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New staff elected to Volume 36

Washington, D.C. – The American University International Law Review is pleased to announce the 2020 new staff members. This year’s candidates were the best and brightest yet. Welcome to the AUILR family, Junior Staffers!

Housed at the Washington College of Law, the American University International Law Review is one of the top 25 most cited International Law journals in the nation.

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RELEASE: Call for Papers

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CALL FOR PAPERS: 

Multilateralism, International Organizations, and the Global Response to COVID-19

The American University International Law Review (AUILR) is now accepting article submissions on topics for online publication related to international law and international organizations’ responses to global pandemics, including and especially COVID-19. In light of the current global trend shifting toward more nationalistic and authoritarian approaches in responding to the current public health crisis, AUILR is specifically seeking articles that explore the importance of multilateralism during global pandemics. In this respect, we seek original contributions by academics and practitioners demonstrating why the work of International Organizations (WTO, WHO, UN, EU, AU, OAS), Supranational and International Courts, Transnational Non-Governmental Organization, or other expert networks is essential in global responses in worldwide health crises.

While AUILR considers submissions of varying lengths and styles on topics ranging from extensive treatment of specific international legal topics to broader discussions of international legal issues, we are currently seeking to publish articles of roughly 1,000-1,500 words that provide timely and original legal analysis. Additionally, AUILR encourages scholarship that is understandable to those unfamiliar with the topic and is supported by responsive and authoritative endnotes. The citation format should conform to The Bluebook: A Uniform System of Citation (20th ed. 2015). Following the acceptance and editing process of submitted articles, which will be handled entirely by the AUILR staff, AUILR will publish the work on www.auilrblog.com as part of its re-launch. 

The most recent U.S. News and World Report ranked American University Washington College of Law (AUWCL) as a Top-5 International Law program in the nation, tied for fourth place with Yale and Columbia Law School. AUILR is one of the twenty-five most frequently cited international and comparative student law reviews in the United States. AUILR proudly shares a special relationship with the Washington College of Law’s prestigious faculty of the International and Comparative Legal Studies Program and the world-renowned Academy on Human Rights and Humanitarian Law.  The Journal also annually publishes a unique bilingual collection of English- and Spanish-language scholarship on timely issues related to the proceedings of the Academy on Human Rights and Humanitarian Law. Furthermore, AUILR collaborates with the American Society of International Law (ASIL), which gives the Journal the privilege of annually publishing the Grotius Lecture and Response from ASIL’s Annual Meeting.

AUILR encourages legal practitioners and scholars to submit their work for potential publication and direct questions to the Digital Articles Editor at the contact information below.

We look forward to working with you and welcome you to let us be the platform for your ideas.

Sincerely,

Emma Kenyon

Digital Articles Editor

American University International Law Review 

Email: ilr-digit@wcl.american.edu

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COVID-19 has hit Haiti, too

by DeVaughn Jones*

“We have no protections whatsoever. We’re in God’s hands.” – A Haitian woman[1]

Americans have admirably mobilized to protect our most vulnerable people from the shocking spread of COVID-19. As we increase those efforts over these next few weeks, we must remember to include the most vulnerable geographic neighbors[2] we have:

Haitians.

Around 11.5 million people live in Haiti,[3] and most of them live in extreme poverty; around 4.5 million Haitians were at risk of dying of starvation before Coronavirus was an issue.[4] Almost all Haitians are also “highly vulnerable” to natural disaster.[5] They are prematurely aged by their environment. Malnutrition, poor hygiene, and unreliable shelter make Haitians physiologically older than non-Haitians who have lived the same number of years.[6] There are approximately 300,000 HIV/AIDS positive Haitians, many of whom are incarcerated in prisons so overcrowded that they are described as “inhumane.”[7] This uniquely hostile environment renders the Haitian people less disease-resistant and dramatically increases their odds of dying from sicknesses that are non-fatal everywhere else.[8]

The Haitian public health system is not equipped to address such dramatic health issues. Recent surveys counted only 124 ICU beds in Haiti; less than seventy of these beds supported patient ventilation, and outside the ICUs, that number dropped to less than ten.[9] Further, there is a severe shortage of health workers, including doctors and nurses, and there are gaps in services across all levels of the Haitian healthcare system.[10] It is hard to imagine a more inviting environment for an infectious disease to unforgivingly spread. [11]

Now that COVID-19 is already in Haiti,[12] its effects will be compounded by Haitians’ physiological vulnerability. Haitians’ social response is also problematic; most Haitians are either unaware of COVID-19 or do not trust foreign reports about it.[13] Unchecked, this global crisis will have uniquely tragic effects in Haiti. At minimum, the world must be aware of that. Moving forward, the United States should immediately and aggressively provide COVID-19 prevention and treatment.

The United States is a leading party in the global commitment to “prevent, protect against, [and] provide a public health response to the international spread of disease.”[14] USAID’s $62 million commitment to combat third-world COVID-19 outbreaks is a good start.[15] In the interest of speed and efficiency, we may consider temporarily relaxing or suspending existing restrictions on sending aid funds to Haiti.[16] Afterward, we can continue to support our ongoing agreements to modernize global public health infrastructure on a global scale.[17]

In the meantime, COVID-19 should be fought in communities where it will hurt the worst. Scientifically, legally, and morally – this is the right thing for a global leader to do. There is no time to waste.[18]

*DeVaughn Jones is a second year law student at Washington College of Law at American University. He is a staff member of the American University International Law Review.


[1] LeMaire et al., infra note 13.

[2] Compare Recommended Travel Mode from Washington, DC to Miami, Google Maps, https://www.google.com/maps/dir/Washington+D.C.,+DC/Miami,+FL/@32.0134525,-88.3682513,5z/data=!3m1!4b1!4m13!4m12!1m5!1m1!1s0x89b7c6de5af6e45b:0xc2524522d4885d2a!2m2!1d-77.0368707!2d38.9071923!1m5!1m1!1s0x88d9b0a20ec8c111:0xff96f271ddad4f65!2m2!1d-80.1917902!2d25.7616798 (1053 miles), with Recommended Travel Mode from Haiti to Miami, Google Maps, https://www.google.com/maps/dir/Haiti/Miami,+FL/@22.304344,-80.7351579,6z/data=!3m1!4b1!4m13!4m12!1m5!1m1!1s0x8eb6c6f37fcbbb11:0xb51438b24c54f6d3!2m2!1d-72.285215!2d18.971187!1m5!1m1!1s0x88d9b0a20ec8c111:0xff96f271ddad4f65!2m2!1d-80.1917902!2d25.7616798 (Haiti is about 400 miles closer to Miami than Washington, DC).

