INTRODUCTION

In 1993, Proposta de Emenda à Constituição (Proposal of Constitutional Amendment) 171 (PEC 171) was proposed in an effort to combat what was seen as a rise in violent crime committed by Brazilian youth.1 If ratified in its original form, PEC 171 would reduce the age of criminal responsibility in Brazil from eighteen to sixteen years old. 2 While the Amendment did not gain traction when first introduced, 3 recent highly publicized juvenile crimes brought it to the forefront of Brazilian legislation in 2015. 4 The Amendment has since garnered a considerable amount of congressional support despite being fiercely condemned by the Brazilian president.5

The Brazilian government continues to debate the advisability of adopting the Amendment. 6 Pending a formal ratification or rejection of PEC 171, this Note addresses the potential implications of adopting such legislation. Specifically, the similarity of the proposed Amendment to the current statutory guidelines permitting the transfer of juveniles to adult court in Virginia, allows for the application of a comparative criminal justice analysis.7

This Note contends that, based on decades of research citing the negative impact of juvenile transfer in Virginia, 8 Brazil should reject PEC 171 and instead strengthen its existing system of juvenile justice. Part I provides an overview of the social and legal context of juvenile justice in both Brazil and the United States. Part II addresses juvenile transfer in Virginia and its attendant consequences. Part III argues for the use of a comparative justice framework when examining the impact of transfer laws in Brazil. Finally, Part IV analyzes the potential consequences of reducing the age of criminal responsibility in Brazil and provides germane policy suggestions. Based on evidence from decades of research on the impact of transfer in Virginia, this Note concludes that the ratification of PEC 171 in Brazil will result in far-reaching, and likely unanticipated, negative consequences for both the Brazilian population at large and the Brazilian youth subjected to adult prosecution.

I. BACKGROUND

A. Constitution of Brazil

Largely due to the evolving nature of the Brazilian government, as well as several coups which resulted in brief periods of authoritarian leadership, Brazil operates under its seventh Constitution. 9 The Constitution is “federative” in that it grants “greater legislative (and unifying) authority to the central government with state legislation following national direction.” 10 The Brazilian Constitution is “the supreme law of the land . . . [and] binds all public actors, all state departments and all powers.” 11 As contrasted with the United States Constitution, the Brazilian Constitution is expansive and enumerates a wide array of social and political rights, including the rights of children.12

Though only in force since 1988, Brazil’s current Constitution already includes ninety–five amendments.13 The amendment process in Brazil first requires a proposal by either “the President; at least one third of the members of the house of representatives; at least one third of the members of the Senate; or a petition of more than half of the Brazilian states [sic] legislature.” 14 Following the proposal, “a two-fold reading in both houses as well as the approval of at least three-fifths of both houses” is required.15

† J.D. 2017, Regent University School of Law; M.A. 2011, Old Dominion University. Special thanks to Professor Lynne Marie Kohm for her guidance, advice, and calming presence.
1 Sam Aman, Selective Adulthood: Brazil Moves to Lower Age of Criminal Responsibility, COUNCIL ON H EMISPHERIC AFF. (May 29, 2015), http://www.coha.org/selective-adulthood-brazil-moves-to-lower-age-of-criminalresponsibility/. The original proposal by Congressman Domingos also suggests that modern juveniles are more mentally developed than the youth of previous decades and are therefore capable of understanding the consequences of their actions. Id.; see also Ministério Público, PEC 171/1993, http://www.mprs.mp.br/infancia/legislacao/id2658.htm (translation on file with J. Global Just. & Pub. Pol’y) (last visited Mar. 6, 2017).
2 Aman, supra note 1.
3 Id. It has been noted that PEC 171 likely did not “pass the necessary congressional hurdles” when first introduced because the political composition of congress at the time was less conservative. Id.
4 Id. For instance, in 2014 fourteen-year-old Yorrally Dias Ferreira was murdered by her ex-boyfriend two days before he turned eighteen. This case made headlines due to the gruesome nature of the crime; “Ferreira’s killer filmed her bleeding body and spread the footage on the Internet, shocking the country and igniting social media networks.” Id.
5 Id.; see also Associated Press, Brazil’s Congress Reduces Age of Criminal Responsibility to 16, GUARDIAN (July 2, 2015), http://www.theguardian.com/world/2015/jul/02/brazil-age-of-criminal-responsibility-16 [hereinafter Brazil’s Congress Reduces Age of Criminal Responsibility to 16].
6 See Aman, supra 1; see also Brazil’s Congress Reduces Age of Criminal Responsibility to 16, supra note 5.
7 See discussion infra Part III.
8 See discussion infra Part II.
9 Jesse Burgess, Comment, Let them Eat Cake: Constitutional Rights to Food, 18 WILLAMETTE J. INT’L L. & DISPUTE RES. 256, 268 (2010); see also Brazil – Legal History, FOREIGN LAW GUIDE [hereinafter Legal History], http://0-referenceworks.brillonline.com.library.regent.edu/entries/foreign-law-guide/brazil-legal-history-COM_037301 (last updated Oct. 19, 2015).
10 Legal History, supra note 9.
11 Nick Oberheiden, Law of Brazil, OBERHEIDEN L. GROUP,
http://www.lawofbrazil.com/ (last visited Dec. 30, 2015).
12 See generally CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION], translated in Brazil’s Constitution of 1988 with Amendments through 2014, CONSTITUTE (Keith S. Rosenn, trans.), https://www.constituteproject.org/constitution/Brazil_2014.pdf (last visited Mar. 6, 2017) [hereinafter Brazil’s Constitution of 1988].
13 See Emendas Constitucionais [Constitutional Amendments], P RESIDÊCIA DA REPÚBLICA , http://www.planalto.gov.br/ccivil_03/Constituicao/Emendas/Emc/quadro_emc.htm (last visited Mar. 6, 2017).
14 Oberheiden, supra note 11.
15 Id.

INTRODUCTION

Historically, the United States has been a popular destination country for international immigrants, and the topic of immigration tends to be controversial in the American political landscape. In the summer of 2014, however, a special group of immigrants dominated the national conversation: unaccompanied children from Latin America. 1 Headlines from national news outlines reported on the vitriolic issue of how the U.S. should respond to the perceived increase in unaccompanied children crossing the border. President Obama addressed the issue, stating that although the actual number of children crossing the border was at an all-time low,2 he would still implement a program to provide unaccompanied migrant children representation through the creation and funding of AmeriCorps.3 Created in June of 2014, the organization is funded by two million dollars in grants and “provide[s] one-hundred lawyers and paralegals in twenty-eight states” to represent unaccompanied immigrants “under the age of sixteen in removal proceedings.”4

Providing legal representation in a system where there is no right to counsel is an important first step, 5 but the challenges of representing unaccompanied child immigrants demands a multidisciplinary approach. Recently, the rise of “Trauma-Informed Care” (TIC) in the medical and social services field has revolutionized services for children, and its philosophy and methods are directly transferrable to those engaged in “legal care.” 6 Through a wedding of TIC and zealous legal representation, a child’s journey through the legal system need not be as traumatic as the journey to the United States.

I. BACKGROUND OF LATIN AMERICAN IMMIGRATION

The United States is often referred to as “a nation of immigrants,”7 and according to the Migration Policy Institute, the U.S. is the number one destination for immigrants. 8 In fact, according to the Census Bureau, the percentage of the United States population that is foreign born has been on the rise since the 1970s and reached 12.9% in 2010.9 The Census Bureau also reports that the majority of foreign born people in America are from Mexico and Central America. 10

The top Latin American source countries for immigration to the United States are Mexico, El Salvador, and Guatemala,11 all countries with high levels of political and economic insecurity. 12 Many explanations are circulated for the high number of immigrants from these countries, and each source country has different “push” factors. However, a few themes seem to emerge from every analysis: dangerous or economically disadvantageous conditions in the home country, the goal of family reunification, and relative proximity to the United States.13

Although Latin American immigration to the United States has been on the rise for decades, the summer of 2014 highlighted a perceived surge of unaccompanied immigrant children. 14 The issue came to the forefront of American news when townspeople in Arizona and California gathered to protest and turn away buses of immigrant children. 15 In California, the buses were leaving overcrowded Texas detention centers and the children were in the care of older relatives, but in Arizona, the buses transported unaccompanied immigrant children exclusively. 16 Arizona protestors bearing signs with phrases like, “no open borders” and blocking buses full of children provoked outrage and added a new wrinkle to the immigration debate:17 how should the United States deal with unaccompanied children crossing the border?

