Uganda’s Tax on Social Media: Financial Burdens as a Means of Suppressing Dissent

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Michael Altman-Lupu is a member of the Columbia Law School Class of 2020.

In response to political upheaval, African states have restricted access to social media platforms. In what appears to be the start of a regional trend, several East African nations have imposed taxes and fees on social media. Uganda has levied the world’s first tax on social media users, imposing in 2018 a daily tax on the use of fiftyeight websites and applications, including Facebook, Twitter, Instagram, WhatsApp, and Skype. To access these platforms, one must pay a daily fee of 200 Ugandan Shillings ($.054 USD).

This Note will use the Ugandan social media tax as a case study through which to examine the legality, under international law, of financial burdens designed to suppress political dissent. While the analysis will focus solely on Uganda’s law, much of it will apply beyond Uganda’s borders to countries pursuing similar legislation.

Part I provides important background with respect to the Ugandan scheme. Part II explores freedom of expression over the Internet under international law and determines what types of restrictions on expression are legally permissible. Part III analyzes whether a tax that affects speech would be considered a restriction of expression. Finally, Part IV examines the social media tax through the lens of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and analyzes the consequences of a determination that the social media tax violates international norms, both within Uganda and more broadly across East Africa.

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Lawyers for #UsToo: An Analysis of the Challenges Posed by the Contingent Fee System in Tort Cases for Sexual Assault

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Christine Rua is a member of the Columbia Law School Class of 2020.

According to the National Sexual Violence Resource Center, one in five women will be raped at some point in their lives, and one in three women will experience some form of sexual violence. Despite the widespread prevalence of sexual assault, it is the country’s most under-reported crime. These illustrative statistics are alarming and suggest that current criminal law approaches to the sexual assault epidemic are inadequate, both in meeting the needs of survivors and in holding perpetrators accountable. These inadequacies have the potential to become even more widely experienced in light of movements like #MeToo, given that survivors may now be more willing to come forward, seek support, and engage with the legal system. Given these realities, scholars have begun to explore alternatives to criminal prosecutions for sexual assault, and many have identified tort law as a potential alternative path. However, tort law is generally underused, despite its potential to provide sexual assault survivors with a variety of benefits. This Note aims to provide a structural explanation for why more sexual assault claims are not successfully pursued in tort. Specifically, this Note explores how the contingent fee system and tort reform may affect the frequency and type of sexual assault cases plaintiff-side lawyers are willing to accept and bring to trial. This Note draws on both quantitative data and informal attorney interviews to demonstrate how tort reform statutes influence attorney decisionmaking in sexual assault cases, and how attorney screening decisions in the aggregate may foreclose legal recourse for survivors in a way that is normatively undesirable. This Note then proposes changes to existing systems of criminal restitution in order to address the compensatory, retributive, and deterrence gaps created by the current legal scheme.

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Making Rights a Reality: Access to Health Care for Afro-Colombian Survivors of Conflict-Related Sexual Violence

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Deborah Zalesne is a Professor of Law at the City University of New York School of Law.

In 2008, Colombia enacted Law 1257, which states that “women’s rights are human rights,” and that women’s rights include “the right to a dignified life,” including the right to “physical health” and “sexual and reproductive health.” In 2016, the Colombian government signed a peace accord with the Revolutionary Armed Forces of Colombia (“FARC”), which included groundbreaking racial and gender justice provisions. In the years since, the government has failed to fully implement the accord’s protections against gender violence and has failed to rectify disparities in the availability, accessibility, and quality of women’s health services throughout Colombia. Indigenous and Afro-Colombian women in rural and remote areas have felt these failures more than anyone else. The intersection of race, class, and gender creates unique issues for AfroColombian victims of sexual violence, which can result in a complete lack of health care options. This Article spotlights the many structural barriers that Afro-Colombian women face in realizing their right to health and health care in Colombia. The Article draws heavily from conversations and interviews with Afro-descendant Colombian members of Proceso de Comunidades Negras (“PCN”) and community leaders and activists from the rural Pacific AfroColombian river communities of San Juan and Naya River. Part I of this Article gives a brief overview of the history of race discrimination and violence against women in Colombia and of the specific situation of Afro-Colombian women. Part II then gives an overview of the health care system in Colombia and the national health law, which guarantees health care as a right to all citizens, including free and compulsory basic health services. Part III details the many obstacles that cut off populations of Afro-Colombians from access to appropriate medical care altogether, despite the national guarantee of the right to health care. Finally, in the Conclusion, the Article proposes some basic responses to the deficits highlighted in Part III. To bring the provision of health services in line with the law’s mandate, policy makers must consider how the intersection of race, class, and gender uniquely affects Afro-Colombian victims of sexual violence. To obtain health equity, policy makers must address structural and institutional issues that cause the disparities.