[3] Haiti Population 2020, World Population Review, https://worldpopulationreview.com/countries/haiti-population/ (last visited Mar. 22, 2020).

[4] See The World Bank Group, infra note 5 (more than half of Haitians live on less than $2.41 USD per day, and more than one-fifth live on less than $1.23 per day); seealso John Carroll, Haiti and Coronavirus – Can You Imagine?, Dispatches From Haiti (Feb. 27, 2020), http://blogs.pjstar.com/haiti/2020/02/27/haiti-and-coronavirus-can-you-imagine/ (stating that 4.5 million Haitians are “predicted to be on the verge of starvation”).

[5] The World Bank Group, Overview, The World Bank in Haiti,https://www.worldbank.org/en/country/haiti/overview#1 (last visited Mar. 22, 2020) (“More than 96% of the population is exposed to . . . natural hazards.”).

[6] SeePhysiological Age, Medical Dictionary,https://medical-dictionary.thefreedictionary.com/physiological+age (“The relative age of a person, especially when comparing that individual’s physical status with those of other persons of the same chronological age.”).

[7] See U.S. Dep’t of State, Office of the U.S. Glob. AIDS Coordinator and Health Diplomacy, Haiti Country Operational Plan (COP) 2019 Strategic Direction Summary 6 (Jun. 11, 2019) [hereinafter, 2019 Haiti COP] (“Haiti has a national HIV/AIDS prevalence of 2.7%, with higher prevalence in major cities and among men who have sex with men . . . female sex workers . . . and prison populations.”); Teresa Bo, Haiti Prisons: Overcrowding a Major Problem, Al Jazeera (Jan. 5, 2018), https://www.aljazeera.com/news/2018/01/haiti-prisons-overcrowding-major-problem-180105130018827.html (“Haiti has some of the most overcrowded prisons in the world…around 11,000 inmates live in inhumane conditions.”); Dep’t of Justice, Exec. Office for Immigration Review, Haiti 2018 Human Rights Report 4 (2018) (“Most [inmates] died from starvation, anemia brought on by malnutrition, tuberculosis, or other communicable diseases.”).

[8] Arachu Castro et al., Infectious Disease in Haiti, 4 EMBO Rep. (2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1326436/pdf/4-embor844.pdf (discussing how systemic poverty in Haiti “predisposes [Haitians] to pathogenic vulnerability by shaping the risk of infection and subsequent disease reactivation”).

[9] Lia Losonczy et al., Critical Care Capacity in Haiti: A Nationwide Cross-Sectional Survey, 14 PLOS One 2 (2019).

[10] 2019 Haiti COP, supra note 7, at 6.

[11] See Castro et al., supra note 8 (explaining how “[t]he social contexts in which…patients bec[o]me infected,” are integral to determining how bad an infection will be); see also Kavita Vinekar et al., Hospitalizations and Deaths Because of Respiratory and Diarrheal Diseases Among Haitian Children Under Five Years of Age, 2011–2013, Pediatric Infectious Disease J. (Oct. 1, 2016) (“Respiratory and diarrheal diseases contributed to more than half of hospitalizations and almost a third of deaths in children younger than 5 years in Haiti.”). Compare, e.g., Harvard Medical School, Coronavirus Resource Center, As Coronavirus Spreads, Many Questions and Some Answers  (last updated Mar. 20, 2020),https://www.health.harvard.edu/diseases-and-conditions/coronavirus-resource-center (stating that Coronavirus hosts with underlying conditions such as AIDS have a higher chance of developing deadly pneumonia), with 2019 Haiti COP, supra note 7, at 6 (Haitian HIV/AIDs prevalence is around 3% of the total population).

[12] Jovenel Moise, President of Haiti, Adresse a la Nation du President Jovenel Moise / Coronavirus [President Jovenel Moise’s Address to the Nation / Coronavirus], YouTube (Mar. 19, 2020), https://www.youtube.com/watch?v=DX2oATBSeyY (confirming two Coronavirus cases in Haiti).

[13] Sandra Lemaire et al., Conspiracy Theories, Misinformation Abound as Haitians Brace for Coronavirus, VOA News (Mar. 13, 2020),https://www.voanews.com/science-health/coronavirus-outbreak/conspiracy-theories-misinformation-abound-haitians-brace (describing Haitians as “woefully uninformed” about Coronavirus).

[14] World Health Org., International Health Regulations (2005) 10 (2nd ed. 2008);Revision of the International Health Regulations, Rep. of the World Health Assembly on Its Fifty-Eighth Session, 14, U.N. Doc. No. WHA58/2005/REC/1 (2005).

[15] Press Release, Mark Green, USAID Adm’r, Statement on a Second Funding Tranche of $62 Million in Assistance to Respond to the Pandemic of COVID-19 (Mar. 18, 2020),https://www.usaid.gov/news-information/press-releases/mar-18-2020-statement-administrator-green-second-funding-tranche-62.

[16] See generally USAID, FAQ on USAID Funding in Haiti,https://www.usaid.gov/faq-usaid-funding-haiti, (last visited Mar. 22, 2020) (providing background on the existing, and stringent, regulatory framework that controls aid funding sent from USAID to Haiti).

[17] See USAID, USAID/HAITI Strategic Framework 2018-2020 3 (2018) (“All of USAID/Haiti’s programs will reflect our Administrator’s organizing principle that the purpose of foreign assistance should be ending its need to exist.”); see also International Health Regulations, supra note 14.

[18] Bill Gates, How to Respond to COVID-19, GatesNotes (Feb. 28, 2020),  https://www.gatesnotes.com/Health/How-to-respond-to-COVID-19.

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U.S. News and World Report Rank WCL International Law Top Five in Nation

Washington, D.C. — Earlier this week, U.S. News and World Report ranked Washington College of Law at American University a top 5 International Law program. Tying with contemporaries at Columbia and Yale, the WCL International Law program leads within the nation.

Sherwet Witherington, AUILR’s incoming Editor-in-Chief reflects, “The international student body at WCL is unparalleled in its value and its importance in the practice of law. The word ‘international’ evokes broader horizons, unique perspectives, and an appreciation for others, their cultures, and their laws. WCL isn’t just looking for the best students, it has the students who manifest the most diverse experiences, and by association their outlooks. AUILR has always been a meaningful avenue to reflect the fantastic international academic community at WCL and will continue to do so with enthusiasm and pride.” 

As a proud partner with this esteemed program, AUILR congratulates WCL IL and looks forward to many more exciting years of #thinkingglobally. You can find the full list here.

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Vol. 35, Issue 2 is now available!