† Student attorneys in the Thomas and Mack Immigration Clinic at the William S. Boyd School of Law. Many thanks to Professor Fatma Marouf for her fearless leadership of the Clinic and her invaluable contributions to this article, which started out as a project for her immigration class.
1 PETER J. MEYER ET AL ., CONG . RESEARCH SERV., UNACCOMPANIED CHILDREN FROM CENTRAL AMERICA : FOREIGN POLICY CONSIDERATIONS, 1 (2016), http://trac.syr.edu/Immigration/library/P10211.pdf; see e.g. Sonia Nazario, The Children of the Drug Wars: A Refugee, Not an Immigration Crisis, N.Y. TIMES (July 11, 2014), https://www.nytimes.com/2 014/07/13/opinion/sunday/a-refugee-crisis-not-an-immigration-crisis.html; Lauren Fox, Anti-Immigrant Hate Coming From Everyday Americans, U.S. NEWS (July 24, 2014), http://www.usnews.com/news/articles/2014/07/24/anti-immigrant-hate-coming-from-everyday-americans.
2 President Barak Obama, Remarks by the President in Address to the Nation on Immigration (Nov. 20, 2014).
3 Erin B. Corcoran, Getting Kids Out of Harm’s Way: The United States’ Obligation to Operationalize the Best Interest of the Child Principle for Unaccompanied Minors, 47 C ONN. L. REV . ONLINE 1, 5 (2014).
4 Id.
5 A recent survey of similarly-situated immigrants in removal proceedings revealed that immigrants with legal representation enjoyed odds fifteen times greater than immigrants without representation. Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. P A . L. REV . 1, 2 (2015). Recently, New York became the first state to provide all immigrants in removal proceedings with an attorney. New York State Becomes First in Nation to Provide Lawyers for All Immigrants Detained and Facing Deportation, VERA INST. JUST., https://www.vera.org/newsroom/press-releases/new-york-state-becomes-first-in-the-nation-to-provide-lawyers-for-all-immigrants-detained-and-facing-deportation (Apr. 7, 2017).
6 Carly B. Dierkhising, et al., Trauma-Informed Justice Roundtable: Current Issues and New Directions in Creating Trauma-Informed Juvenile Justice Systems, NAT’L CHILD TRAUMATIC S TRESS NETWORK (Aug. 2013), http://www.nctsn.org/sites/default/files/a
ssets/pdfs/jj_trauma_brief_introduction_final.pdf.
7 See, e.g., Kay Deaux, A Nation of Immigrants: Living Our Legacy, 62 J. SOC. ISSUES 633, 634 (2006). This phrase was popularized by John F. Kennedy’s book of the same name. Id.; JOHN F. KENNEDY, A NATION OF IMMIGRANTS (1959).
8 Top 25 Destinations of International Migrants, M IGRATION POL’Y INST. (2015), http://www.migrationpolicy.org/programs/data-hub/international-migration-statistics.
9 Steven A. Camarota, Ctr. for Immigration Studies, Immigrants in the United States: A Profile of America’s Foreign-Born Population 9 (2012),
http://cis.org/sites/cis.org/files/articles/2012/immigrants-in-the-united-states-2012.pdf; The Foreign–Born Population in the United States, U.S. Census Bureau 3, https://www.census.gov/newsroom/pdf/cspan_fb_slides.pdf (last visited Mar. 18, 2017).
10 The Foreign–Born Population in the United States, supra note 9, at 6; CAMAROTA, supra note 9, at 16.
11 Jie Zong & Jeanne Batalova, Frequently Requested Statistics on Immigrants and Immigration in the United States, MIGRATION POL’Y INST. (Apr. 14, 2016), http://www.migrationpolicy.org/article/frequently-requested-statistics-immigrants-and-immigration-united-states.
12 See U.S. CONFERENCE OF CATHOLIC BISHOPS, MISSION TO CENTRAL AMERICA : THE FLIGHT OF UNACCOMPANIED CHILDREN TO THE UNITED STATES 2, 8 (Nov. 2013), http://www.usccb.org/about/migration-policy/upload/Mission-To-Central-America-FINAL-2.pdf; Jie Zong & Jeanne Batalova, Central American Immigrants in the United States, MIGRATION POL’Y INST. (Sept. 2, 2015), http://www.migrationpolicy.org/article/central-american-immigrants-united-states.
13 U.S. CONFERENCE OF CATHOLIC BISHOPS, supra note 12; see also Gordon H. Hanson & Craig McIntosh, Birth Rates and Border Crossings: Latin American Migration to the US, Canada, Spain, and the UK, 122 ECON . J. 707, 708–09, 716 (2012); Jesus Rios & Steve Crabtree, One in Four Latin Americans Wishes to Emigrate, GALLUP (Jan. 21, 2008), http://www.gallup.com/poll/103837/one-four-latin-americans-wishes-emigrate.aspx.
14 PETER J. MEYER ET AL., supra note 1.
15 Michael Martinez et al, Growing Protests Over Where to Shelter Immigrant Children Hits Arizona, CNN (July 16, 2014), http://www.cnn.com/2014/07/15/us/arizona-immigrant-children/; Michael Martinez & Holly Yan, Showdown: California Town Turns Away Buses of Detained Immigrants, CNN (last updated July 3, 2014), http://www.cnn.com/2014/07/02/us/california-immigrant-transfers/.
16 See sources cited supra note 15.
17 See Martinez et al., supra note 15. Some protestors also distributed flyers which read “[w]e are being invaded!” Id.

INTRODUCTION

China is not known for a strong compliance with international law.1 This is particularly true in regard to international laws regarding human rights. 2 In at least one area, however, China is making impressive gains. In 2012, China passed a newly amended version of its Criminal Procedure Law. 3 These amendments included a brand new chapter on the treatment of juveniles.4 The chapter was remarkable for just how closely its reforms line up with international laws on children’s rights and juvenile justice. Even more notably, in the years since the passage of the bill, China appears to be making tremendous strides towards applying these legal reforms in practice — not only enforcing these standards, but proudly modeling them as “best practices.”5

Why is such progressive legal reform occurring in the field of juvenile justice, in a country which is often considered resistant at best towards implementing human rights reforms? 6 Why does China appear to be complying so well with international standards on human rights in one area of law, when it has not in many others?7

Understanding how this process of reform has occurred requires looking at both the social and political pressures that motivated the reform efforts, as well as the normative process through which they occurred. This process has been heavily influenced by an openness to legal experimentation and to the role of a variety of actors, including non-state actors, in introducing new concepts and models of dealing with juvenile crime. The juvenile justice system therefore provides a particularly interesting case study through which to explore modes by which the China implements legal reform.

I. THE 2012 CRIMINAL PROCEDURE LAW AND INTERNATIONAL LAW

On March 14, 2012, the Chinese People’s Congress adopted an amended version of the Chinese Criminal Procedure Law, which went into effect January 1, 2013. 8 Unlike previous versions of the Criminal Procedure Law, the amended version of the law has an entirely new section pertaining to juvenile defendants and how juveniles should be treated within the criminal justice system.9 The chapter is remarkable for how well the requirements outlined align with the requirements on juvenile justice as prescribed in international law.

The chapter includes eleven articles, each delineating specific requirements for how juveniles should be handled in the criminal justice system.10 Nearly all theories, language, and specific requirements set out in the chapter have been previously codified in international laws and guidelines on juvenile justice.11

The chapter sets out a theory of juvenile justice that promotes rehabilitation and reintegration with society. Article 1 of the amended Criminal Procedure Law (CPL) explains that officials should “[i]mplement the directive of education, reform, and rescue for juveniles committing crimes, and continue the principle of education first with punishment as a supplement.”12 This aligns with the theories expressed in both the Convention on the Rights of the Child (CRC) and International Covenant on Civil and Political Rights (ICCPR) that the underlying theory of juvenile justice should be rehabilitative, rather than punitive. 13 The new chapter then proceeds to set out specific requirements regarding the treatment of juveniles, nearly all of which are required by international instruments such as the CRC, ICCPR, or U.N. guidelines.