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Unlocking the Power and Possibility of Local Enforcement of Human and Civil Rights: Lessons Learned from the NYC Commission on Human Rights

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Gurjot Kaur is Senior Policy Counsel at the NYC Commission on Human Rights.

Dana Sussman is Deputy Commissioner, Policy and Intergovernmental Affairs at the NYC Commission on Human Rights

If you ask most people in the United States where to go to file a complaint of discrimination or receive assistance from the government in addressing discrimination, chances are that they will not likely be able to tell you. For those who do have some familiarity, they may point to the United States Equal Employment Opportunity Commission (“EEOC”), the federal agency that handles workplace discrimination claims under Title VII of the Civil Rights Act of 1964. A smaller number may be familiar with their state human rights agencies or equivalent. Even fewer will have knowledge about local or city counterparts to the extent that these agencies even exist in their respective jurisdictions. While the federal government has certainly played a powerful and dominant role in furthering civil rights in the United States, the last several years have seen a rolling back of civil rights protections, through federal administrative rulemaking, Supreme Court jurisprudence, and executive orders and other mechanisms. Under the administration of President Donald J. Trump, the federal government has also flagrantly espoused rhetoric and policies that have led to an increase in bias incidents and violence across the country, inspired by a resurgent white supremacist movement.

When human rights and civil rights protections are deprioritized, underenforced, and undermined through federal action, local governments can be powerful incubators of new and innovative ideas for how government can protect its residents and also serve as a bulwark against the actions of the federal government This article proposes that local and state human rights agencies can and should prominently step forward to push the limits of their mandates, including: adopting a holistic and highly visible approach to combat discrimination in their jurisdictions; building relationships with advocates; steering the national conversation on civil rights; and continuing to create powerful legal precedents to protect society’s most vulnerable.

This article will focus on the strategies employed by the New York City Commission on Human Rights (the “Commission”) from 2015 to 2020 under the leadership of Commissioner and Chair Carmelyn P. Malalis, who helped revive a moribund agency and turn it into a national leader. The Commission’s progress during this timeframe has demonstrated that even with limited resources, a local human rights commission can play a prominent role in the civil rights movement.

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An Oasis in the Human Rights Litigation Desert? A Roadmap to Using California Code of Civil Procedure Section 354.8 as a Means of Breaking Out of the Alien Tort Statute Straitjacket

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Fernando C. Saldivar, S.J. is a Jesuit Scholastic and a candidate for the M.A. in Social Philosophy at Loyola University Chicago. He received an A.B. from Georgetown University in 1999 and a J.D. from Southwestern University School of Law in 2005. He was in private litigation practice in California from 2005 until he entered the Society of Jesus in 2016.

As a result of the Supreme Court’s increasingly restrictive reading of the Alien Tort Statute (“ATS”), victims of human rights abuses committed abroad have found the federal courthouse door sealed shut. Especially in the wake of Jesner v. Arab Bank, where the Court held that foreign corporations cannot be defendants under the ATS, such entities may feel they can act abroad with impunity, without fear of being held accountable in a U.S. court. However, the situation may not be anywhere near as dire as it may seem. Sitting quietly in California’s Code of Civil Procedure (“CCP”) since 2016, Section 354.8 opens the doors to the largest state court system in the country, offering a powerful, potentially game changing, tool to international human rights litigants who would otherwise be denied access to federal court under the ATS.

CCP section 354.8 expands the definition of certain torts under state law: assault, battery, wrongful death, and conversion. California law now substantively provides remedies to victims who can demonstrate that the underlying tortious conduct constitutes torture, genocide, a war crime, an attempted extrajudicial killing, or a crime against humanity. The legislative history indicates a clear intent to provide a judicial forum to those who may otherwise be denied access to the courts. This law is unprecedented, unique, and largely unknown to the international human rights community. This Article changes that by providing a roadmap for using California Code of Civil Procedure Section 354.8 as a means of breaking out of the federal ATS litigation straitjacket to pursue civil tort actions for human rights abuses committed abroad in a U.S. court.