Washington, D.C. — American University International Law Review has published Volume 35, Issue 2. This issue discusses timely subjects including trademark law, youth justice, and the hallmark Academy on Human Rights and Humanitarian Human Rights Award. Issue 2 is available for PDF download here.

AUILR is one of the top 10 most downloaded International Law reviews in the nation and a proud partner of the American University International Law program.

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Making the Case for Amazon

MAKING THE CASE FOR AMAZON

Kaylynn Noethlich*

“The Case Against Amazon” is a familiar phrase that dominates headlines and underpins popular political platforms.[i] Yet, not long ago, and arguably still today, Amazon was the poster child of consumer benefits – consistently bringing more products at lower prices through innovative delivery methods to consumers across the globe. Above all else, Amazon’s marketplace gave consumers unprecedented choice. Today, consumers are frequently presented with over 10,000 options when ordering a product — spanning across brands, prices, and colors — when previously they had to choose from the select few a store carried.[ii]

Despite the benefits consumers continue to enjoy from using Amazon’s marketplace, antitrust authorities in the U.S. and the E.U. have publicly opened investigations into the company.[iii] Both countries’ authorities traditionally use the “consumer welfare” standard when evaluating the competitive harm in a marketplace — meaning the focus is on the ultimate harm and loss of welfare to consumers, not competitors.[iv] Thus, the announcement of an investigation into Amazon immediately raised the question — are consumers really being harmed?

According to the European Commission (E.C.), its investigation targets the standard agreements between Amazon and marketplace sellers with a focus on whether Amazon misuses third-party seller data from its marketplace to negatively impact competition.[v] Essentially, the E.C. alleges that Amazon collects large quantities of data on its marketplace enabling it to predict which products are in high demand. Because Amazon is both a retailer (it sells its own products on the marketplace) and the owner of the marketplace, Amazon has the ability to use its data analysis to create products that perform well, sell them at a lower price, and ultimately drive out any competitors.[vi] Unlike the E.C., U.S. antitrust authorities do not publicly reveal reasons for their investigations. However, experts contend that the U.S. Federal Trade Commission is investigating under a similar theory.[vii]

Although politicians, investigators, and reporters appear united in making the case against Amazon, this article makes the case for Amazon.[viii]

Amazon does not have the requisite monopoly power.

Both the U.S. and the E.U. have laws preventing the abuse of a dominant position in a given marketplace. In order to have a “dominant position” in a market, a company typically must comprise at least 30% – 40% of the relevant market and have monopolistic power that is “durable rather than fleeting.”[ix]

There are many alternative sources for the products that Amazon sells, for instance Walmart. Indeed, Walmart’s lower prices and wider range of products was once viewed as the end of small business.[x] Although public perception often paints Amazon as the biggest retailer player today, Walmart is still more than double Amazon’s size as a general retailer.[xi] Numerous other retailers dwarf Amazon in discrete product categories in which Amazon competes. Even on its own marketplace, Amazon has been surpassed by third-party retailers which account for approximately 58% of Amazon’s retail unit sales.[xii]

Although it can be argued Amazon’s position in particular retail categories, such as books, music, and videos, meets the level of monopolistic power, Amazon operating as a general retailer on its marketplace alongside third-party retailers does not.[xiii]

Amazon is not raising rivals’ costs by denying access to an “essential facility.”

Amazon operates as an open marketplace to large and small retailers alike. Amazon developed a standard pricing model to access its marketplace — for low volume sellers Amazon receives $0.99 for each product sold and professional sellers pay $39.99 a month, both responsible for any selling fees.[xiv] Amazon allows third-party retailers to compete in various product categories, some requiring approval (such as refurbished products), not singling out product markets Amazon most successfully competes in.[xv] The exception to this rule includes: (1) items often counterfeited; (2) items easily stolen from retail stores; (3) brands that do not want the perceived value decreased; and (4) brands sold exclusively elsewhere.[xvi] Additionally, when a seller (or rival) is removed, Amazon provides the seller 30-days-notice for removing the seller along with a formal reason explaining the removal.[xvii]

Moreover, 80% of Amazon merchants also sell their products through other channels, including Walmart, retailer owned websites, eBay, Jet, and other brick-and-mortar stores.[xviii] Amazon represents only a single platform among a multitude available to professional sellers, not a singular controlled essential facility.

Even if Amazon did deny access to an “essential facility” they do not have power over price.

Amazon offers private label products within its marketplace at a lower price, as many retailers often do.[xix] Grocery stores typically carry store-branded products, similar to how pharmacies carry generic medication identical to popular brands. Offering private label products to match branded products is not a new phenomenon. Moreover, offering private label products at lower prices and with better shelf placement is commonplace.[xx]

To make a convincing argument that Amazon has power over price one would need to promulgate the specious theory that private-label products have power over branded-product pricing. Private label products typically peg prices to a non-public percentage of branded products (e.g., CVS selling its private-label goods at a 30% mark-down compared to branded drugs). Because companies rarely advertise their private-label products and have complete control over shelf-placement, it allows them to sell these products at a lower price than branded products. Additionally, consumers will often fall into the categories of “price sensitive” or “non-price sensitive” and “brand sensitive” or “non-brand sensitive.” These categories allow both brands and private-label products to successfully sell at different price points.[xxi] This is Amazon’s marketplace strategy.

Even if none of the above is true, Amazon offers immense benefits to consumers and there is no harm.

U.S. and E.U. antitrust laws diverge on this point. If Amazon possesses a “dominant position” in the E.U., it has a “special responsibility” to “ensure that its conduct does not distort competition.”[xxii] Meaning, if any of the above is true, then Amazon’s consumer benefits likely will not offset its special responsibility in the marketplace because of distortions to competition through increased costs to rivals.[xxiii]

Although no “special responsibility” exists in U.S. antitrust law, a dominant player merely has a duty not to abuse their dominant position, which results in a determinant to the competitive marketplace and ultimately consumers. Pinpointing the ultimate harm to consumers proves difficult because Amazon provides its customers with a wide array of choice, quality, prices, and innovative delivery methods. Concluding Amazon violated antitrust laws would likely require antitrust authorities to look beyond the traditional consumer welfare standard and create uncertainty moving forward for companies facing antitrust scrutiny.

 

____________________________________________________________________________________________

* J.D. Candidate, May 2020, American University Washington College of Law; B.B.A., Economics, 2017, Drake University. Kaylynn Noethlich previously worked at the Department of Justice Antitrust Division and the Federal Trade Commission as a legal intern, in addition to Freshfields Bruckhaus Deringer as a summer associate in their Antitrust & Competition group in London and D.C.