The new chapter requires, for example, that all juveniles be given access to legal counsel, a key procedural right expressed by both the CRC and ICCPR.14 While this was previously set out in Chinese law, the effectiveness of this requirement was limited. 15 The new law now explicitly places the onus on public officials such as the courts, procuratorate, or other public security officials to ensure that juveniles are, in fact, represented by counsel in criminal cases.16 It also requires that juveniles should be given special treatment throughout the criminal justice process to protect their unique vulnerabilities. For example, the law suggests that officials working with children should be specially trained to handle such cases17 and that juveniles who are detained must be separated from adult offenders.18 The law also requires that all court records must be sealed in juvenile cases to protect the privacy of the juvenile defendant.19

† The author is a Staff Attorney at Children’s Rights in New York City. Prior to this she was a Visiting Fellow at the Center for Comparative and Public Law at the University of Hong Kong. My sincere thanks to the Salzburg Cutler Law Fellows Program which helped to spark and critique an initial conception of this paper, to Professor Katherine Franke and my brilliant classmates in her research and writing seminar, who reviewed early drafts and improved my writing tremendously, and to HKU’s Center for Comparative and Public Law for allowing me the opportunity and resources to finalize this as a Visiting Fellow.
1 Jacques deLisle, China’s Approach to International Law: A Historical Perspective, 94 AM . SOC’Y INT’L L. PROC . 267, 267 (2000).
2 See Camila Ruz, Human rights: What Is China Accused of?, BBC NEWS (Oct. 21, 2015), http://www.bbc.com/news?magazine-34592336.
3 Wendy Zeldin, China: Amendment of Criminal Procedure Law, LIBR. CONGRESS: GLOBAL LEGAL MONITOR (Apr. 9, 2012), http://www.loc.gov/law/foreign-news/article/china-amendment-of-criminal-procedure-law/.
4 Id.
5 See John Kamm, Trying Juveniles, N.Y. TIMES (Nov. 29, 2012), http://www.nytimes.com/2012/11/30/opinion/global/trying-juveniles.html.
6 THOMAS LUM, CONG. RESEARCH SERV., RL34729, HUMAN RIGHTS IN CHINA AND U.S. POLICY 1–3 (2011).
7 Kamm, supra note 5
8 Zeldin, supra note 3.
9 Id.
10 Zhonghua Renmin Gongheguo Xingshi Susong Fa (中华人民共和国刑事诉讼法) [Criminal Procedure Law of the People’s Republic of China] (promulgated by the Nat’l People’s Cong., Mar. 14, 2012, effective Jan. 1, 2013) pt. 5, ch. 1, translated in UN TREATY BODY DATABASE , http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/CHN/INT_CAT_ADR_CHN _20050_E.doc (last visited Mar. 3, 2017) [hereinafter Criminal Procedure Law].
11 There are eight documents which set out the majority of the international laws and standards on juvenile justice. Two of these are binding international treaties. These are the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR). Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3; International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 171. China has signed both of these documents and ratified the CRC. TREATY SECTION, OFFICE OF LEGAL AFFAIRS, MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL, at 204, 389, U.N. Sales No. E.09.V.3 (2009). There are also five relevant United Nations rules and guidelines that provide countries with further standards on developing their juvenile justice systems. See High Comm’r for Human Rights, Rep. of the High Commissioner for Human Rights on the Protection of Human Rights of Juveniles Deprived of Their Liberty, ¶ 5, U.N. Doc. A/HRC/21/26 (Aug. 3, 2012) (collecting the five sets of rules and guidelines). Although these guidelines are not binding, they can be seen as interacting with, and sometimes clarifying, the rights described in the CRC and ICCPR. Additionally, the Committee on the Rights of the Child, the body charged with monitoring compliance with the Convention on the Rights of the Child (CRC), has issued a variety of general comments, which provide greater clarity on how the Convention on the Rights of the Child should be interpreted. In particular, General Comment No. 10 provides on how to interpret the CRC’s requirements on juvenile justice. Comm. on the Rights of the Child, General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, ¶ 4, CRC/C/GC/10 (Apr. 25, 2007) [hereinafter General Comment No. 10].
12 Criminal Procedure Law, supra note 10, art. 266.
13 The Convention on the Rights of the Child (CRC) states that juveniles accused of violating criminal law should be treated in a way that promotes the child’s reintegration and productive role in society, as well as promoting “the child’s sense of dignity and worth.” Convention on the Rights of the Child, supra note 11, art. 40(1). The ICCPR requires that states should “take account of . . . the desirability of promoting [the] rehabilitation” of children in conflict with the law. International Covenant on Civil and Political Rights, supra note 11, art. 14(4). General Comment No. 10 says “[t]his principle reflects the fundamental human right . . . in article 1 of [the Universal Declaration of Human Rights].” General Comment No. 10, supra note 11, ¶ 13.
14 Article 267 of the Criminal Procedure Law states “[w]here a minor criminal suspect or defendant has not entrusted a defender, the people’s court, people’s procuratorate or public security organ concerned shall notify a legal aid agency to assign a lawyer as the defender of the minor.” Criminal Procedure Law, supra note 10, art. 276. The Convention on the Rights of the Child requires that “[e]very child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance,” and “to have legal or other appropriate assistance in the preparation and presentation of his or her defense.” Convention on the Rights of the Child, supra note 11, arts. 37(d), 40(2)(b)(ii). General Comment No. 10 clarifies that when interpreting “[l]egal or other appropriate assistance,” legal assistance should not be denied simply because other assistance is available. General Comment No. 10, supra note 11, ¶ 49. The right to counsel and free legal aid is also required by both the ICCPR and the Beijing Rules. International Convention on Civil and Political Rights, supra note 11, art. 14(3)(d); G.A. Res. 40/33, annex, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), rs. 7.1, 15.1 (Nov. 29, 1985) [hereinafter Beijing Rules]. Although international law imposes no direct duty on any specific actors to ensure a juvenile’s access to counsel, best practice guides have recommended that legislation or guidelines for police or prosecutors “should impose a duty on [them] . . . to assist the child in obtaining legal [assistance].” CAROLYN HAMILTON, UNICEF, GUIDANCE FOR LEGISLATIVE REFORM ON JUVENILE JUSTICE 45–46 (2011).
15 The right to counsel had actually already been specified in Chinese law in 2006. Zhonghua Renmin Gongheguo Wei Chengnian Ren Baohu Fa (中华人民共和国未成年人保护法) [Law of the People’s Republic of China on the Protection of Minors] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 29, 2006, effective June 1, 2007), art. 51, translated in Law of the People’s Republic of China on the Protection of Minors (2006 Revision) [Revised], PKULAW.CN (last visited Mar. 4, 2017) [hereinafter Law on the Protection of Minors]. That law, however, stated that should a minor be in need of legal aid, a legal aid institution should provide it to him. Id. The burden therefore lay on the legal aid institutions (who are themselves a relatively new and problematic institution in China and who often have little power in the system) and put no direct burden on any of the actual key players in the criminal process. Legal Aid, CONG.-EXECUTIVE COMMISSION
ON CHINA , https://www.cecc.gov/legal-aid (last visited Feb. 3, 2017).
16 Criminal Procedure Law, supra note 10, art. 267.
17 Article 266 of the Criminal Procedure Law specifies that officials working in the juvenile justice system should be “familiar with the physical and mental characteristics of minors.” Id. art. 266. This echoes language in the U.N. Guidelines that “[l]aw enforcement and other relevant personnel, of both sexes, should be trained to respond to the special needs of young persons,” G.A. Res. 45/112, annex, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), ¶ 58 (Dec. 14, 1990) [hereinafter Riyadh Guidelines], and that “police officers who frequently . . . deal with juveniles” should be “specially instructed and trained,” Beijing Rules, supra note 14, r. 12.1.
18 Article 269 of the Criminal Procedure Law requires that juveniles “held in custody or arrested or who are serving sentences . . . [should be held] separately from adults.” Criminal Procedure Law, supra note 10, art. 269. The CRC in Article 37(c) states that “every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so.” Convention on the Rights of the Child, supra note 11, art. 37(c); see also, e.g., International Covenant on Civil and Political Rights, supra note 11, art. 10(2)(b) (requiring that juveniles accused of crimes be kept separate from adults).
19 The Criminal Procedure Law requires that juvenile records be sealed. Criminal Procedure Law, supra note 10, art. 275. The Chinese Law on the Protection of Minors previously required that public sources such as the news or “computer network[s]” should not share information about juvenile defendants. Law on the Protection of Minors, supra note 15, art. 58. However, the amended Criminal Procedure Law now requires that all juveniles under the age of 18 who are sentenced to five years or less shall have their criminal records sealed, and only court officials will be able to access these documents. Criminal Procedure Law, supra note 10, art. 275. Such a requirement for privacy is expressed in the CRC in Article 40(2)(b)(vii), which states that a juvenile defendant has a right “[t]o have his or her privacy fully respected at all stages of the proceedings.” Convention on the Rights of the Child, supra note 11, art. 40(2)(b)(vii). This vague language has been clarified by the Committee in General Comment No. 10, explaining that “[a]ll stages of the proceedings” starts at the point of “initial contact with law enforcement” bodies and extends until either a “final decision” or “release from supervision.” General Comment No. 10, supra note 11, ¶ 64. General Comment No. 10 further clarifies that there should be some form of domestic legislation requiring trials to occur “behind closed doors” and that records should be kept “strictly confidential.” Id. at ¶¶ 64–66. The Beijing Rules similarly specify the juvenile’s “right to privacy” so as to “avoid harm being caused to her or him by undue publicity or by the process of labeling” and that “[i]n principle, no information that may lead to the identification of a juvenile offender shall be published.” Beijing Rules, supra note 14, rs. 8.1–2. “Records of juvenile offenders shall be kept strictly confidential . . . .” Id. r. 21.1.

