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20481. TACIT AMENDMENTS

Author:
Oona A. Hathaway, Haley Nix, Saurrabh Sanghvi, and Sara Solow
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
As a general rule, the President is “‘without authority, except by and with the advice and consent of the Senate, to modify a treaty provision.’”2 Thus, in amending a treaty, parties effectively sign and ratify a new treaty, to which the standard treaty processes apply. However, numerous treaties have established procedures for modifications to the regime that do not rise to the level of formal amendments to the treaty. This report focuses on such “unratified treaty amendments”—which include what are called “tacit amendments.” Unratified amendments are amendments to treaties that are made without formal Senate ratification.3 They have proven a useful tool in creating robust treaty regimes in a changing world. Just as the use of executive agreements in general has expanded rapidly in the past century,4 treaty regimes increasingly have adopted amendment processes that do not require a full ratification process. And just as executive agreements have raised questions about Senate prerogatives, so too have unratified amendments. There are two primary ways that the U.S. government modifies underlying treaties through an unratified amendment5 —first, through the use of executive agreements; and, second, through the use of tacit amendments. Part I describes how each process works. It argues that both pass constitutional muster so long as the Senate has provided its clear advice and consent to the use of such processes (although not necessarily to the substance of the modifications) in the first instance. Part II outlines and evaluates the various ways in which the Senate has responded to attempts to modify treaties by executive agreement or by tacit amendment in the past. It concludes that the Senate’s requirements of prior notice and its focus on technical provisions, while not always easy to achieve in practice, are sensible ways to maintain Senate prerogatives. Part III concludes.
Topic:
Foreign Policy, Treaties and Agreements, Domestic politics, and Federalism
Political Geography:
North America and United States of America

20482. Lessons from the Past for Foreign Sovereign Immunity After Samantar v. Yousuf

Author:
Saurrabh Sanghvi
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In Samantar v. Yousuf,2 the Supreme Court held that an individual sued personally for acts taken as a foreign official did not enjoy any immunity under the Foreign Sovereign Immunities Act of 1976 (FSIA), a statute governing when courts should provide foreign states with sovereign immunity.3 After Samantar, immunity in any individual official suit will likely be determined through reference to the pre-FSIA federal common law. This report outlines the pre-FSIA practices4 of the U.S. Department of State (“State Department”) and the courts to provide insight into how individual official suits may be handled in the wake of Samantar.5 If courts follow historical practice, they will likely rely heavily on State Department “suggestions of immunity” in determining whether immunity will be granted to individuals for actions taken as foreign officials. Moreover, when the Department is silent, the courts will likely interpret State Department policy to determine whether immunity is appropriate.
Topic:
Foreign Policy, Law, Legal Theory, and Immunity
Political Geography:
North America and United States of America

20483. THE ROLE OF THE COMMITTEE TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

Author:
Chelsea Purvis
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This report analyzes the role of the Committee to the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). It provides an overview of the Committee’s mandate under CEDAW, finding that its mandate is similar to those of other human rights treaty bodies to which the United States reports. Like other human rights treaty bodies, the CEDAW Committee engages with States parties through a process of dialogue. It cannot consider complaints from individuals against states that have not ratified CEDAW’s Optional Protocol. The report then reviews the principle criticisms of the Committee by opponents of U.S. ratification of the Convention, exploring both the Committee’s most controversial recommendations and its contested legal authority. It discusses the contexts in which the Committee has made its most controversial recommendations and notes that each recommendation has had limited practical effect. The report explains that the CEDAW Committee does not have the legal authority to compel a State party to modify its law or values. If the United States were to ratify the Convention, the Committee’s findings and recommendations would have no direct binding legal authority under either domestic or international law. Finally, the report considers the effect that American participation might have on the Committee. U.S. ratification of CEDAW would allow the United States to contribute to the Committee’s process of dialogue. The United States has found engagement with other human rights treaty bodies productive, even though it does not consider recommendations made by human rights committees to be legally binding. U.S. ratification would also permit the United States to participate in the selection of Committee members, making it more likely that Committee recommendations would even more fully reflect U.S. standards.
Topic:
Gender Issues, Law, Women, and Discrimination
Political Geography:
United States of America and North America