[i] See generally Simon Van Dorpe, The Case Against Amazon, POLITICO (Mar. 4, 2019, 1:14 AM CET), https://www.politico.eu/article/amazon-europe-competition-giveth-and-amazon-taketh-away/ (discussing the EC’s investigation in Amazon’s agreements with retailers); Jack Kelly, Senator Elizabeth Warren Says ‘It’s Time To Break Up Amazon, Google And Facebook’— And Facebook CEO Mark Zuckerberg Fights Back, Forbes (Oct. 2, 2019, 10:43 AM), https://www.forbes.com/sites/jackkelly/2019/10/02/senator-elizabeth-warren-says-its-time-to-break-up-amazon-google-and-facebook-and-facebook-ceo-mark-zuckerberg-fights-back/#456a1cef6791 (highlighting presidential candidate Elizabeth Warren’s position on “big tech”); Madeleine Joung, Google, Amazon, Facebook and Apple Could Face Antitrust Investigations. How Do Those Work?, Time: Politics (June 5, 2019), https://time.com/5601245/google-amazon-facebook-apple-antitrust/ (comparing today’s antitrust investigations to the 2000 Microsoft era cases); see also Lina M. Khan, Amazon’s Antitrust Paradox, 126 Yale L. J. 710 (2016) (arguing the current antitrust framework is unequipped to handle the competition challenges in the modern economy).

[ii] See, e.g., Search Results from Amazon for a “Suitcase,” Amazon Italy, http://www.amazon.it (type in general search bar “suitcase”; then look to the left of the page above the products listings to see the number of search results); Search Results from Amazon for a “Suitcase,” Amazon United States, http://www.amazon.com (type in general search bar “carry-on suitcase”; then look to the left of the page above the products listings to see the number of search results).

[iii] Eur. Comm’n Press Release IP/19/4291, Antitrust: Commission opens investigation into possible anti-competitive conduct of Amazon (July 17, 2019), https://europa.eu/rapid/press-release_IP-19-4291_en.htm.

[iv] See Svend Albæk, Consumer Welfare in EU Competition Policy, in Aims and Values in Competition Policy 67, 68 (Ulla Neergaard & Christian Bergqvist eds., 2013), https://ec.europa.eu/dgs/competition/economist/consumer_welfare_2013_en.pdf (“Vice-President Almunia said in a speech shortly after he was nominated commissioner in charge of competition policy that ‘[a]ll of us here today know very well what our ultimate objective is: Competition policy is a tool at the service of consumers. Consumer welfare is at the heart of our policy and its achievement drives our priorities and guides our decisions.”); Russell Pittman, Consumer Surplus as the Appropriate Standard for Antitrust Enforcement, Economic Analysis Group Discussion Paper, June 2017, https://www.justice.gov/sites/default/files/atr/legacy/2007/09/28/225696.pdf.

[v] Eur. Comm’n Press Release IP/19/4291, Antitrust: Commission opens investigation into possible anti-competitive conduct of Amazon (July 17, 2019), https://europa.eu/rapid/press-release_IP-19-4291_en.htm.

[vi] Hypothetical example: Amazon sees a spike in demand for Swell water bottles. It then creates a nearly identical version of the water bottle and sells it under a private label brand at a much lower price, hoping consumers switch from Swell water bottles and start buying Amazon’s private label product.

[vii] Samuel R. Miller, Is Amazon Violating the Antitrust Laws?, Verdict: Justia (July 25, 2019), https://verdict.justia.com/2019/07/25/is-amazon-violating-the-antitrust-laws.

[viii] Although there are several theories of harm surrounding multiple Amazon practices, this article will only focus on the allegations of Amazon’s misuse of third-party retailer data.

[ix] U.S. Dep’t of Justice, Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act, at 5 (2008), https://www.justice.gov/sites/default/files/atr/legacy/2008/09/12/236681_chapter1.pdf (“Section 2 of the Sherman Act makes it unlawful for any person to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations . . . .”); Eur. Comm’n, Competition: Antitrust Procedures in Abuse of Dominance (July 2013), https://ec.europa.eu/competition/publications/factsheets/antitrust_procedures_102_en.pdf (“Article 102 of the Treaty on the Functioning of the European Union (TFEU) prohibits abusive conduct by companies that have a dominant position on a particular market.”).

[x] Kate Taylor, Walmart Destroyed Retail, Bus. Insider (Aug. 15, 2016, 10:25 PM), https://www.businessinsider.com/walmart-destroyed-retail-2016-8?IR=T.

[xi] See Amazon vs Walmart – Revenues and Profits Comparison 1999-2018, MGM Research (2018), https://mgmresearch.com/amazon-vs-walmart-revenues-and-profits-comparison-1999-2018/ (reporting $514 billion in revenue for Walmart and $233 billion for Amazon in 2018).

[xii] Andrew Martins, Amazon Announces Changes for Third-Party Sellers in Response to EU Oversight Threat, Bus News Daily: Tech. (July 17, 2019, 1:05 PM), https://www.businessnewsdaily.com/15212-amazon-changes-for-third-party-sellers.html.

[xiii] See Matt Day & Jackie Gu, The Enormous Numbers Behind Amazon’s Market Reach, Bloomberg (Mar. 27, 2019), https://www.bloomberg.com/graphics/2019-amazon-reach-across-markets/ (reporting Amazon’s e-commerce market share in the category of “books, music, video” is 80%); see also Marc Bain, Amazon’s unruly third-party marketplace now sells more stuff than Amazon itself, Quartz: Letters from Bezos (Apr. 19, 2018), https://qz.com/1256651/amazon-marketplace-sold-more-stuff-than-amazon-itself-in-2017/ (noting more than half of the products sold on Amazon’s marketplace are now third-party retailers).

[xiv] Sell on Amazon: Benefits, Amazon Services (last visited Oct. 25, 2019) https://services.amazon.com/selling/benefits.html.

[xv] Sell on Amazon: Categories, Amazon Services (last visited Oct. 25, 2019), https://services.amazon.com/services/soa-approval-category.html.

[xvi] The Known Brands That Are Not Allowed to be Sold by Amazon Third Party Sellers, The Selling Family (last visited Oct. 20, 2019), https://thesellingfamily.com/the-known-brands-that-are-not-allowed-to-be-sold-by-amazon-third-party-sellers/.

[xvii] Andrew Martins, Amazon Announces Changes for Third-Party Sellers in Response to EU Oversight Threat, Bus News Daily: Tech. (July 17, 2019, 1:05 PM), https://www.businessnewsdaily.com/15212-amazon-changes-for-third-party-sellers.html.