INTRODUCTION

Until the U.S. Supreme Court’s 2005 decision in Roper v. Simmons, it was still lawful to sentence a juvenile defendant to death in twenty American states.2 In holding that the juvenile death penalty violates the Eighth Amendment, the Court questioned whether the main justifications that support the use of the death penalty in cases involving adult offenders, namely deterrence and retribution, can be achieved through the execution of juvenile offenders.3 Specifically, Justice Kennedy argued that the case for achieving the goal of retribution was weakened by the fact that their moral culpability was “diminished, to a substantial degree, by reason of youth and immaturity.” 4 With respect to the potential deterrent effect of the death penalty, the majority questioned whether juveniles would be “susceptible to deterrence” given juveniles’ diminished culpability and ability to think through the consequences of their actions.5

Despite the “progress” represented by the Roper decision, the United States continues to punish juvenile offenders more harshly than the rest of the world.6 Following the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama, a number of states have abolished the sentence of life without parole for juvenile offenders. 7 Still the United States remains an outlier.

Although American courts impose juvenile sentences up to and including life imprisonment, according to research conducted by David A. Shapiro, at least forty countries around the world limit the maximum sentence imposed on juvenile offenders to ten years.8 At the far end, twelve countries have a maximum juvenile sentence of twenty-years imprisonment.9

To explain the harsh treatment of juvenile offenders in the United States, scholars have typically identified a number of factors including: public support for punishment, cultural attitudes towards punishment, and rates of violent crime. Specifically, beginning in the 1990s, politicians substantially stiffened penal sanctions in juvenile cases riding a renewed wave of interest in the philosophy of individual responsibility and accountability. These changes paralleled a nearly 80% increase in violent crime related arrests of juveniles 17-years-old or younger that occurred between 1985 and 1995.10 Consistent with this shift in sentencing philosophy, between 1992 and 1997, forty-seven states changed their sanctioning policies by expanding the sentencing options available to judges, increasing the severity of juvenile sanctions, and creating procedures to permit prosecutors to transfer juveniles to adult court.11 Due to these changing political winds, juvenile incarceration rates rose dramatically during that same time period 12 and more juveniles were tried and sentenced as adults.13 According to Jeffrey Butts’ 1997 study, public fear of juvenile crime and distrust in juvenile justice led to a 71 percent increase between in youths waived into adult court between 1985 and 1994.14

The most noticeable effect of that waiver is that, in many states, juvenile offenders may receive life without parole sentences.15 Although the Supreme Court’s decisions in Graham v. Florida16 and Miller v. Alabama17 led some states to eliminate that harsh sentencing option altogether,18 juvenile offenders in Delaware, Iowa, Louisiana, Michigan, Nebraska and Washington may still receive a sentence of life without parole as a possible sentence for certain offenses.19

† Professor of Law, Indiana University Robert H. McKinney School of Law. Professor Boyne holds a B.A. cum laude, Cornell University; M.B.A. University of Minnesota; J.D. University of Southern California Gould School of Law; L.L.M. Justus-Liebig Universität, and a Ph.D. University of Wisconsin-Madison. Parts of this article previously appeared in Chapter Eight of SHAWN M ARIE BOYNE , THE GERMAN PROSECUTION SERVICE : GUARDIANS OF THE LAW ? (Springer-Verlag Berlin Heidelberg, 2014). Republished with permission.
1 Josine Junger-Tas, Trends in International Juvenile Justice: What Conclusions Can be Drawn?, in INTERNATIONAL HANDBOOK OF JUVENILE JUSTICE 505, 505 (J. Junger-Tas & S.H. Decker eds., 2006).
2 543 U.S. 551, 564 (2005) (noting that at the time of the decisions 30 states prohibited the use of the juvenile death penalty).
3 Id. at 570–71.
4 Id. at 571.
5 Id. at 571–72.
6 See Barry Krisberg, Rediscovering the Juvenile Justice Ideal in the United States, in COMPARATIVE Y OUTH J USTICE 6 (John Muncie & Barry Goldson eds., 2006).
7 Cara H. Drinan, Juvenile Justice in America: We Can Do Better, HUFFINGTON POST (June 13, 2015), http://www.huffingtonpost.com/cara-h-drinan/juvenile-justice-in-ameri_b_7054254.html (stating that Delaware, Hawaii, Massachusetts, Texas, West Virginia and Wyoming have abolished the practice of juvenile life without parole, while other states have precluded the sentence for certain categories of juveniles).
8 David A. Shapiro, What’s Beneath the Graham Cracker?: The Potential Impact of Comparative Law on the Future of Juvenile Justice Reform After Graham v. Florida, 24 PACE INT’L L. REV . 119, 139–40, 156 (2012).
9 Id. at 140.
10 Arrests for Violent Crimes by Age, 1970–2003, U.S. Dep’t of Justice (2004), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=2028 (issuing FBI Uniform Crime Reports).
11 See e.g., Junger-Tas, supra note 1, at 511; P ANEL ON J UVENILE CRIME: PREVENTION, TREATMENT, AND CONTROL, JUVENILE CRIME, JUVENILE JUSTICE 5 (Joan McCord et al. eds., 2001).
12 Malcolm W. Klein, Thoughts on Juvenile Justice Systems and Research, 9 EUR. J. CRIM. POL’Y & RES. 273, 275 (2001).
13 Office of Juvenile Justice and Delinquency Prevention, Young Offenders: What Happens and What Should Happen, NATIONAL INSTITUTE OF JUSTICE 2 (2014), https://www.ncjrs.gov/pdffiles1/nij/242653.pdf.
14 JEFFREY BUTTS, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, DELINQUENCY CASES WAIVED T O CRIMINAL COURT, 1985–1994 (1997); see also Shelly S. Schaefer & Christopher Uggen, Blended Sentencing Laws and the Punitive Turn in Juvenile Justice, 41 L AW & S OC . INQUIRY 435, 436 (2016).
15 Juvenile Justice: Rethinking Punitive Approaches to Addressing Juvenile Crimes, DEVELOPMENTS (UNIV . P ITT. OFF. DEV .), Jan. 2009, 6, 7, http://www.ocd.pitt.edu/Files/PDF/dev2009-01.pdf. In some states, waivers are no longer required for juveniles who commit certain types of offenses or have reached a certain age. Prosecutors may file these cases directly into adult criminal courts. See Patrick Griffin et al., Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting, OFF. JUV. & DELINQ. PREVENTION, Sept. 2011, 1, 9–10, https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf.
16 560 U.S. 48, 82 (2010) (holding that it is unconstitutional to sentence someone to life in prison without the possibility of parole for a non-homicide crime committed under the age of 18).
17 565 S. Ct. 2455, 2468–69 (2012) (holding that judges must consider a number of factors before sentencing a juvenile to life without parole including the defendant’s immaturity; family and home environment; family and peer pressures; an “inability to deal with police officers or prosecutors” or their own attorney; and “the possibility of rehabilitation”).
18 See Sarah Alice Brown, Trends in Juvenile Justice: State Legislation 2011-2015, NAT’L CONF. OF ST. LEGISLATURES 3 (2015), http://www.ncsl.org/documents/cj/Juvenile_Justice_Trends_1.pdf (noting those states include: California, Hawaii, Massachusetts, Nevada, Texas, Utah, Vermont, West Virginia and Wyoming).
19 Id.

