to be consistent with the law and policy of the U.S.52 To determine the situs of the taking in controversy, the Court turned to the Second Circuit’s analysis in Allied Bank Int’l v. Banco Credito Agricola de Cartago.53 The court’s analysis in Allied Bank asked whether the taking there occurred completely under the foreign government’s dominion while considering such factors as place of payment, location of parties, and location of contracting debt.54 When considering the Act of State Doctrine, “a debt is not located within a foreign state unless that state has the power to enforce or collect it.”55 Similarly, “the Act of State Doctrine looks to actual dominion over property rather than the mere execution of official documents.56

44. Kashef v. BNP Paribas S.A., 925 F.3d 53, 60 (2d Cir. 2019). 45. Petróleos, 2020 U.S. Dist. LEXIS 192032 at **32–33. 46. Id. at *33. 47. Id. at *34. 48. Id. 49. Id. at *35. 50. Id. at *36. 51. Id. at **36–37. 52. Id. 53. Id. at *39. 54. Id. at **39–40; see Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 521 (2d Cir. 1985). 55. Id. at *56 (internal citations and quotations omitted). 56. Id. at *57. RD - Johannsen.fm Page 106 Tuesday, March 16, 2021 3:41 PM

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The Court found that Venezuela was not in the physical position to invalidate the 2020 Notes.57 First, the debt obligation is to be paid in U.S. dollars. Second, and most importantly, the collateral—“a physical stock certificate” held by GLAS—was “in a vault” in New York City.58 In considering the additional factors provided in Allied Bank, the Court noted that the collateral, location of contracting, and all but two of the parties are outside of Venezuelan territory.59 As such, the taking must occur outside of Venezuelan territory.

The Court considered that the National Assembly’s Resolutions and subsequent statements on the validity of the 2020 Notes invalidated the contract’s existence. However, it found a lack of support in the language of the Resolutions.60 Under this theory, the National Assem- bly invalidated the contract by refusing to endorse said contract between the two entities. Fur- thermore, the Court noted that, while they should be given weight, the Court is not bound by statements of a foreign government.61 As a result, the Court found no basis for the mandatory application of the Act of State Doctrine.62

4. Permissive Application of the Act of State Doctrine Is Not Warranted Here

The Act of State Doctrine may still apply in situations that the court finds consistent with the law and policy of the U.S. as a matter of comity.63 In failing to give an official opinion on the instant matter, the U.S. government left the decision to extend comity to the National Assembly’s Resolutions to the court.64 In its decision, the Court took into account the interests the U.S. has in stabilizing financial markets, protecting expectations of creditors, and maintaining New York’s status as a global commercial center.65 The Court’s main concern was encouraging foreign governments to repudiate legitimate debts in bad faith.66 Given these concerns, the Court determined not to permissively apply the Act of State Doctrine.67

C. New York Law Governs This Action

1. New York Choice of Law Governs the Parties’ Agreement

The Court noted that the relevant agreements contained a choice of law provision select- ing New York law.68 Thus, the Court recognized that the Plaintiffs had to “overcome the dis- positive choice of law hurdle” by pointing “to a New York choice of law rule that requires this

57. Petróleos, 2020 U.S. Dist. LEXIS 192032 at **15, 40–41. 58. Id. at *41. 59. Id. 60. Id. at *44. 61. See id. at *52. 62. Id. at *57. 63. Id. at **57–58. 64. Id. at *61. 65. Id. 66. Id. at **61–62. 67. Id. 68. Id. at **15–16. RD - Johannsen.fm Page 107 Tuesday, March 16, 2021 3:41 PM

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Court to apply Venezuelan law to the question of whether the 2020 Notes and Governing Documents are valid and enforceable.”69 Plaintiffs attempted “to overcome this hurdle by pointing to two different rules”—Section 8-110 of the U.C.C. and a line of district court cases that Plaintiffs argued required the application of foreign law.70

2. § 8-110 of the U.C.C. Does Not Apply Here

Section 8-110 of the U.C.C. mandates that “the local law of issuer’s jurisdiction . . . governs . . . the validity of a security.”71 A literal reading of Article 8 would imply that Venezuelan law would govern in the instant case, however, the Court found the application of Article 8 to be far more narrow in scope.72 Looking to the official note to Article 8, the Court stated that the primary focus of Article 8 is to govern issues involving securities intermediaries, not the process of entering into contracts or regulation thereof.73 Article 8 is not meant to be a substitute for general contract law; if it were, it would invalidate any choice of law clause in contracts.74