[xviii] Rani Molla & Jason Del Rey, A Fifth of Professional Amazon Merchants Sell More Than $1 Million a Year – Double The Share from Last Year, Vox: Recode (May 23, 2018, 4:02 PM), https://www.vox.com/2018/5/23/17380088/amazon-sellers-survey-third-party-marketplace-walmart-ebay.

[xix] Simon Van Dorpe, The Case Against Amazon, POLITICO (Mar. 4, 2019, 1:14 AM CET), https://www.politico.eu/article/amazon-europe-competition-giveth-and-amazon-taketh-away/.

[xx] Private Label Manufacturers Association International Council, World of Private Label: Industry News (2019), https://www.plmainternational.com/industry-news/private-label-today (outlining the growth of market share for private-label products).

[xxi] John Quelch & David Harding, Brands Versus Private Labels: Fighting to Win, Harv. Bus. Rev.: Marketing (Jan. 1996), https://hbr.org/1996/01/brands-versus-private-labels-fighting-to-win (claiming manufacturers of brand-name products can temper any challenge posed by private-label goods).

 [xxii] Eur. Comm’n, Competition: Antitrust Procedures in Abuse of Dominance (July 2013), https://ec.europa.eu/competition/publications/factsheets/antitrust_procedures_102_en.pdf (“Article 102 of the Treaty on the Functioning of the European Union (TFEU) prohibits abusive conduct by companies that have a dominant position on a particular market.”).

[xxiii] Id.

ELECTION 2016: Breaking Down Donald Trump’s Foreign Policy

By Nick Laneville

November 1, 2016

Throughout his campaign to be the next President of the United States, Donald Trump has expressed a range of views on foreign policy.  Issues that have been particularly pronounced in his rhetoric in this area are those of collective security, immigration, and trade.  This blog post will attempt to explain his positions on those issues, and, where possible, envisage the outcomes of his policy decisions if they were to be enacted.

Donald Trump speaks at a rally in Iowa.  Photo Courtesy of DonaldJTrump.com.
Donald Trump speaks at a rally in Iowa. Photo Courtesy of DonaldJTrump.com.

Collective security

Donald Trump has expressed serious discontent with the manner in which the United States and its allies orchestrate collective security.  Particularly, he takes issue with the way in which the North Atlantic Treaty Organization (NATO) is run.  He contends that the United States pays far more than its share while other members unfairly enjoy the fruits of the United States acting as the “policemen of the world.”  In the first presidential debate, he noted that the United States “pay[s] approximately 73 percent of the cost of NATO,” and he submits further that too few of the 28 member states spend the requisite 2% of GDP on defense.

His position is that “[t]he countries [that the United States is] defending must pay for the cost of this defense – and, if not, the U.S. must be prepared to let these countries defend themselves.”  The removal of U.S. support from nations that are allegedly not paying their share could indeed incentivize them to change course and begin upholding their obligation to spend on defense.  However, such removal could mean a bleak and short future for NATO.  If the United States, as the strongest military power in NATO, refuses to honor its obligation under Article 5 of the Washington Treaty which essentially commits it and all of the other members to collective self-defense should an armed conflict break out, then the credibility and force of the Organization will take a serious hit.  The looming threat of an expansionist Russia, bordered by small (and in this hypothetical scenario, former) unprotected NATO members such as Estonia, could indeed lead to some tense diplomatic situations if collective security is disrupted.

Immigration

The full extent of Donald Trump’s immigration plan is beyond the scope of this post, but certain aspects of his plan do have effects on foreign policy, so those are addressed here.  Perhaps the flagship policy of Donald Trump’s campaign has been “The Wall” that he intends to build along the southern boarder of the United States, and, unsurprisingly, this is likely the policy that would have the greatest impact on foreign relations and policy.

Particularly, the means by which Trump intends to pressure Mexico into paying for the wall may have an impact on United States-Mexican relations (and others).  To that end, he has suggested the promulgation of a proposed rule under the Patriot Act which would limit the ability of Mexicans to transfer funds to Mexico from the United States.  The rule would require aliens wishing to wire money outside of the United States to affirmatively prove by relevant documentation that they are in the United States legally.  Because Mexico receives, approximately $24 billion USD per year in remittances from Mexican nationals living abroad, “the majority of that amount com[ing] from illegal aliens,” Mexico will want to avoid the enactment of this rule which would curb the flow of these remittances.  The United States will then offer to not enact the rule in exchange for Mexico paying the $5-$10 billion USD to build the wall.

This plan is a difficult one to square with law as it stands in the United States.  First, Trump’s proposed interpretation of the text of the Patriot Act would likely be subject to controversy and litigation.  His proposal necessitates an expansion of the definition of the term “account” in the Patriot Act to include wire transfers, while the text expressly carves wire transfers out of that definition, holding that “Account does not include: (A) A product or service where a formal banking relationship is not established with a person, such as check cashing[ or] wire transfer[.]”  Expanding that definition would likely require legislative action, which would, at the very least, delay this program.

Secondly, the impact of forcing aliens to prove that they are in the United States legally before they can transfer money abroad will not only impact Mexicans and Mexico.  The proposed ruling will impact all aliens wishing to transfer funds, which could have a dilatory and negative impact on individuals and businesses that operate in the United States, but do not have United States citizenship.

Trade

Trump has stated that China is one of the United States’ primary adversaries in trade, frequently accusing it of unfair trade practices which harm domestic markets and industries.  He has suggested that a means by which to change the dynamic of the United States’ trade relationship with China would be to impose (or at least threaten to impose) steep tariffs on China.  This, however, would not be a tenable approach as it is a clear violation of Article I:1 of the General Agreement on Tariffs and Trade (“GATT”).  He has also suggested that China is unfairly subsidizing its exports to the United States and dumping goods, which could be grounds for the legal imposition of higher tariffs on Chinese products assuming a finding by the relevant agencies that China is either engaging in unfair trade practices or that its actions are causing injury to the domestic market.

An alternative route that Mr. Trump has proposed is to pull out of the World Trade Organization altogether.  While this would permit him to raise tariffs on China, this would also have some other rather catastrophic effects on American and global trade.  It would mean a rescission of the covered agreements and all of the benefits that accompany those including the low tariffs that the United States benefits from through the GATT and the General Agreement on Trade in Services.  It would require a renegotiation of tariff levels through free trade agreements with all of the members of the WTO whom the United States does not already have agreements with, and even some of the nations with whom it does have agreements.  Extracting the United States from the World Trade Organization would be like the Brexit, but far more complex and with fewer benefits.