Thank you to Ernie Walton and the Center for Global Justice, Human Rights, and the Rule of Law for inviting me to participate in today’s Symposium. I divide my comments today into three parts. First, I’ll discuss how the Supreme Court has come to view the nature of the individual rights that first received Constitutional protection in Griswold v. Connecticut.1 Then, I’ll turn to the effect of Griswold and its progeny on women’s social and economic equality in the U.S. And finally, I’ll offer some thoughts on the future and challenges that continue to face women who seek equal opportunities to define for themselves how their lives should go.

I. GRISWOLD V. CONNECTICUT (AND PROGENY)

In Griswold, the Supreme Court held that a state law criminalizing the use of contraception violated married couples’ privacy rights. 2 The decision promised that couples would be free from state intrusion into the bedroom.3 Seven years later, in Eisenstadt v. Baird, the Court extended the same protection to unmarried couples.

The Court in Griswold found the right to privacy implicit in the various provisions of the Bill of Rights.5 Justice Goldberg’s concurrence, moreover, pointed to the Ninth Amendment’s assurance that the enumeration of certain rights should not be construed to deny the existence of others. 6 In other words, the Framers understood the impossibility of cataloging all individual rights entitled to Constitutional protection (one of the reasons given by Alexander Hamilton for excluding from the Constitution altogether a Bill of Rights). 7 The Ninth Amendment clarifies that the list of rights spelled out in the Bill of Rights is not an exhaustive one. 8

Nonetheless, Constitutional originalists have long criticized the approach taken by the Griswold Court. 9 And I think the Court has responded by better explaining the nature of the privacy right in its later decisions. Eisenstadt v. Baird more explicitly grounded the right to privacy in the Fourteenth Amendment as part of the liberty guaranteed by that provision. 10 In Lawrence v. Texas, where the Court held in 2003 that criminalizing gay sex was not within the Constitutional power of the states, 11 Justice Kennedy wrote for the Court that “[l]iberty … presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct…. [L]iberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” 12

Justice Kennedy also takes a jab at strict interpretationists. In surmising why the Framers did not explicitly include the right to adult consensual intimate conduct (including same-sex conduct), he writes in Lawrence, “[h]ad those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight.” 13 The document that establishes the foundational principles of the nation’s government and rights of individuals within it is not a statute or administrative regulation; it’s a Constitution.

Griswold and its progeny thus establish that we individuals have a Constitutionally-protected liberty interest in private intimate conduct. 14 Pure moral disapproval of conduct is not a sufficient reason for the state to prohibit conduct. For example, the Court held that the Texas statute criminalizing gay sex “further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” 15

Today we understand “privacy” to be an essential aspect of “liberty,” the essence of which is “[l]iberty . . . from unwarranted government[al] intrusion[].” 16

† Cabell Research Professor of Law, William & Mary School of Law. I thank the Institute at Regent University for inviting me to participate in this Symposium, and Charles Alvis for excellent research assistance.
1 Griswold v. Connecticut, 381 U.S. 479 (1965).
2 Id. at 485.
3 See id. at 485–86.
4 Eisenstadt v. Baird, 405 U.S. 438, 443, 454–55 (1972).
5 Griswold, 381 U.S. at 484–85.
6 Id. at 486–87 (Goldberg, J., concurring).
7 Id. at 486–89, 489 n.4.
8 Id. at 492.
9 See, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 7–9 (1971) (arguing that Griswold “is an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it”); Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 M ICH. L. REV . 1555, 1597–98 (2004) (“The Griswold-Roe-Lawrence line of cases has no apparent basis in the text or original meaning of the Due Process Clauses, and the Justices have never tried to show that there is one.”). Cf. Jamal Greene, The So-Called Right to Privacy, 43 U.C. DAVIS L. REV. 715, 742–43 (2010) (suggesting that progressives should answer these criticisms by reclassifying privacy rights as liberty rights).
10 See Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 SUP. CT. REV . 173, 197–98 (arguing that Eisenstadt “unmasks Griswold as based on the idea of sexual liberty rather than privacy” because the law challenged in Eisenstadt restricted the distribution rather than the use of contraceptives).
11 Lawrence v. Texas, 539 U.S. 558, 567, 578–79 (2003).
12 Id. at 562, 572 (emphasis added).
13 Id. at 578–79 (emphasis added).
14 See Lawrence v. Texas, 539 U.S. 558, 578 (2003); Eisenstadt v. Baird, 405 U.S. 438, 453–54 (1972); Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965).
15 Lawrence, 539 U.S. at 578.
16 Id. at 562.

Women’s rights changed markedly in the fifty years since Griswold v. Connecticut, 1 and this author believes the Griswold decision and its progeny weakened our body politic, and women’s rights, as a whole. This Article reviews Griswold and its effects through two particular lenses. The first lens focuses on federalism, exploring the negative effects of Griswold on the body politic where it weakened many aspects of our national experiment, a balance of power between two coexistent sovereigns, the state government and the federal government. The second lens spotlights women’s health as measured by health outcomes and economic incentives, arguing that political strong arming by the judiciary, an abuse of the police power, inhibits the political feedback required for legislatures to make informed decisions in the women’s health sphere.

I. HISTORICAL CONTEXT: FOUR “WAVES”

Women’s rights in the United States generally divides into “waves,” or periods, of activity or focus. 2 The first wave centered on suffrage and access to the franchise. 3 That wave pushed through the 1920s and obtained the ratification of the Nineteenth Amendment that granted female suffrage.4 The second wave (1920s–1990s), in which Griswold arose, addressed what is termed “de facto” inequalities, such as sexual and reproductive rights. 5 These inequalities were considered limitations to female workplace advancement due to childbirth and traditional domesticity, which had been largely a female role. 6 The development of women’s study programs and scholarship in women’s fields began to rise, 7 and during this time the terms sex and gender were differentiated; the former as a biological fact, and the latter as a social construct. 8

Wave three began in the mid-1990s as a reaction to the rejection of modernity by the second wave.9 In it, women functioned in a power role, exploiting their sexuality by proudly wearing the plunging necklines that the first two waves would consider as symbols of male oppression. 10 In addition, the third wave developed and embraced the concept of universal womanhood and brought in non-western ideologies of womanhood. 11 It grew and concentrated primarily in academic halls and focused a great deal on theory. 12

The current, or “fourth” wave extends the battle of women for equality to all marginalized people groups, viewing the third wave as too limiting in its exclusive focus on women. 13 This wave, as with all previous waves, does not perceive itself as a separate movement from its predecessors; rather, each group functions as a Hegelian dialectical synthesis, reacting to society’s antithesis against it, producing a new, blended approach to women’s rights. 14 For the purposes of this Article, the first wave—and the suffrage movement in particular—offers an excellent backdrop against which to measure Griswold and its effects.

† J.D. Regent University, 2008. Chief Counsel for Texas Center for Defense of Life.
1 Griswold v. Connecticut, 381 U.S. 479 (1965).
2 See Martha Rampton, Four Waves of Feminism, PAC. UNIV. OR. (Oct. 25, 2015), http://www.pacificu.edu/about-us/news-events/four-waves-feminism.
3 Id.
4 The Women’s Rights Movement, 1848–1920, U.S. H. OF REP.: HISTORY, ART & ARCHIVES , http://history.house.gov/Exhibitions-and-Publications/WIC/Historical-Essays/No-Lady/Womens-Rights/ (last visited Sept. 10, 2016).
5 A Look Back: The Second Wave of Feminism, RADICAL N OTION (June 1, 2015), http://www.theradicalnotion.com/look-back-second-wave-feminism/.
6 See Rampton, supra note 2.
7 Katherine D. Kalagher, The Development and Impact of Women’s Studies In American Higher Education, GOODWIN COLL. 7, 8 (2014), http://digitalcommons.goodwin.edu/cgi/viewcontent.cgi?article=1008&context=gen_fac_pubs.
8 Rampton, supra note 2.
9 See id.
10 Id.
11 Id.
12 See id.
13 See id.
14 Id.