Turning to the New York adoption of Article 8, legislative documentation showed a shared interpretation, with a reiteration on governing how interests in securities are evidenced and transferred, not the conduct and duties of contracting parties.75 The validity of a security under U.C.C. § 8-110 is best interpreted in accordance with U.C.C. § 8-202, which explains Article 8 as addressing constitutional and statutory provisions. These provisions specifically address requirements for the issuance of securities, not provisions that generally govern contracts.76 In the instant case, Venezuelan law required approval of “a broad category of contracts, and has nothing to do with the issuance of securities.”77

3. Case Law Does Not Require the Application of Foreign Law

Plaintiffs pointed to Themis Capital, LLC v. Democratic Republic of Congo and related cases to argue that the application of foreign law is required in this case.78 In Themis Capital, the Court stated that “[w]here a commercial transaction is within a foreign state that state is found to have the most significant relationship to the transaction, New York law must look to the law of the foreign state to determine that actual authority of an agent of the state’s government.”79

69. Id. at *63. 70. Id. at *72. 71. N.Y. U.C.C. § 8-110(a)(1). 72. Petróleos, 2020 U.S. Dist. LEXIS 192032 at *64. 73. Id. at **64–65. 74. Id. at **65–66. 75. Id. at **66 (internal citations and quotations omitted). 76. Id. at **67–68 (internal citations and quotations omitted). 77. Id. at *71. 78. Id. at *72. 79. Themis Capital, LLC v. Democratic Republic of Congo, 881 F. Supp. 2d 508 (S.D.N.Y. 2012) (internal quotations and citations omitted). RD - Johannsen.fm Page 108 Tuesday, March 16, 2021 3:41 PM

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However, the Court did not find Themis Capital and relying cases to be controlling.80 Themis Capital arose in the context of the Foreign Sovereign Immunities Act (the “FSIA”), which was not at issue in this matter.81 Second, the foreign party in Themis Capital was either the state itself or an entity that had been found to be an instrumentality for FSIA purposes or the state. Here, the parties did not argue that PDSVA is a foreign sovereign or an instrumentality of one.82 Finally, the referenced cases addressed the issue of whether a government agent has actual authority in regards to a particular transaction—again, a matter that was not at issue here.83 As such, Themis Capital and similarly relying cases had no bearing on the court’s analysis.84

4. A “Grouping of Contacts” Analysis Results in the Application of New York Law

The Court also applied New York’s “grouping of contacts analysis to determine which State has the most substantial relationship to the transaction and the parties.”85 “This analysis requires the court consider (i) the places of contracting, negotiation, and performance; (ii) the location of the subject matter of the contract; and (iii) the domicile or places of business of the contracting parties.”86 Additionally, any analysis regarding a financial transaction taking place in New York should emphasize the state’s role as an international financial center.87 The Court turned to the record to determine that New York served as the “center of gravity” for this transaction with the only connection to Venezuela being Plaintiff’s principle place of business. As such, New York law controlled.88 In finding New York law applicable, the Court found it unnecessary to interpret Venezuelan law and its impact on the 2020 Notes.89

IV. Conclusion

Finding the agreement was breached, the Court granted Defendants’ motion for summary judgment.90 Together, the inapplicability of the Act of State Doctrine and the applicability of New York law were fatal to Plaintiff’s claims.91

Sean Johannsen

80. Petróleos, 2020 U.S. Dist. LEXIS 192032 at *77. 81. Id. at **73–75. 82. Id. 83. Id. 84. Id. at *77. 85. Id. at *79 (internal citations and quotations omitted). 86. Id. 87. Id. (internal citations and quotations omitted). 88. Id. at **79–81. 89. Id. at *83. 90. Id. at **83–84. 91. See id. at *85. RD - Callahan.fm Page 109 Tuesday, March 16, 2021 3:41 PM

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Kraiem v. JonesTrading Institutional Servs. LLC

2020 U.S. Dist. LEXIS 181115 (S.D.N.Y. Sep. 30, 2020)

In a case involving the employment discrimination claims of a French citizen residing in London, the United States District Court for the Southern District of New York granted the Defendant’s motion to dismiss in part because (1) portions of the Plaintiff’s claims relating to conduct outside of New York were time-barred under Title VII’s statute of limitations; (2) the Plaintiff did not qualify as a non- citizen working in the United States under Title VII; (3) the incidents that occurred outside of New York were not covered by New York State Human Rights Law and New York City Human Rights Law; and (4) certain claims were precluded on the grounds of forum non-conveniens. However, certain of the plaintiff’s discrimination and retaliation claims based on events occurring in or related to events in New York were allowed to proceed.