Donald Trump has consistently disparaged the trade agreements that the United States is party to, and has said that he will change the commitments that the United States has made under those.  What is unclear is how, and to what extent he intends to do that.  In Gettysburg, Pennsylvania on October 22, he proclaimed that every single United States trade agreement will be unwound if he is President, but again, it is unclear to what extent those will be “unwound.”  A complete overhaul of all trade agreements would be quite an undertaking, and its outcome would be impossible to determine at this juncture.

(Nick Laneville is the Senior Articles Editor for Volume 32 of the American University International Law Review.)

 

ELECTION 2016: Breaking Down Hillary Clinton’s Foreign Policy

By Ayat Mujais  (@Ayat_Mujais)

October 31, 2016

Numerous individuals, and much of the media, call Hillary Clinton a foreign policy “hawk.”  In general, Clinton often supports the use force along with using diplomacy and negotiation tactics, often called “shillary-clinton-secretary-of-state-portraitmart power.”  She has a record of endorsing new wars, and can be seen as confrontational or an interventionist when it comes to foreign policy issues.  She has a wealth of knowledge from her background as a Senator and as Secretary of State, which many say may assist the US in being more successful in global conflicts.  But what are the specifics of her foreign policy? How will her policies affect international relations?  These are important questions that this post will address.

China

Clinton’s policy on China is split – she is tough in most her policy stances, yet still wants to increase cooperation with the Chinese. In terms of positive policies, Clinton is poised to continue President Obama’s “pivot” to Asia.  Clinton wants to reinforce US allies in Asia-Pacific and increase cooperation in common interest areas.  However, Clinton has a long record of rhetoric against China that has caused tensions with Chinese officials.  She has a strong and critical stance against China’s human rights record, which she has often spoke openly about, to the frustration of Chinese officials.  Moreover, she is against China’s push into the South China Sea, and has called for increased deterrence against Chinese cyber-attacks.

Secretary Clinton’s policy on China will certainly affect US-Chinese international relations.  Some experts have said that Clinton needs to be “cautious and pragmatic” in her approach, since China is critical for the economy and world order in general.  Her policy on speaking out against China’s human right’s record and push into the South China Sea have already raised tensions among Chinese officials.  The Chinese view Clinton as an interference in their goals towards the South China Sea and other geopolitical aspirations.  Clinton has stated that although dynamics between the US and China are challenging, she believes they are positive.  It is yet to be seen if her foreign policy will continue that positive relationship, or create problems down the road, although many think that relations will become turbulent.

The Middle East

            Islamic State in the Levant

Secretary Clinton has a three-part strategy to combating terrorism, particularly against ISIL.  First, she wants to defeat ISIL in the Middle East, specifically in Syria and Iraq.  Second, she wants to dismantle the infrastructure that provides and facilitates a flow of fighters, arms, and propaganda to terrorist groups.  Finally, she wants to increase US and US Allies’ defenses against external and homegrown terrorist threats.

In regards to ISIL, Clinton plans to fight them with the aid of a coalition of other Western and Arab states, establish a no fly zone and refugee exclusion zone over parts of Syria, and strengthen Arab fighters on the ground.  In tandem with conducting more US air strikes and the limited use of armed drone strikes, Clinton thinks it is critical to support and arm Sunni and Kurdish fighters already in Syria to build local capacity.  Her policy also includes strengthening intelligence through close regional partnerships to stop the flow of foreign fighters.  Finally, Clinton believes the US needs to play a bigger role in resolving the humanitarian crisis.

Many believe that if Hillary Clinton becomes President, she will have a more active role in the Middle East and increase the potential for interventions.  This seems apparent from Clinton’s push to Congress to update the Authorization to Use Military Force. What can be called her “militaristic” positions are concerning for other states.  Her policy may also heighten tensions between the US and Russia and the US and Iran, particularly her position on establishing a no fly zone in Syria.  Some experts have stated that her decision making is “flawed,” mainly because of her commitment to intervention and to changing regimes or political processes in the Middle East.

            Iran

Hillary Clinton has a strict policy towards Iran.  Her policy includes imposing sanctions on Iran for failure to comply, as Iran continues violating UN Security Council resolutions through their testing of ballistic missiles.  Clinton wants Iran to abide by the multinational nuclear deal that was established, which she supported.  She also wants to increase the costs on Iran for its “destabilizing behaviors” throughout the Middle East.  Particularly, Clinton wants to counter Iran’s influence over groups such as Hezbollah in Lebanon and Hamas in Palestine.

Although US-Iranian relations have been normalizing as of late, there are still many issues between the two nations, not only ideologically but with policies regarding Syria and Yemen.  Many hope that the recent dialogues and engagement between the two nations will continue, which seems most likely under a Clinton administration, although perhaps not as much as some would like.  Clinton has stated that she is willing to take military action if Iran breaks from the nuclear deal, which certainly does not sit well with Iranian officials.  US-Iranian relations will depend on how much cooperation and dialogue Clinton will pursue as president.

            Israel  

Similar to most US Presidents, Secretary Clinton has been friendly with Israel throughout her political career.  Clinton’s foreign policy towards Israel is to maintain Israel’s military superiority in the region.  She wants to remain a partner with Israel in terms of joint efforts in the region, including intelligence.  In general, Clinton wants to reaffirm her bond with Israeli Prime Minister Benjamin Netanyahu should she become president.

This policy will likely strengthen international relations between the US and Israel.  A poll shows that 68% of Israelis view Clinton favorably, compared to 43% for Trump.  However, only 32% of Israelis think that Clinton will get along better with Netanyahu as compared to Trump. Some critics believe that international relations may falter between the two states due to Clinton’s record of “unconditional support” to Israel, and that her previous lack of criticism could create tensions if she is forced to criticize in her role as President.

Russia

Considering current events, relations between the US and Russia are tense. Obama has notably been tough on Russia in his policy stances, and Clinton seems poised to continue down that path as well.  Clinton seeks to increase sanctions against Russia due to its intervention in Ukraine.  Secretary Clinton will raise the cost of Russian aggression, both financially and politically.  Clinton’s Russian policy includes countering Russian aggression by strengthening the European Reassurance Initiative, permanently placing more allied troops and weapons throughout Eastern Europe.  Clinton will further expand US missile defenses in Eastern Europe, adding to the political and military consequences of Russia’s recent actions.

Clinton’s policy is unlikely to better US-Russian relations should she become President.  Clinton has called Putin a “bully” in the past, so personal relations between the two are already tense.  It is clear that Putin prefers Trump over Clinton.  Therefore, Clinton’s foreign policy will likely have a negative effect on international relations with Russia.