INTRODUCTION

The European Court of Human Rights (the “Court”) recently decided a French same-sex marriage controversy that was engendered in 2004. 1 In June of 2004, mayor Noël Mamère officiated a marriage between Bertrand Charpentier and Stéphane Chapin.2 Mamère had intended his action to be a test of the compatibility of French law with same-sex marriage, and his ultimate intention was to pursue legal recourse as far as the European Court of Human Rights. 3 Through a refusal to grant an appeal on March 13, 2007, the French Cour de Cassation (the court of last resort for criminal and civil matters) upheld the proposition that marriage is exclusively between a man and a woman,4 and Chapin and Charpentier filed their application for appeal with the Court on September 6, 2007. 5

Perhaps one of the many reasons that same-sex marriage has garnered such eminent controversy in the modern era is due to the way in which proponents of a particular position predominately view counter opinions as being “based on animus.” 6 Without the regard to final causes of this socio-political dissension, the controversy is ripe for legal analysis. The Court accepted the present case to determine the compatibility of France’s ban of same-sex marriage with Articles 8, 12, and 14 of the European Convention of Human Rights (ECHR). 7 Since 1999, and at the time in which the controversy originated, French law recognized the following three types of legal unions: concubinage (similar to the American concept of common-law marriage), “the civil pact of solidarity” (also known as “Pacs;” a civil union other than marriage), and marriage. 8 Same-sex couples could previously avail themselves of concubinage and the civil pact of solidarity, but not legal marriage. 9 Something incredibly odd, however, happened in the time between the Court’s initial acceptance of Chapin in 2007, and the final decision in 2016—France legalized same-sex marriage by statute on May 17, 2013. 10 Therefore, any remedy the Court could have offered in judgment would have been obviated ipso facto, yet the legal enquiry of “discrimination” remained under Articles 8, 12, and 14 of the ECHR. 11

I. THE FACTS & PROCEDURAL HISTORY

In an attempted coup, Noël Mamère conducted a marriage between Bertrand Charpentier and Stéphane Chapin. 12 On May 27, 2004, the local Prosecutor filed an objection to the marriage with the civil registrar for the town of Bègles.13 However, Mamère, who was acting in his capacity as registrar, celebrated the marriage on June 5 despite the objection from the prosecutor.14 The Prosecutor appealed to the High Court of Bordeaux on June 22, and on July 27, this court found that the annulment and subsequent ban of same-sex marriage did not constitute discrimination under Articles 8, 12, and 14 of the ECHR. 15 On April 19, 2005, the Court of Appeals of Bordeaux upheld the lower court’s judgment, reasoning that no discrimination existed under the ECHR because homosexuals were permitted to live as a family and adopt children. 16 Finally, the highest court in France rejected a petition for appeal, deferring to the lower court and specially noting that “marriage is the union [between] a man and a woman.”17

† B.S. 2014, Regent University; J.D. 2017, Regent University School of Law.
1 See Chapin v. France, App. No. 40183/07, Eur. Ct. H.R. (2016),
http://hudoc.echr.coe.int/fre?i=001-163436 (translation on file with J. GLOBAL JUST. & PUB. POL’ Y); Press Release, Eur. Ct. H.R., Prohibition in France of Marriage Between Same-Sex Couples Prior to the Law of 17 May 2013 Was Not Contrary to the Convention, ECHR 199 (2016), http://hudoc.echr.coe.int/eng-press?i=003-5407086-6765196 [hereinafter Press Release].
2 Daniel Borrillo, Who Is Breaking with Tradition? The Legal Recognition of Same-Sex Partnership in France and the Question of Modernity, 17 YALE J.L. & F EMINISM 89, 93 (2005).
3 Id.
4 See Emmanuelle Bribosia, Isabelle Rorive & Laura Van den Eynde, Same-Sex Marriage: Building an Argument Before the European Court of Human Rights in Light of the US Experience, 32 BERKELEY J. INT’L L. 1, 6 (2014).
5 Chapin, App. No. 40183/07, Eur. Ct. H.R. ¶ 1; Press Release, supra note 1, at 2.
6 See LYNN D. WARDLE, MARK P. STRASSER & LYNNE MARIE KOHM , FAMILY L AW FROM MULTIPLE P ERSPECTIVES 114–15 (2014).
7 Chapin, App. No. 40183/07, Eur. Ct. H.R. ¶¶ 3–14; Press Release, supra note 1, at 2.
8 See Benoît de Boysson et al., France: Review of Family Law in 2010, in THE INTERNATIONAL SURVEY OF F AMILY L AW 187, 190 (Bill Atkin & Fareda Banda eds., 2011).
9 Id.
10 Angélique Devaux, The New French Marriage in an International and Comparative Law Perspective, 23 T UL. J. INT’ L & COMP . L. 73, 76 (2015).
11 Chapin, App. No. 40183/07, Eur. Ct. H.R. ¶¶ 3, 7–8; see also Press Release, supra note 1, at 2.
12 See Bribosia, Rorive, & Van den Eynde, supra note 4, at 6 (noting that the act of celebrating the marriage was civil disobedience).
13 Chapin, App. No. 40183/07, Eur. Ct. H.R. ¶ 12.
14 Id. ¶ 13.
15 Id. ¶¶ 14–15.
16 Id. ¶ 16; see also Convention for the Protection of Human Rights and
Fundamental Freedoms art. 8, Nov. 4, 1950, 213 U.N.T.S 221 [hereinafter ECHR]
(guaranteeing the right to private life and family).
17 Chapin, App. No. 40183/07, Eur. Ct. H.R. ¶ 20.

ABSTRACT

Without self-sustaining commerce, developing countries cannot move towards the recognition of basic human rights and twenty-first century living standards. The purpose of this article is to explore the legal and economic theories of taxation and tariffs applied to the elements of civic infrastructure: a robust physical transportation system and an economic structure. This article advocates for conforming trade union policy towards an efficiency hypothesis method dubbed “tax minimalism theory” that espouses tax theory norms: fairness, efficiency, and simplicity of administration. Applying this theory, this paper will critique newly implemented tariff laws in West Africa by the Economic Community of West African States for its adverse effects on the transportation sector and laissez-faire trade liberalization in Ghana and Nigeria.

INTRODUCTION

Human rights mean nothing to a nation without economic structure to promulgate human dignity and prosperity. 2 Without access to basic provisions, such as food,3 water, and comfortable shelter, people do not engage in economic cooperation and civic discourse. 4

To move society towards the recognition of basic human rights by closing the gap in income disparity, there are several necessary elements to foster a twenty-first century economy in the developing world. 5 The purpose of this Note is to explore what each of these elements are and how to apply them. Part I states that infrastructure is the foundation to advancing economic development in two-fold design: (1) a robust physical transportation system and (2) an economic structure in trade union policy. Part II advocates for a fair taxation system in cross-border commerce and legal codes promoting diverse business and capital generation to ensure the sustainability of infrastructure to bridge the commercial gap between cities and rural regions. Also, there must be a method to ensure enforcement of an economic infrastructure by managing foreign capital to a high degree of professionalism and honesty. Lastly, Part III applies the new paradigm of tax minimalism theory as an efficiency hypothesis to foster economic infrastructure that shapes trust in public institutions, national identity, and base development. In short, this Note will critique the Common External Tariff (CET), newly implemented by the Economic Community of West African States (ECOWAS), and its adverse effects on trade liberalization compounded with Value-Added Taxes (VAT), and further excise taxes in Ghana and Nigeria. The compounded levies continue to promulgate restrictive trade policies on food, consumer products, and particularly specific goods for economic development crucial to transportation infrastructure. The solution posited is lowering import tariffs and code reformation to incentivize foreign investment in West African countries through an innovative methodology dubbed “tax minimalism theory.” This theory is inspired from aesthetic design principles from a broad range of artistic professions to conform to the policies espoused by tax theorists: fairness, efficiency, and simplicity of administration.