I. Holding

Recently, in Kraiem v. JonesTrading Institutional Servs. LLC, the United States District Court for the Southern District of New York (S.D.N.Y.) evaluated the employment discrimination claims of a French citizen residing in London, who alleged certain acts of discrimination occurring in New York and elsewhere in the U.S.1 The Court granted the Defendants’ Motion to Dismiss in part. First, the Court determined that Nefissa Kraiem’s (“Plaintiff”) Title VII claims for discrete acts of discrimination and retaliation based on events in Dallas, Texas and Greenwich, Connecticut were time-barred under Title VII’s statute of limitations.2 However, her hostile work environment claim, which related to a New York City business trip, were able to proceed.3 Second, the Court concluded that under Title VII, the Plaintiff did not qualify as a non-citizen employed in the United States (“U.S.”).4 Third, the Court dismissed the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”) claims based on conduct outside of New York. However, the incidents that occurred while the Plaintiff was in New York City could proceed.5 The Court also concluded that JonesTrading Institutional Service LLC (“JTIS”) and JonesTrading International Limited (“JTIL”), two distinct entities, constituted a single employer for the purposes of Plaintiff’s Title VII claims.6 Subsequently, the Court held that Kraiem did not establish a presumption of retal-

1. Kraiem v. JonesTrading Institutional Servs. LLC, 2020 U.S. Dist. LEXIS 181115, at *23 (S.D.N.Y. Sep. 30, 2020). 2. Id. 3. Id. at *46. 4. Id. at **24–26. 5. Id. at **29–30. 6. Id. at **30–32. RD - Callahan.fm Page 110 Tuesday, March 16, 2021 3:41 PM

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iation and therefore, her claims of retaliation as to certain individual defendants were dismissed.7 Lastly, the Court dismissed certain claims on the grounds of forum non-conveniens due to the forum selection clause in Plaintiff’s employment contract.8

II. Facts and Procedures

Plaintiff Nefissa Kraiem (“Kraiem”), a French citizen and resident of London, brought claims in the U.S. District Court for the Southern District of New York for sex- and gender- based discrimination and retaliation in violation of Title VII, NYSHRL, and NYCHRL against JTIL, JTIS, and several individual employees of these organizations.9 Kraiem alleged that the discrimination and retaliation began in July 2016, when she was hired by JTIL, and continued until her alleged constructive termination on January 15, 2018.10 Plaintiff’s complaint primarily involved claims under U.S. law and related to conduct that occurred in the U.S., although she also sought relief for her constructive termination, which occurred in London.11

Kraiem began working for JTIL in 2016. Specifically, on May 25, 2016, Kraiem signed a contract of employment to be a trader with JTIL.12 JTIL is a foreign broker-dealer incorpo- rated in England and Wales.13 JTIS, of which JTIL is a wholly-owned subsidiary, is a Delaware company with its principal place of business in Westlake Village, California, while also doing business in New York, New York. The individual defendants—Schlomo Cohen, Gary Cun- ningham, David Mazzullo, Alan Hill, and Steven Chmieleski—work for these companies JTIL and JTIL (together “Jones”).14 Kraiem alleged that after she began working for JTIL, she was subjected to a hostile work environment where she was repeatedly sexually harassed by male employees.15

The alleged harassment and retaliation that occurred in the U.S. took place in Dallas, Texas, in April 2017, Greenwich, Connecticut in May 2017, and New York, New York from July 10 to July 16, 2017.16 For the first of these, on or about April 27, 2017, Kraiem attended a Jones event in Dallas, Texas, where Mazzullo made inappropriate advances on her, including hugging her, grabbing her waist, making comments on her appearance, and following her to her hotel room.17 In early May 2017, Kraiem approached Cunningham about Mazzullo’s conduct in Dallas where he “brushed Plaintiff’s complaint off as business as usual” and referring to the behavior as “Classic Dave.”18 Approximately two weeks after the Dallas trip, in Jones’