National Security

Clinton’s foreign policy regarding national security both increases and decreases national security mechanisms.  On one hand, Clinton’s policy includes maintaining current restrictions on NSA surveillance, closing Guantanamo Bay, and prohibiting the use of harsh interrogation techniques.  On the other hand, Clinton’s policy will increase screening of individuals traveling to states that have issues with terrorism, strengthen US military alliances, and build a global counterterrorism infrastructure.

Clinton’s policy also leaves the US within NATO.  Clinton has praised existing alliances within NATO, and thinks that the US should continue to strengthen our allies as it supports US interests, both with our European allies and opposition to Russian expansion.  In Clinton’s view, NATO partnerships makes the US stronger globally, and may assist with US regional tactics, such as the potential no fly zone in Syria.  This policy will certainly strengthen US-EU ties.

Regarding US international relations, Clinton’s foreign policy on national security will likely strengthen many of our relationships, particularly with our European allies.  Most of the EU favors Clinton, although there have been some doubts. Clinton’s national security, for the most part, may assuage these doubts. Clinton would further encourage EU allies to be responsible for their own security by exchanging US commitments for EU commitments, which will probably have strong effect one way or the other. However, Clinton’s policies, particularly regarding NATO, will likely further increase tensions with Russia, as US participation in NATO prevents increase in Russian empowerment and expansion in Eastern Europe.

Trade, Climate, and Energy

In line with most politicians, Clinton wants to ensure that the US in engaged in free trade agreements that create more jobs in the US.  This is one of the reasons she is opposed to the TPP, and supports the export-import bank.  Additionally, Clinton will likely follow Obama’s climate policies; now that the US has signed the Paris Agreement, Clinton wants to ensure that the US abides by this agreement through limiting global carbon emissions.  Moreover, Clinton wants to expand US investment in renewable energy and ban drilling for oil in the US arctic region. Finally, Clinton’s policy includes the continued blocking of attempts by TransCanada to construct the Keystone XL pipeline.

Clinton’s foreign policy on trade and climate will likely have both positive and negative effects on international relations. On a positive note, continuing to adhere to the Paris Agreement and serve as a leader for combating climate change will sit favorably with other nations who have ratified the agreement. However, her policy to prevent the construction of TransCanada’s Keystone XL pipeline may cause slight tensions with Canada, although nothing that can’t be overcome. Further, her opposition to the TPP blindsided states in the region, particularly US allies, and has undoubtedly raised concerns among them on the impact of this opposition.

(Ayat Mujais is an Associate Executive Editor on Volume 32 of the American University International Law Review.)

AUILR Symposium Panel: Children in Armed Conflict and International Law

By Kimberly Reynolds

October 21, 2016

During the 2016 International Law Review Symposium, five esteemed practitioners discussed the complexities that inundate the use of children in armed conflict.

The targeted use of children in armed conflict has become a commonplace and redundant narrative for non-state armed groups.  The targeting and use have expanded beyond the “traditional” scope for use of children in combat situations. Thus, a new definition of children in armed conflict has been authored to broaden the protection afforded by the international community.  Today, this definition extends to attacks on schools by extremist groups, where recently, more than 1,000 children were abducted by the Islamic State (IS) in Iraq and Syria.  Further, it has been compounded by instances of sexual violence reported by foreign keepers.

Jo Baker of Human Rights Watch, discussed the complexity that this issue fabricates for States and the international community. Recently, she has participated alongside the United Nations (UN) Security Council with investigations in Burma, Nepal, Sri Lanka, and Uganda. She discussed the all too frequent trend of IS recruiting school girls across the globe, from Denver, Colorado to London, England.  The story is the same: school girls ages 15-16 are solicited by members of IS, primarily by way of money, prestige, indoctrination, and force.  To this day, it is unknown how many children have joined IS.  It has been reported that the Islamic State is using child soldiers as reinforcements in Al-Hasakah.  Despite that the protection of child soldiers is an almost universally accepted human right, children remain tactic targets for several terrorist and military groups.

Rachel Stone, of the Stimson Center, discussed the linkage between weapons and child soldiers. Not only are child soldiers tragic victims of war, they are also recognized as lethal weapons by armed groups.  Because they use smaller , it is easier for children to transport, use and acquire these weapons.  The link between availability of weapons and child soldiers has been recognized for years, and many countries have taken steps to address this connection.  Despite the efforts taken by many countries, the link between weapon supplies from one country, to the proliferation of child soldiers in another, still exist: China to Sudan, Germany and France to the DRC, and US military assistance through arms and training.

The US has attempted to address this problem through the Child Soldier Prevention Act of 2008.  This Act requires annual tracking of the use of child soldiers and the compilation of a list countries that use child soldiers.  The countries on this list are prevented from receiving any military aid from the US.  This prohibition extends to international educational training (grants from foreign governments to come to the US and other counties to get military training), foreign military financing (tax payer money to buy weapons), sales completed by US weapons manufacturers, and excess defense spending.

However, the Act does not apply under Section 1206 of the National Defense Authorization Act.  This allows the Secretary of Defense to train and equip groups in foreign defense against terrorists and terrorist groups.  It also does not apply to the Peace Keeping Operations Fund, which is not supported through the UN.  Lastly, governments can receive otherwise prohibited weapons if they are using those weapons for professional military purposes and are taking reasonable steps, such as action plans, to stop the use of children in armed conflict.

The Child Soldier Prevention Act is not meant to be punitive, but rather to incentivize countries to abandon the use of child soldiers in order to receive military assistance from the US.  However, under the Act, the President can waive the prohibition on the premise of “national interest.”  The Obama administration has used this waiver 22 out of 30 times.  In 2015 alone, the President employed national interest waivers for four of the eight governments that are on the watch list: the Democratic Republic of Congo, Nigeria, South Sudan, and Somalia.  Currently, there is $130 million in assistance flowing to Somalia and Sudan.  Yemen did not receive a waiver, but the caveat was that assistance would continue if conditions changed.  In the end, $1 billion has been authorized to countries that use child soldiers.

Another case is that of Afghanistan.  There are two main forces: national and local police.  The local police are set up, funded, and supported almost entirely by the US government.  So one must ask the question, why is the US funding of local Afghani police forces not taken into consideration by the US government?  The answer to this remains unclear.  The US government does not recognize Afghanistan’s local police as an armed force under the definition provided in the Optional Protocol, so it does not fit into their definition of the Act. Thus, it is important that the definition recognized in the Optional Protocol include local forces in order to close this loophole.