20484. Arms Trafficking: The International and Domestic Legal Framework

Author:
Oona A. Hathaway, Elizabeth Nielsen, Chelsea Purvis, Saurrabh Sanghvi, and Sara Solow
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The conventional arms trade,2 both legal and illegal, is vast in scope. As of 2001, there were an estimated half billion documented small arms in the world, more than one for every twelve people.3 International arms sales are a booming business, and the United States is the world’s largest exporter. In 2008, worldwide arms transfer agreements reached a value of $55.2 billion, of which 76.4% involved developing nations.4 The United States accounted for $37.8 billion, or 68.4%, of these worldwide arms transfer agreements,5 and U.S. activity falls into five categories: foreign military sales agreements between foreign governments and the Department of Defense, direct commercial sales to foreign buyers negotiated by U.S. companies, leases of military equipment by U.S. entities, excess defense materials, and emergency decreases of weapons stockpiles.6 An extensive legal regime has emerged at the international and domestic levels to regulate conventional arms trafficking. This report aims to provide an overview of that framework. It surveys existing international arms trafficking agreements and provides an analytic framework for distinguishing between them. It also surveys the domestic legal framework regarding arms trafficking. Together, these overviews provide a starting point for identifying the shortcomings of existing law, identifying gaps in the legal framework as it currently operates, and considering options to begin to address these shortcomings. This report begins in Part I by briefly outlining the scope of the problem of conventional arms trafficking. It then turns in Part II to identifying three fundamental axes on which international arms trafficking agreements differ. First, each agreement targets one or more points in a conventional arms life cycle: it targets the point of production; the point of domestic ownership and transfer; or the point of interstate transfer. Second, agreements differ in the scope of weapons they cover—they may target different classes of weapons (such as major conventional weapons, small arms and light weapons, and dual-use technologies) and different legal categories of weapons (for example, some cover both legal and illicit weapons, while others only focus on illicit weapons). Third, agreements differ in terms of their enforceability: some are legally binding while others set nonbinding goals. Part III of the report examines the ways in which the United States regulates arms trafficking through its domestic laws and international agreements. It shows that the United States places strong controls on interstate transfers of arms, but it has a more mixed record when it comes to regulating earlier stages of the arms life cycle. While U.S. law places a number of marking and recordkeeping requirements on arms producers and sellers, domestic ownership laws are lax compared to those of other countries. Part IV shows that there are three major gaps in extant arms trafficking agreements. First, the international agreements that are the most enforceable either fail to target arms trafficking at multiple points in the life cycle or fail to cover a broad scope of weapons. Second, arms trafficking agreements do not adequately regulate the illicit resale of arms in the black market after they are produced and sold for the first time legally. This is because there is no binding and enforceable agreement that requires states to track all domestic weapons transfers, from their initial sale to the final sale before their export. Finally, major arms suppliers, such as the United States, are not party to several major arms trafficking agreements. To address these shortcomings, this report offers three options available to U.S. policymakers for strengthening arms trafficking laws. First, the United States could increase multilateral engagement by ratifying the leading regional arms trafficking agreement, Inter-American Convention Against Illicit Manufacturing of and Trafficking in Firearms, Ammunitions, Explosives, and Other Related Materials (CIFTA). Doing so would likely require no changes in U.S. domestic law but would strengthen the U.S. ability to coordinate its arms control efforts with other countries while encouraging other countries to more effectively address arms trafficking. Second, the United States could increase bilateral programmatic assistance to address arms trafficking—at the very least by taking arms trafficking into account in existing assistance programs. Finally, the United States could engage more actively in leading negotiations over a robust and comprehensive arms trade treaty. Such an agreement would ideally aim to bring the international legal standards developed in CIFTA to the global stage. In leading the way toward such a comprehensive treaty, the United States could encourage universal adoption of the high standards the United States already has in place to ensure that arms are not transferred for illegitimate purposes—purposes that may directly affect U.S. security interests.
Topic:
International Trade and Finance, Arms Trade, Trafficking, Legal Theory, and Illegal Trade
Political Geography:
Global Focus

20485. War on Drugs

Author:
Global Commission On Drug Policy
Publication Date:
06-2011
Content Type:
Special Report
Institution:
Global Commission On Drug Policy
Abstract:
The global war on drugs has failed, with devastating consequences for individuals and societies around the world. Fifty years after the initiation of the UN Single Convention on Narcotic Drugs, and 40 years after President Nixon launched the US government's war on drugs, fundamental reforms in national and global drug control policies are urgently needed. In this seminal report, the Global Commission on Drug Policy calls on global leaders to join an open discussion on drug policy reform.
Topic:
War on Drugs, Public Policy, and Drugs
Political Geography:
United States and Global Focus

20486. Lebanon: An Overview Context, Evolving Demographics for Women, Sexual and Reproductive Health, Poverty and Women, Gender and Rights