7. Id. at **32–33. 8. Id. at *34. 9. Id.at *1. 10. Id. at *2. 11. Id. 12. Id. at *3. 13. Id. 14. Id. 15. Id. at *5. 16. Id. 17. Id. at **6–7. 18. Id. at *8. RD - Callahan.fm Page 111 Tuesday, March 16, 2021 3:41 PM

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Greenwich, Connecticut office, a Jones employee commented on Plaintiff’s appearance to Mazzullo.19 In response, Mazzullo said she was “not his type.”20 It was not clear whether the Plaintiff was present for this exchange.21

Furthermore, Plaintiff alleges that she was ostracized and gossiped about during a July 2017 trip to New York. Specifically, on July 11, 2017, Cunningham invited Kraiem to a client dinner where he introduced her to clients as “the head of ‘fashion’ and ‘entertainment’ and ‘occasionally’ a trader.”22 Kraiem alleged that Cunningham asked if her dress “was lingerie or a real dress.”23 Kraiem approached Cunningham later that night about the incident to which he apologized and sent her a message the following day apologizing for everything that was said to her.24 Additionally, on July 14, 2017, while still in New York, Kraiem agreed to have drinks with Cohen and a client.25 The client approached Kraiem saying “come with me to the toilet and I’ll go down on you.”26 Plaintiff reported the incident to Cohen who apologized, but the following day, he joked about it at the office.27 In late August, Plaintiff told Cunningham that she was considering filing a complaint with Human Resources.28 Plaintiff alleged that in response Defendants planned to constructively discharge her by moving her to Gerrards Cross, located two hours away from London.29 “On December 22, 2017, Jones sent Plaintiff a proposed contract stating that the firm intended to move her to Gerrards Cross by January 31, 2018, and condition[ed] her employment on her agreement to move to that location.”30

Plaintiff sought relief in U.S. and U.K courts for these violations.31 In the U.K., Kraiem sought relief under U.K law for violations that occurred in the U.K against JTIL and Cunning- ham.32 On May 8, 2018, Plaintiff filed a Charge of Discrimination against Jones with the United States Equal Employment Opportunity Commission (“EEOC”) and the New York State Division of Human Rights (“NYSDHR”).33 On February 15, 2019, the NYSDHR granted Plaintiff a Dismissal for Administrative Convenience.34 On February 28, 2019, the EEOC issued Plaintiff a Notice of Right to sue, which she received on March 4, 2019.35

19. Id. 20. Id. 21. Id. 22. Id. 23. Id. 24. Id. at *9. 25. Id. 26. Id. 27. Id. 28. Id. at *10. 29. Id. 30. Id. 31. Id. 32. Id. at *11. 33. Id. 34. Id. 35. Id. RD - Callahan.fm Page 112 Tuesday, March 16, 2021 3:41 PM

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On May 31, 2019, Kraiem filed suit in the S.D.N.Y. against JTIL, JTIS, and several individual employees of these organizations, seeking relief for sex- and gender-based discrimination and retaliation in violation of Title VII, NYSHRL, and NYCHRL.36 On January 22, 2020, the Defendants moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).37 Defendants argued in favor of “dismissal (1) based on forum non-conveniens; (2) because Plaintiff failed to plead that JTIL and JTIS are a ‘single employer’; (3) because Plaintiff failed to plead impact in New York State or New York City; (4) because plaintiff failed to plead a cause of action for retaliation; and (5) for lack of subject matter jurisdiction.”38 Plaintiff opposed the motion, arguing that: (1) the court did have subject matter jurisdiction; (2) the forum selection clause did not cover Kraiem’s statutory discrimination claims, did not apply to defendants besides JTIL, and contravened public policies of this forum; (3) the First Amended Complaint (“FAC”) adequately plead JTIL and JTIS are a single- employer; (4) the FAC adequately plead state and local law claims; and (5) the FAC adequately plead retaliation under Title VII.39

III. Standard of Review

“[A] case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.”40 Factual allegations contained in the Complaint must be accepted as true by the court,41 but the plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.42