I. GENERATING THE IDEA OF SUSTAINABLE INFRASTRUCTURE

Experts are universally in agreement that the foundation in solving economic challenges in the developing world begins with infrastructure.6 However, without the means to sustain a robust network of ports, roads, communications, and power generation, a nation will only survive in the modern world for a brief season. 7 With the absence of a proper central government authority, a local population can only expect more social destabilization and a lack of their most basic human rights to development.8

Likewise, the same sustainability problems plague developed countries and their transportation infrastructure systems, as in the case of the United States for example. 9 Studies have shown that the United States has serious infrastructure problems 10 because of a lack of transport network maintenance and new infrastructure projects to streamline commerce and transportation. The same infrastructure sustainability problems can be said for much of the developed world, which sorely needs external investment to fund critical transportation needs. 11 Before investment opportunities in infrastructure development can commence on the African continent, there is a need for liberalized trade laws to foster the self-replenishing cycle of a transport system.12 But to create the cycle, raw infrastructure materials and assembled machinery must be imported from the developed world in the most efficient and cost-effective manner.13

† This title is an homage to the renowned African novel on postcolonialism. CHINUA ACHEBE , THINGS FALL APART (1958).
†† Regent University School of Law, J.D. 2016. Mr. Gamboa received his Bachelor of Music magna cum laude with a double major in Violin Performance and Political Science from the John J. Cali School of Music and Montclair State University in 2012. Special thanks to Professor Kathleen McKee for her expert guidance and the staff of the Journal of Global Justice and Public Policy for their insight into the nuances of international law.
1 CHINUA ACHEBE , THE AFRICAN TRILOGY : THINGS FALL APART , NO LONGER AT EASE, AND ARROW OF GOD 136 (2010).
2 William Armbruster, Africa Road Less Travelled, T HE JOURNAL OF COMMERCE, (Mar. 15, 2010), http://www.joc.com/regulation-policy/africa%E2%80%99s-road-less-travelled_20100315.html (explaining that experts point to the first economic challenge to Africa, which is infrastructure); Glen T. Martin, Freedom, Economic Prosperity, and the Earth Constitution, RADFORD UNIV . (Dec. 2010), http://www.radford.edu/gmartin/Freedom.Economics.CFE.Nov.10.htm.
3 Faajir Avanenge, Effects of Market Infrastructure and Poor Access to Markets on Marketing of Grains in Selected States of Northern Nigeria, West Africa, 9 J. BUS. & RETAIL MGMT . RES. 110, 116–17 (2015) (concluding that there is a significant relationship existing between poor access to markets and marketing of grains in the states north of Nigeria).
4 Armbruster, supra note 2 (“Port congestion and poor roads hamper the development of agriculture,” the sector with the greatest potential for Africa’s economic development, because the continent has the potential to not just feed itself, but to export.); Wangari Maathai, Bottlenecks to Development in Africa, GREEN BELT MOVEMENT (Aug. 30, 1995), http://www.greenbeltmovement.org/wangari-maathai/key-speeches-and-articles/bottleknecks-to-development-in-africa.
5 G.A. Res. 41/128, annex, art. 8, Declaration on the Right to Development (Dec. 4, 1986).
6 Armbruster, supra note 2.
7 Id.
8 U.S. INST. OF P EACE, GOVERNANCE , CORRUPTION, AND CONFLICT, 1, 9, 13, (2016), http://www.usip.org/sites/default/files/ETC-D/NPEC/480021.PDF.
9 Ambe J. Njoh, Impact of Transportation Infrastructure on Development in East Africa and the Indian Ocean Region, 138 J. URB. PLAN . DEV. 1, 1–3 (2012).
10 AARON M. RENN, BEYOND REPAIR ? AMERICA’S INFRASTRUCTURE CRISIS IS LOCAL , 41 MANHATTAN INST. FOR POLICY RES. ISSUE BRIEF 1–2, 5 (2015) (noting that the major
problems are at the local level without federal funding and suggesting that new and regular projects are passed over by cheaper and underfunded methods, which increases the cost of
maintenance over time).
11 Rabah Arezki, Patrick Bolton, Sanjay Peters, Frederic Samama, and Joseph Stiglitz, From Global Savings Glut to Financing Infrastructure: The Advent of Investment Platforms, IMF W ORKING P APER (Feb. 2016), https://www.imf.org/external/pubs/ft/wp/2016/wp1618.pdf.
12 Kelly Mua Kingsley, Infrastructure Development in Fragile Economies Will Foster Better African Integration, AFRICA POL. J. 1, 3 (Apr. 25, 2016), https://apj.fas.harvard.edu/infrastructure-development-in-fragile-economies-will-foster-better-african-integration/.
13 Armbruster, supra note 2.

ABSTRACT

In June of 2015, a young South African girl named Zizipho Pae (“Zizi”), who was the Acting President of the Student Representative Council (“SRC”) of the University of Cape Town (“UCT”) representing a student body of approximately 27,000, posted as follows on her personal Facebook page: “We are institutionalizing and normalising sin. May God have mercy on us.” Even though the post did not say this explicitly, her post was intended as a response to Obergefell v. Hodges. In protest, members of the University’s Queer Revolution broke into her office and, among other things, vandalized it, then took off their clothes, took pictures, and posted them on her Facebook page. They also filed a “hate speech” complaint against her with the University and reportedly also with the South African Human Rights Commission, had her expelled as member of the SRC without proper reasons or process, and almost got her scholarship revoked. The group quickly accomplished all of this despite the fact that there is a cut and dry right to the freedom of speech and expression in the South African Constitution. After requesting the University to review the SRC’s decision to expel her, the Vice-Chancellor of the University reinstated Zizi as member of the SRC because her post was protected by the Constitution. However, what if Zizi had been a student at a university in the United States? Could she be removed, prosecuted, or expelled for her statement on Facebook?

Oliver Wendell Holmes once said, “The best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out.” Freedom of speech has long been a stalwart principle that has kept the United States the most powerful nation in the world, but in recent years, anti-discrimination, harassment, and hate speech codes within public university student handbooks have severely limited students’ freedom of speech and expression and have threatened that foundational freedom. This Note suggests that current case law in the United States is not strong enough or clear enough to protect students’ right to freely exchange beliefs in the free marketplace of ideas because oftentimes university policy will either trump a student’s constitutional right or unconstitutionally punish students for constitutional speech because university administrators are ignorant of the law. This Note also proposes an alternative framework and solution that allows for courts to balance both the university’s authority to limit speech according to legitimate pedagogical concerns and the students’ right to freely express themselves and exchange ideas as they should so see fit. Incorporating a clear framework in student handbooks and in case law that honors this balance according to the law will promote consistency, reliability, and objective analysis by reviewing disciplinary hearing boards and courts, and will ultimately ensure an appropriate balance between the freedom of speech and university interests.

INTRODUCTION

In response to a United States Supreme Court case, 1 a young South African girl named Zizi Pae posted a thought on her Facebook wall just like she did most every other day: “We are institutionalizing and normalizing sin! . . . May God have mercy on us.”2 Then, June 28, 2015 turned into a quite unordinary day for her. Zizi was the acting President of the Student Representative Council (“SRC”) of a student body of almost 27,000. 3 A few hours after she posted, her office was broken into by members of the campus group Queer Revolution, 4 had her Scriptures ripped off the walls,5 and had semi-naked pictures of the members in her office posted on her Facebook page with the caption “[We are] [b]ringing sin into the Holy SRC [office] of Zizipho Pae.”6

The University of Cape Town Queer Revolution (“UCTQR”) demanded Zizi’s resignation “on account of her queer antagonistic bigotry,” 7 so the SRC immediately removed her from her presidential duties and then attempted to hold a formal hearing on the matter.8 The hearing unfortunately dissolved into a shouting match at which members of the Lesbian, Gay, Bisexual, and Transgender Plus (LGBT+) community took their clothes off and commanded the chairman to rule in their favor,9 so the chairman adjourned the meeting and left the room. Unabated, the remaining members quickly replaced him with a newly elected chairman, and the members voted to dismiss Zizi from the SRC without following proper due process procedures and without giving her a chance to testify on her behalf according to those same procedures. 10 The UCTQR immediately filed a complaint against her with the Human Rights Commission,11 and a lobbying push began with the goal of seeing Zizi lose her scholarships to the university. 12 She was called an “idiot,” a “homophobe,” an “ignorant b****”,13 and received hundreds of hate mail messages in her Facebook inbox. 14 Then a Member of Parliament, Mr. Marius Redelinghuys, began to speak out against her and demand that she retract her statement through “a long series of mocking, insulting and other pro-homosexual messages which amount[ed] to harassment.” 15