Author:
Jocelyn DeJong and Sonya Meyerson-Knox
Publication Date:
01-2011
Content Type:
Policy Brief
Institution:
Institute for the Study of International Development, McGill University
Abstract:
Lebanon, a small middle-income country located on the eastern Mediterranean, is typical of many developing nations as it is undergoing demographic and epidemiological transitions with limited resources at hand, and yet unique due to its diverse population and long history of conflict. The conditions of Lebanese women are also fairly unique: A gender analysis Lebanon’s development indicators reveals that Lebanese women experience relatively high levels of health and education, but are lacking a commensurate presence in the public sphere. According to a Lebanese NGO, a “key problem is that gains in health and education have not translated into women’s economic empowerment, advancement in politics, or full equality under the law” (CRTD-A, 2006, p. 8).
Topic:
Development, Gender Issues, Human Rights, Women, Sexual Health, and Reproductive Health
Political Geography:
Middle East and Lebanon

20487. A Case Study from Ghana: Understanding the Links between Sexual and Reproductive Health, Gender Equality and Poverty Reduction

Author:
Akosua K. Darkwah
Publication Date:
01-2011
Content Type:
Policy Brief
Institution:
Institute for the Study of International Development, McGill University
Abstract:
Ghana is an interesting case study for this project for two reasons. First, it has an anomalous reproductive health profile. The country has the lowest Total Fertility Rate (TFR) in West Africa and one of the lowest in the sub-region. As at 2008, the TFR for the country was 4.0, for urban areas it was 3.1 and for the Greater Accra area, the most urbanized part of the country, it was 2.5 (GDHS 2008). This is a quite rapid decline from a TFR of 6.4 children per woman as at 1988. Even more interesting is the fact that the Contraceptive Prevalence Rate (CPR) stood at a low 24% in 2008. Some scholars such as Grey and Blanc (2002) argue that abortion rates help explain the gap between the CPR one should expect given the low TFR and what actually pertains as measured by the GDHS. Abortion in Ghana, however, inspite of a liberal law, accounts for between 13% (Sedgh 2010) and 25% (Baiden 2009) of maternal mortality cases in the country. In other words, in Ghana if the assertions of Grey and Blanc (2002) are valid, a low TFR has been achieved at the peril of women’s lives, quite contrary to what one would expect if reproductive health concerns were addressed systematically in the country. Second, the country exhibits quite some discord between its policies and its practices. Over the years, Ghana has been influenced and positively impacted by the global regimes in first Family Planning and later Reproductive Health. It joined the UN system of Population Censuses in 1960 and was an African Pioneer in the development of official Population Policy. It has an illustrious son, Fred Sai who is well known in international circles for his work on Reproductive Health. Fred Sai was the president of the International Planned Parenthood Association during the International Conference on Population Development (ICPD) held in Cairo in 1994 at which the conceptual shift from a narrow emphasis on family planning to the much broader notion of Reproductive Health was made. As president of such a key institution, he was instrumental in the processes that led to this effort and worked tirelessly to ensure that the Ghanaian State in its policies and practices reflected the conceptual shifts from Population Control to Reproductive Health. Two years after ICPD, the Ghanaian Reproductive Health Service Policy and Standards were developed and revised in 2003 to incorporate sexual health and gender based violence.
Topic:
Development, Gender Issues, Poverty, and Reproductive Health
Political Geography:
Africa and Ghana

20488. Japan’s National Defense Program Guidelines 2010 and Its Implication to South Korean Security Policies

Author:
Young-June Park
Publication Date:
01-2011
Content Type:
Working Paper
Institution:
East Asia Institute (EAI)
Abstract:
On December 17, 2010, the government of Japan updated its most strategically important document entitled “National Defense Program Guidelines (NDPG), FY 2011-” following confirmation from both the Security Council and the Cabinet. The new defense plan released along with the “Mid-Term Defense Program for FY2011-2015” addresses the objectives and the methods of the Japanese Self Defense Forces. Moreover, the plan also outlines Japan’s future military strategies as well as the fundamental tenets of its defense policy. Whereas in the United States, the White House, Pentagon, and Joint Chiefs all release new guidelines each time a new administration comes to power, Japan does not have such a regular format for its defense plan. This makes the National Defense Program Guidelines a comprehensive strategic document that covers every aspect of Japan’s military defense. First introduced in 1976, the Guidelines has only been updated twice in 1995 and 2004. The NDPG in 1976 reflected Japan’s security and military strategy during the Cold War, while the 1995 and the 2004 guidelines reflected strategies for the post-Cold War era and the beginning of 21st century after 9/11, respectively. What then do these updated guidelines in 2010 signify? And in what context should this defense plan be seen? Firstly, the structural changes that have occurred in the security environment of East Asia should be taken into consideration. North Korea conducted nuclear tests twice in 2006 and 2009. In 2010, it displayed new levels of provocation by sinking the South Korean naval vessel Cheonan and shelling Yeonpyeong Island. These actions not only threaten the Korean Peninsula but also the entire region. Added to that, China surpassed Japan as the second largest economy after the United States and has become more assertive over maritime disputes with Japan. How all these military and economic changes are projected in the document deserves close analysis. Secondly, unlike previous NDPGs that were written during the long years under the Liberal Democratic Party (LDP), the 2010 Guidelines are part of the first strategic document that reflects the strategic outlook and security approach of the Democratic Party of Japan (DPJ). Since the DPJ assumed power, it has long tried to differentiate itself from LDP in its decision making procedures and actual policies. Such tendencies are naturally reflected in its security policies as well. How do these guidelines differ from the NDPGs issued under the LDP? In short, the National Defense Program Guidelines 2010 is the best resource with which to understand how Japan perceives the changed security environment, and what strategic concepts and military capability it is preparing for in face of future security challenges.
Topic:
Security, Defense Policy, Military Strategy, and Missile Defense
Political Geography:
Japan and Asia