When faced with a Rule 12(b)(6) motion, the court must “assume all well-pleaded factual allegations’ to be true, and ‘determine whether they plausibly give rise to an entitlement to relief.’”43 “Allegations that are ‘no more than conclusions are not entitled to the assumption of truth,’ and ‘naked assertions, devoid of further factual enhancement’ or ‘the defendant-unlaw- fully-harmed-me accusations’ are not sufficient to show that a plaintiff is entitled to relief.”44

36. Id. 37. Id. at *12. 38. Id. 39. Id. 40. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). 41. See Atlanta Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir. 1998); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). 42. See Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). 43. Selevan v. New York Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009). 44. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). RD - Callahan.fm Page 113 Tuesday, March 16, 2021 3:41 PM

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IV. Discussion

A. Timeliness of Allegations Under Title VII

The Court considered which of Plaintiff’s Title VII claims were time-barred. “Title VII requires that individuals aggrieved by acts of discrimination file a charge with the EEOC within 180 days or, in states like New York that have local administrative mechanisms for pur- suing discrimination claims, 300 days after the alleged unlawful employment practice occurred.”45 “Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct.”46 Under the continuing violation doctrine, “if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.”47

The Court held that Kraiem’s Title VII claims for discrete acts of discrimination and relation in Dallas, Texas and Greenwich, Connecticut were to be dismissed as time-barred because they exceed the 300-day rule.48 However, Plaintiff’s hostile work environment claim that were “sufficiently connected to the instances in New York” proceeded under the continuing violation doctrine.49

B. Viability of Title VII Claims for London Incidents

Title VII’s application abroad is limited to U.S. citizens.50 “However, under certain circumstances, non-US citizens that work both abroad and stateside have been deemed to be employed in the U.S.”51 Courts have applied either the “center of gravity test” or “primary workstation test” to determine whether a non-citizen is employed in the United States.52 Under the “center of gravity test,” a court considers factors “including whether any employment relationship had, in fact, been created at the time of the alleged discrimination, and if so where that employment relationship was created and the terms of employment negotiated; the intent of the parties concerning the place of employment; the actual or contemplated duties, benefits, and reporting relationships for the position at issue; the particular locations in which the plaintiff performed those employment duties and receive those benefits; the relative duration of the employee’s assignments in various locations; the parties’ domiciles; and the place where the allegedly discriminatory conduct took place.”53

45. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78–79 (2d Cir. 2015). 46. AMTRAK v. Morgan, 536 U.S. 101, 115 (2002). 47. Chin v. Port Auth. Of New York & New Jersey, 685 F.3d 135, 156 (2d Cir. 2012). 48. Kraiem, 2020 U.S. Dist. LEXIS 181115, at *23. 49. Id. at **22–23. 50. 42 U.S.C. §2000e-1(a). 51. Kraiem, 2020 U.S. Dist. LEXIS 181115, at *23. 52. Id. at **24–25. 53. Torrico v. IBM, 213 F. Supp. 2d 390, 403–04 (S.D.N.Y. 2002). RD - Callahan.fm Page 114 Tuesday, March 16, 2021 3:41 PM

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Ultimately, in Kraiem the Court concluded that under either test, Kraiem did not plead that she was employed in the U.S.54 The “facts indicate[d] that London was Kraiem’s ‘primary workstation’ and ‘center of gravity.’”55

C. Impact in New York City

“[T]he NYSHRL and NYCHRL [] afford protections unavailable under federal law to plaintiffs who can ‘plead and prove that the alleged discriminatory conduct had an impact’ within the state and city respectively.”56 “For this Court to have subject matter jurisdiction over her claim under NYSHRL and NYCHRL the alleged discrimination and retaliation must have had an impact on her in New York State and City respectively.”57 Plaintiff pleaded “impact in New York by alleging (1) instances of harassment and retaliation during her July 2017, New York City trip, (2) harassing conduct by people located in New York City while she was in Lon- don or elsewhere, and (3) negative effects on her future career prospects in New York.”58 The Court found that neither the second nor the third category bore any weight for Kraiem.59 The Court held that the incidents that occurred while Kraiem was in New York City could proceed, but dismissed the NYSHRL and NYCHRL claims where based on conduct outside of New York.60