This Article provides a primer on ATS caselaw as it has developed over the last thirty years, painting the picture of how the “ATS litigation straitjacket” came to be and thereby highlighting the novelty of California’s human rights regime. It then examines exactly what is authorized in CCP section 354.8, specifically the areas that have been the subject of protracted ATS litigation. Analyzing issues related to personal jurisdiction and court access, this Article provides a roadmap for navigating access to California’s state court system. The importance of California as a forum for international human rights litigation is discussed by showing how the state already has global influence, and its laws, particularly its human rights laws, already receive international recognition.

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The Law Against Family Separation

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Carrie F. Cordero is the Robert M. Gates Senior Fellow, Center for a New American Security and Adjunct Professor of Law, Georgetown University Law Center.

Heidi Li Feldman is Professor of Law and (by courtesy) Associate Professor of Philosophy, Georgetown University Law Center.

Chimène I. Keitner is the Alfred & Hanna Fromm Professor of International & Comparative Law, UC Hastings Law

This Article offers the first comprehensive assessment of how domestic and international law limits the U.S. government’s ability to separate foreign children from the adults accompanying them when they seek to enter the United States. As early as March 6, 2017, thenSecretary of Homeland Security John Kelly told CNN’s Wolf Blitzer that he was considering separating families at the border as a deterrent to illegal immigration as part of a “zero tolerance” policy whereby the Trump administration intended the strictest enforcement of immigration law against those migrants coming to the U.S. southern border. Kelly did not say upon what legal basis the administration could lawfully separate families at the border as a component of its immigration policies. Whatever the merits of maximal prosecution of adults unlawfully crossing the border, adopting this policy did not convert family separation into a lawful byproduct of the arrest of an adult. To the contrary, domestic and international law militates strongly against the lawfulness of family separation as a tool for immigration deterrence, yielding liability for the state and for individuals who implement family separation in this setting. Both litigation and Congressional action can and should play a role in addressing the Trump administration’s use of family separation and ensuring that it is halted now and not used again, by Trump or any other U.S. President.

In the Article, we start with a factual chronology of the Trump Administration’s family separation policy. We then argue for our positions regarding the illegality of the policy and its implementation. In Part II, we describe the federal government’s recognized authority to enforce immigration laws and ensure border security, on the one hand, and the domestic constitutional framework for protecting the basic rights of migrant parents and children, on the other. In Part III we examine the reach of domestic law, including the common law of torts, for dealing with wrongful family separation in the immigration setting. Part IV reviews international law that protects against this harm. In the Conclusion we propose a range of steps that the U.S. Congress could take to repair at least some of the harm caused by the family separation policy, and to ensure that no future administration contemplates similar action.

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When “Material” Loses Meaning: Matter of A-C-M- and the Material Support Bar to Asylum

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Tyler Anne Lee is a member of the Columbia Law School Class of 2020.

The United States asylum system offers the possibility of a safe haven to many individuals who have fled persecution in their home countries. Yet, often the complex system of immigration statutes and its multiple grounds for inadmissibility block the path of deserving asylum seekers. Under one of these grounds for exclusion, the “material support bar,” victims of terrorism are barred from asylum because they have provided “material support” to the very groups whose persecution they have escaped.

In 2018, the Board of Immigration Appeals issued a precedential decision in Matter of A-C-M-, holding that a woman forced to cook and clean for Salvadoran guerrillas under threat of death was ineligible for asylum in the United States because her actions constituted material support to a terrorist organization. This decision represents the culmination of a series of cases since the statute’s enactment that have broadened the definition of “material support.” This Note argues that the current interpretation of the material support bar is both untenable from a statutory interpretation perspective and unjust in light of asylum law’s purposes, and that the present system of discretionary waivers is inadequate to mitigate this problem.

In order to ensure that deserving victims of persecution remain eligible for asylum in the United States, this Note recommends that Congress and the courts take action. It proposes and evaluates several potential solutions: first, a legislative amendment to the relevant statute to add an explicit duress waiver and to clarify the meaning of “material support,” and second, judicial review of the Matter of A‑C‑M‑ decision.

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Failure on the Front Line: How the Americans With Disabilities Act should be Interpreted to Better Protect Persons in Mental Health Crisis from Fatal Police Shootings

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Alexis Campbell is a member of the Columbia Law School Class of 2020.