20489. Ambivalence toward North Korea: South Korean Public Perceptions Following the Attack on Yeonpyeong Island

Author:
Nae-Young Lee and Han-Wool Jeong
Publication Date:
01-2011
Content Type:
Working Paper
Institution:
East Asia Institute (EAI)
Abstract:
In 2010 there were two major North Korean provocations against South Korea as tensions mounted on the Korean Peninsula and in the broader region. Following both the sinking of the ROK Navy corvette Cheonan and the artillery attack on Yeonpyeong Island, there has been a process within South Korean society to clarify where the responsibility lies and to find an appropriate direction for coping with a more aggressive North Korea. The way that politicians and the media have analyzed the situation has mostly been based upon a dichotomy of ‘war vs. peace.’ Public opinion on the other hand has displayed ambivalent attitudes toward war or peace, preferring to allow for both concepts to exist rather than choosing one over the other. The South Korean public does not support either appeasement policies that hold back from retaliation or hard line policies that could lead to a full-scale war. In the short term, the public shows mixed views toward improving inter-Korean relations. For the long term, however, the majority of the public favors that the government redirects its tough stance against North Korea toward more dialogue and cooperation. However, it should be noted that there is a growing opinion for maintaining hard-line policies against North Korea even for the long term. The EAI and Hankook Research, as part of its monthly Public Opinion Barometer, surveyed eight hundred people from around South Korea on November 27, 2010, four days after the attack on Yeonpyeong Island. The results of the November Public Opinion Barometer survey formed the basis of the EAI Issue Briefing on Public Opinion entitled “The Impact of North Korea’s Artillery Strike on Public Opinion in South Korea” which summed up the characteristics of public opinion after the incident . This Issue Briefing will use the results from that survey to provide analysis of the shifting public perceptions on policies toward North Korea.
Topic:
Defense Policy, Military Strategy, Public Opinion, Conflict, and Survey
Political Geography:
Asia, South Korea, and North Korea

20490. Stuck in the Middle? U.S.-China Relations and the Korean Peninsula

Author:
EAI Security Net
Publication Date:
02-2011
Content Type:
Working Paper
Institution:
East Asia Institute (EAI)
Abstract:
Not since the visit of Deng Xiapoing in 1979 has a Chinese state visit attracted so much attention as President Hu Jintao’s visit to the United States on January 19, 2011. After a rocky year in U.S.-China relations following President Barack Obama’s visit to Beijing in November 2009, attention naturally focused on the future direction of the relationship between the two countries. Further attention imbued with curiosity also centered on how a relatively declining United States and a rapidly rising China would shape the world order in the long-run. Also following North Korea’s provocations in 2010, the world carefully looked for any strong emphasis on the issue of the Korean Peninsula as a regional challenge. There have been two different interpretations in regards to the results of the U.S.-China summit: an optimistic outlook that the two countries will become cooperative partners and move forward as underscored in the Joint Statement, and pessimistic views that the two powers will merely continue the repeated pattern of conflict and check that they have been doing since November 2009. A similar mix of opinions prevails in regards to the Korean Peninsula. Some expect immediate improvement in inter-Korean relations and the resumption of the Six-Party Talks, while others criticize the U.S.-China summit for barely papering over the cracks. However, neither hasty optimism nor gloomy pessimism is appropriate at this time. There is a need to utilize a comprehensive response strategy, which goes beyond narrow political understandings, based on a precise analysis of the results of the summit.
Topic:
Diplomacy, International Cooperation, Regional Cooperation, Hegemony, and Summit
Political Geography:
China, Asia, South Korea, North Korea, North America, and United States of America