†B.A. 2011, Furman University; J.D. 2017, Regent University School of Law.
1 Michael Gryboski, ‘May God Have Mercy on Us,’ Says Christian Cape Town Student Forced Out of Leadership Role for Facebook Comment Opposing Gay Marriage, CP WORLD (July 28, 2015), http://www.christianpost.com/news/may-god-have-mercy-on-us-says-christian-cape-town-student-forced-out-of-leadership-role-for-facebook-comment-
opposing-gay-marriage-142005/. Obergefell v. Hodges, 135 S. Ct. 2584, 2619, 2642–43 (2015), legalized same-sex marriage within all jurisdictions in the United States.
2 Zizipho Pae, FACEBOOK (June 28, 2015), https://www.facebook.com/zizipho.maduna/posts/1146044868755871.
3 Statistics, U NIV . OF CAPE T OWN, http://www.uct.ac.za/about/intro/statistics/ (last visited Dec. 22, 2015) (noting the total number of students enrolled as of 2014).
4 UCT Student Leader Victimised Over Christian Viewpoint on Same-Sex Marriage, GATEWAY N EWS (July 2, 2015), http://gatewaynews.co.za/uct-student-leader-victimised-over-christian-viewpoint/.
5 Christian Student Threatened for Opposing Gay Marriage on Facebook,
CHRISTIAN INST. (July 16, 2015), http://www.exministries.com/christian-student-threatened-for-opposing-gay-marriage-on-facebook/.
6 Ra’eesa Pather, UCT Queer Community Sets Its Sights on Pae, THE DAILY VOX (July 3, 2015), http://www.thedailyvox.co.za/uct-the-queer-movement-has-been-born/; see Carlo Petersen, UCT Homophobe Gets Booted Out, IOL CAPE TIMES (July 23, 2015), http://sbeta.iol.co.za/capetimes/uct-homophobe-gets-booted-out-1889325.
7 Id.
8 UCT SRC, FACEBOOK (June 30, 2015), https://www.facebook.com/uct.src/photos/a.905100332874551.1073741833.895318217186096/94797093525417/.
9 Freedom of Religion S. Afr., My Story by Zizipho Pae-Part II, Y OUT UBE (Aug. 11, 2015), https://www.youtube.com/watch?v=HTMuJJlIrTY [hereinafter FORSA].
10 UCT SRC, SRC Minutes from the 21st of July 2015, F ACEBOOK (July 21, 2015), https://www.facebook.com/uct.src/photos/a.962140463837204.1073741838.895318217186096/962140477170536/?type=3&theater.
11 Carlo Petersen, UCT Homophobe Gets Booted Out, IOL C APE T IMES (July 23, 2015), http://sbeta.iol.co.za/capetimes/uct-homophobe-gets-booted-out-1889325.
12 Pather, supra note 6.
13 Andre Viljoen, Christian Leaders Speak Out Against Victimisation of “Expelled” UCT Student Leader, GATEWAY NEWS (July 23, 2015), http://gatewaynews.co.za/christian-leaders-speak-out-against-victimisation-of-uct-student-leader/.
14 Freedom of Religion S. Africa, supra note 9.
15 Carlo Petersen, DA MP’s Comments ‘Unacceptable’, IOL CAPE T OWN (July 28, 2015, 2:23 PM), http://sbeta.iol.co.za/news/politics/da-mp-s-comments-unacceptable-1891827.

ABSTRACT

This Article examines the theoretical and historical contexts, the applicable law and the practice of the International Criminal Court (ICC) to establish whether activist interpretation features in judicial decision-making of the court. The Article argues that the high level of detail in the normative framework of the court does not address activist judicial practice as was anticipated by the creators of the court. Influenced by the interpretive culture of the foregoing tribunals where normative realities were starkly different, judicial interpretation at the ICC nonetheless experiences similar activist tendencies that may defy the established legislative polices of the court and the principle of legality. It argues that the incoherent interpretive practice allows the judges to express their idiosyncratic understanding of law in a way that may be inconsistent with the policies previously announced by the states parties to the Rome Statute and the court’s legislative authority –the Assembly of States Parties. The Article concludes that consistent and sound interpretive methodology is wanting for the court to be able to effectively adhere to the principle of legality.

INTRODUCTION

The creation of the modern international criminal courts triggered an active process of development of international criminal law and its institutions. Having started as a handful of customary legal rules, international criminal law has developed through the jurisprudence of these courts into a comprehensive body of positive law that today is largely reflected in the Rome Statute of the permanent International Criminal Court (ICC).

The judicial process in the early ad hoc tribunals took course under assumption of discoverability of ex ante specific components of international crimes, and of specific norms of international criminal law in general. 1 These cryptic norms were assumed to have existed in their latent form in either international custom or principles of law and only needed to be actively discovered by the judges. A wide range of interpretive methods – from the postulates of the Vienna Convention on the Law of Treaties to fundamental values of humanity – was employed for that purpose. 2 The interpretive processes at the ad hoc tribunals, such as the International Criminal Tribunal for Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), showed that in the context of customary international law the line between creation and discovery of law is hard to detect.3 This ambiguity resulted in concerns of subjecting the entire process of legal development to the individual vision of a judge. The resulted expansion of the normative body of international criminal law sparked a vigorous debate about the age-old dilemma of relationship between a judge and the law, translating the debate into the international criminal law context.4 The vigour of progressive jurisprudence of the ad hoc criminal tribunals raised many questions vis-à-vis judge-made law, its legitimacy at the arena of international criminal justice, and the boundaries to which the practice of expansive interpretation is permissible to extend without offending the principle of legality.

The common law tradition that greatly influenced all international criminal courts has a long history of debate on judicial discretion. In the twentieth century, American legal scholarship labelled certain age-old progressive practices of judicial freedom in interpretation of law as judicial activism. The practice of activist judging may have expanded to ad hoc international criminal tribunals drawing on both the courts’ common law parentage and the nature of the international legal order with its decentralised legal architecture and the absence of legislative authority. The lack of normative clarity and complex realities in which ad hoc tribunals had to operate pleaded in justification of the progressive developments of law at these international courts.

Unlike the ad hoc tribunals, the ICC is equipped with a well-prepared and detailed set of comprehensive positive rules – the Rome Statute (the court’s creating treaty), the Rules of Procedure and Evidence, the Elements of Crimes and other instruments. The normative reality of the ICC significantly limits the space for the progressive development of international criminal law through limiting the interpretive freedom of the judges and their capacity to actively develop applicable criminal law. The Rome Statute, in addition to supplying the judges with a codification of substantive and procedural norms, provides for interpretive guidelines mainly expressed through its articles 21 and 22.5 In turn, the structure of the court provides for the legislative authority assumed by the states parties to the Rome Statute and their Assembly (ASP). This further limits the judicial function by clearly distinguishing it from the legislative mandate. These normative and structural changes may have been intended to limit the role of the judges in the law-making processes.6 However, the incoherent interpretive practice may allow the judges to express their personal understanding of even the most detailed law in a way that may be inconsistent with the pre-announced policies. A judge may invoke a particular interpretive canon to yield a desired outcome in his decision, rather than be guided by the law in light of consistent methodological reasoning.7 In the absence of clear interpretive methodology, the ICC might run the risk of continuing the inertia of activist judging that gained momentum at the ad hoc tribunals. At the expense of the principle of legality, such practice may establish a similar culture of expansive judicial interpretation that defies established policies expressed in the codified law of the court.

The main objective of this Article is to examine the theoretical and historical contexts, the applicable law, and the practice of the ICC to establish whether activist interpretation features in the judicial decision-making of the court. For that purpose, this Article provides for a theoretical discussion of the concept of judicial activism and the related interpretive phenomena. It then uses the theoretical findings to analyse the context in which the early ad hoc international criminal tribunals operated. This Article argues that the ad hoc tribunals developed a culture of activist interpretation of law that subsequently emerged at the ICC despite its structural differences. This Article considers whether the legal architecture of the ICC with its high level of normativity and textual clarity helps abate the judicial interpretive function by subjecting it to the principle of legality and whether the interpretive rules as applied by the court are adequate to address activist judging. To reveal the activist tendencies in the work of the ICC, this Article considers a number of examples from the practice of the court that in the opinion of the author are most illustrative of the activist tendencies.

I. DECONSTRUCTING JUDICIAL ACTIVISM

The term “judicial activism” first appeared in legal parlance in January 1947, when Arthur Schlesinger Jr. introduced it in his article in a popular Fortune magazine intended for a very general audience.8 An American historian and a social critic, Schlesinger profiled the then judges of the United States Supreme Court.9 He articulated the divisions among the judges by highlighting the differences among them in their perception of the judicial role.10 Schlesinger discerned two main groups, characterizing one group as being “judicial activists,” and the other as the “champions of self-restraint.”11 Judicially active judges, as portrayed by Schlesinger, are those who, being aware of the ambiguous range of law and believing in inseparability of law and politics, move the policy concerns and social results to the front in the exercise of their judicial power. The champions of self-restraint, on the other hand, believe that the meaning of the law is fixed. Deviation from the fixed meaning is inappropriate even in cases where the legislator made a clear mistake in law, in which situation the remedy must be left to the legislator.12 By extrapolating his “judicial activism” and “self-restraint,” Schlesinger reminded his audience of the fundamental formalist-realist philosophical dilemma of judicial discretion in the context of the doctrine of separation of powers and legal decision-making within the doctrine.13