D. JTIS as Kraiem’s “Employer”

Under Title VII, the single-employer doctrine provides that “separate corporations under common ownership and management . . . can be deemed to constitute a single enterprise.”61 Four factors are used to determine whether two distinct entities constitute a single employer: “(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.”62 The Court concluded that Kraiem adequately alleged that JTIL and JTIS are a single employer.63 In so holding, the Court noted that JTIS and JTIL can be considered a single employer because “(1) the fact that JTIS and JTIL employees work closely together on a daily basis, supported the same clients and accounts, and reported to the same supervisors; (2) that the companies had the same HR con- sultant, and JTIS staff were involved in personnel decisions at JTIL; (3) both JTIS and JTIL are owned by the same holding company.”64

54. Kraiem, 2020 U.S. Dist. LEXIS 181115, at *25. 55. Id. at *26. 56. McLeod v. Jewish Guild For The Blind, 864 F.3d 154, 157 (2d Cir. 2017). 57. Kraiem, 2020 U.S. Dist. LEXIS 181115, at *28. 58. Id. 59. Id. 60. Id. at **29–30. 61. Arcuelo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 197 (2d Cir. 2005). 62. Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240–41 (2d Cir. 1995). 63. Kraiem, 2020 U.S. Dist. LEXIS 181115, at *32. 64. Id. at 31. RD - Callahan.fm Page 115 Tuesday, March 16, 2021 3:41 PM

Fall 2020] Kraiem v. JonesTrading Institutional Servs. LLC 115

E. Stating a Claim for Retaliation

Requiring a presumption of retaliation at the initial stage of a Title VII litigation, a plaintiff must present evidence that demonstrates “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.”65 The Court determined, Kraiem’s allegations lacked any obvious causal connection to the complaints she made to Cunningham after the Dallas trip.66 Thus, the Court dismissed Kraiem’s claims because she failed to allege that they personally engaged in retaliatory conduct in New York.67

F. Forum Non-Conveniens

Lastly, the Court considered the impact of the forum selection clause in Kraiem’s employment contract with JTIL.68 That clause “reads: ‘The Contract shall be governed by the law of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.’”69 The Court considered three questions to determine the impact of this clause: “(1) whether the clause covers the discrimination and retaliation claims Kraiem brings; (2) if so, which defendants may enforce the clause, and; (3) whether enforcing the clause would violate an important public policy of this forum.”70 To interpret these factors the Court turned to the Fiona Trust case where the United Kingdom court determined that courts should rely on the presumption that jurisdiction clauses encompass, all disputes involving the relationship into which the contracting parties entered “unless the language makes it clear that certain questions were intended to be excluded.”71 The Court concluded that “the forum selection clause, as interpreted via the Fiona Trust cannons . . . direct broad interpretation of jurisdictional clauses” which Plaintiff did not refute.72 Secondly, the Court held that JTIL and its employees may enforce the forum selection clause because under U.K. law there is vicarious liability of employers for employees.73 Thirdly, the Court determined that there are no strong policy reasons under U.S. law that would justify the jurisdiction clause not being enforced.74 Thus, the Court determined “(1) that Kraiem’s harassment and retaliation claims fall within the forum selection clause; (2) that JTIL and its employees may enforce the clause; and (3) that no important public policy is harmed by enforcing the clause.”75 In conclusion, the Court dismissed the remaining claims against JTIL and Cunningham on forum non-conveniens grounds.76

65. Littlejohn v. City of N.Y., 795 F.3d 297, 315–16 (2d Cir. 2015). 66. Kraiem, 2020 U.S. Dist. LEXIS 181115, at *33. 67. Id. 68. Id. 69. Id. at **33–34. 70. Id. 71. Fili Shipping Co. Ltd. v. Premium Nafta Prods. Ltd., [2007] UKHL 40 [7]. 72. Kraiem, 2020 U.S. Dist. LEXIS 181115, at *43. 73. Id. at **43–44. 74. Id. at *44. 75. Id. at *34. 76. Id. RD - Callahan.fm Page 116 Tuesday, March 16, 2021 3:41 PM

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V. Conclusion

The Court granted the Defendant’s motion to dismiss in part because portions of the Plaintiff’s claims were time-barred; under Title VII Plaintiff did not qualify as a non-citizen working in the U.S.; NYSHRL and NYCHRL did not cover the incidents that occurred outside of New York; and forum non-conveniens precluded certain other claims.

Matthew T. Callahan