This Note examines Title II of the Americans with Disabilities Act’s (“Title II”) effectiveness at protecting persons experiencing mental illness from being fatally shot by police officers. Since its adoption in the 1990s, federal courts have interpreted the Americans with Disabilities Act to provide varying levels of protection to persons experiencing mental illness. While some courts have interpreted Title II to require that police officers provide reasonable accommodations for an individual’s mental illness when effectuating an arrest, others have held that any such accommodation would be unreasonable. Although not required by any court, police departments throughout the United States have adopted programs such as the Crisis Intervention Team (“CIT”) training model to train police officers on how to best respond during encounters with persons experiencing a mental illness or mental health crisis. Using data derived from the Washington Post’s Fatal Force Database and a record of existing CIT training programs, this Note analyzes the effectiveness of Title II and the CIT model at protecting persons in mental health crisis from fatal police shootings. In particular, this Note explores whether the application of Title II to arrests alone, the widespread implementation of CIT programs alone, or the application of Title II to arrests in jurisdictions that implement CIT programs best protects persons in mental health crisis from fatal police shootings.

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Urbicide and Property Under Assad: Examining Reconstruction and Neoliberal Authoritarianism in a “Postwar” Syria

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Emma DiNapoli is a member of the Columbia Law School Class of 2020.

This Note places wartime activity in Syria such as real property seizures and mass demolition within the theoretical framework of urbicide. The wanton, widespread destruction and seizure of homes or public spaces in Syria is a distinct, intentional form of violence against the built environment of the country’s cities, one which is intended to forcibly impose an urban politics of separation and homogeneity. The Assad regime’s tactics in Syria and urbicidal conduct more broadly should not be seen as discrete destructive events—or even series of events—occurring during periods of direct hostilities, but ought to be interpreted expansively: as ongoing processes in which postwar reconstruction is not the solution to urban destruction but rather the continuation of such violence. A failure to account for the logic underlying urbicidal wars may result in post-conflict authoritarian practices of economic patronage and the selective recognition of property assets in ways that are themselves urbicidal in purpose and effect. This Note argues that current reconstruction orthodoxy and the international community’s focus on property restitution as a means to facilitate the return of refugees and internally displaced persons (“IDPs”) is misguided; “traditional” models of post-conflict property restitution fail to properly consider the linkages between methods of destruction and possibilities of future conflict, thus permitting urbicidal reconstruction and the persistence of authoritarianism.

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Climate Migration & Self-Determination

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Autumn Skye Bordner is a Research Fellow at the Center for Law, Energy, & Environment at the U.C. Berkeley School of Law.

As the planet continues to warm, climate-induced migration is poised to become a global crisis. For the most vulnerable geographies—most prominently, low-lying island states—climate migration poses an immediate and existential threat. Without substantial adaptation, the lowest-lying island states are predicted to be uninhabitable by mid-century, necessitating wholesale migration and jeopardizing cultural identity, independence, and sovereignty.

Vulnerability to climate change is fundamentally shaped not only by environmental conditions, but by pre-existing social and political realities. Throughout Oceania, colonial legacies have induced climate vulnerability and impede effective adaptation. Colonial histories have left most Pacific Island states without the resources and capacity to pursue the type of intensive adaptation that could enable their survival. Meanwhile, dominant narratives portray the loss of islands to rising seas as a foregone conclusion and climate migration as inevitable, further foreclosing possibilities for adaptation. This accepted loss of whole nations represents a continuing strand of colonial narratives that cast islands and their peoples as peripheral and, therefore, expendable.

Such colonial dynamics are no longer commensurate with modern commitments to equity, justice, and human rights. International law safeguards the ability of all peoples to exist and to maintain sovereignty and self-governance through the fundamental human right of self-determination. In repudiation of the structural injustices produced by colonialism, self-determination was first codified as a right vesting exclusively in colonized peoples and continues to carry special force with respect to decolonizing peoples today. Yet unless persistent colonial dynamics are challenged, climate migration threatens to permanently extinguish the self-determination of Oceanic states, reproducing and exacerbating past injustices. The fate of islands has global consequence. Currently on the frontlines of climate change, the situation in islands today foreshadows the future of other decolonizing geographies as climate impacts intensify.

This Article will suggest that decolonizing states can leverage colonial histories to protect their self-determination in light of climate change. Taking the Republic of the Marshall Islands—one of the island states most imminently threatened by climate change—as a case study, this Article will first share Marshallese perspectives demonstrating that migration is not an acceptable response to climate change. Next, this Article will advance a novel climate justice theory, connecting colonial conduct to the threat of climate migration to establish that international human rights and decolonization norms vest colonial powers with moral and legal obligations to assist their former colonies with self-determination-preserving adaptation strategies. Finally, this Article will concretize this theory, suggesting specific legal strategies that Marshallese and similarly situated communities might pursue.

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