Child Soldiers International, an organization that works to prevent the recruitment of children in armed conflict, lists parties who use children in armed conflict in annual accounts.  Charu Lata Hogg, the group’s Policy and Advocacy Director, points out that of the 57 parties listed, 49 non-state parties are armed groups.  The challenge of non-state armed groups is that they are complex, difficult to access, have different ideological motives from that of States, and they are not as engaged with the international community.  These factors mean that the international community has limited leverage and access. Child Soldiers International reports on what is happening within the armed groups, and if any progress has been made with best practices.  Ms. Lata Hogg believes the only way to engage these groups are to bring all the mechanisms and beams of commitment together, because they do not work on their own.

Last year, Child Soldiers International worked on Operation Protective Edge Israel.  They campaigned systematically with the UN Secretary’s Office, documented all violations that Israeli forces had committed, and compiled them into the UN system.  However, support from the Secretary General was turned down, likely due to politics.

Notwithstanding the challenges facing the international community in enforcing this right, there are four avenues that have aided in the reduction of Child Soldiers: (1) Engagement with the UN Security Council; (2) the use of the International Criminal Court (ICC); (3) increased bilateral engagement; and (4) ending wars.

First, as Sharon Riggle, the Chief of Office for the United Nations Office of the Special Representatives of the Secretary General for Children and Armed Conflict (UN SRSG) states, the UN Security Council has been much more engaged.  This engagement followed the realization that children were slipping through the cracks and were not being protected by the international community.  Following Resolution 1261, child soldiers were named as a peace and security issue, and the Security Council has made it a greater priority.  As a result, the UN has been directly negotiating action plans with countries to end the use of Child Soldiers.

Action plans function by placing countries on a watch list.  A country is placed on a watch list when they trigger any of the following six factors: (1) recruitment and use of children for armed conflict, (2) killing and maiming, (3) rape and other sexual violence, (4) abductions, (5) attacks on schools and other centralized and regularly occurring violence, and (6) denial of humanitarian access.  After they are reported by the UN Human Rights Assembly, the UN Security Council engages directly with governments and special groups to create action plans.  This can involve closing gaps in legislation which permit use of child soldiers.  This is a way to stop and prevent the use of child soldiers, rather than just pointing a finger. There is often political interest of the signatory party which is sustained by high level UN and third party engagement. This also gives the Council direct access to senior leadership.  Today, the UN has successfully implemented nine action plans and those countries no longer use child soldiers.

Now, unlike twenty years ago, there are international criminal prosecutions for those who are caught using child soldiers.  The  International Criminal Court (ICC) convicted their first war criminal, Thomas Lubanga of Sierra Leone, on the use of child soldiers. As these convictions become better known, commanders have expressed fear of being indicted.  This fear illustrates how the success of the ICC convictions could be a powerful deterrent.

Third, there has been increased bilateral engagement.  One example is financial assistance, which is twofold.  Following the end of the war in Sierra Leone, the United Kingdom provided the nation with 10 million pounds for assistance contingent on the suspension of use of child soldiers. However, following funding, civil defense forces alerted the UK of the continued use of child soldiers.  Following this notification, the UK made sure the use of child soldiers was stopped before they continued funding.

Lastly, ending the wars themselves would create the largest drop in the use of Child Soldiers.

Although these avenues have provided some relief and progress, challenges still remain. First, for both governments and armed groups, the use of child soldiers still outweighs the risks.  Second, efforts to address extremism by armed conflicts actually creates detention of children.  Thus, some children conclude that they might as well join in order to get protection.  For children who do come out of it, there are reintegration challenges as they often leave ostracized and without skills as occurred in Iraq, Sudan, and Syria.   Third, many extremist groups have little interest in a relationship with the UN and possess little concern for a dialogue or international opinion.  Thus, the international community has an abundance of tools, yet they are not being utilized as well as they should be.

As discussed by all four panelists, the issues surrounding the use of children in armed conflicts are complex and intertwined with international politics and business, by way of the international arms trade.  International legal tools such as laws from various States, international mandates, international courts, and recognition from the international community have all aided in slowing and shrinking the use of children in armed conflict.  However, more transparency, cooperation, openness, and coordination between groups is needed to halt the oppressive use of children as tactical aids in armed conflicts altogether.

(Kimberly Reynolds is the Symposium Editor for Volume 32 of the American University International Law Review.)

 

 

 

 

 

 

 

Symposium Closing Keynote: Thomas Kline on International Law and the Recovery of Looted Artwork

By: Yvonne Woldeab* 

A Tale of Two Churches.  Thomas Kline shared two parallel stories of precious lost and found (or more accurately, looted and recovered) artworks that have shaped the international art law landscape today.  Both stories are set in Cyprus—one in the village of Lysi, and the other in the northern town of Lythrankomi.

The Greek Orthodox sanctuary in Lysi displayed two incredible 800-year-old frescoes in the church’s dome.  In Lythrankomi, the Church of the Panagia Kanakaria housed beloved Byzantine mosaics that had adorned the church’s walls and apse since the sixth century.

In the summer of 1974, the Turkish army invaded Cyprus.  In the years following the invasion, Turks looted both the Greek Orthodox church in Lysi, and Panagia Kanakaria, as well as many other churches and homes, and took the treasured frescoes and mosaics.

Lysi. Bandits reportedly used a chainsaw to slice the two ancient frescoes out of the dome of the Greek Orthodox church into thirty-eight separate pieces, and later shipped them to Germany.

In Munich, a Turkish dealer attempted to sell the frescoes to Dominique de Menil, a noted art collector, patron, and world-class Byzantine art specialist. The Turkish dealer claimed the frescoes were found in a private home in the Anatolian region of Turkey. As the article recounted:

De Menil, standing in a warehouse in front of a set of chopped-up 13th-century frescoes, was pretty sure she knew better.

De Menil told the Turkish dealer she wanted to take pictures of the frescoes to look at while she pondered her decision to buy. But that was a trick; instead her researchers painstakingly tracked the frescoes back to Cyprus. It took more than a year.

De Menil contacted the archbishop responsible for the looted chapel, offering to ransom the frescoes from the so-called “owners” and then restore them — at a cost of more than $1 million.  In return, she wanted to display them in Houston for a while before repatriating them.

From 1997 to 2012, the frescoes were on display in Houston in a $4 million chapel built especially for them.  Finally, in March 2012, the frescoes were returned to Cyprus.

Lythrankomi. In 1988, over a decade after the Turks took the Byzantine mosaics from Panagia Kanakaria, an American art dealer discovered four rare Byzantine mosaics, each a two by two foot square panel. According to their accompanying documentation, these mosaics were legally exported out of  Cyprus.

The art dealer purchased the mosaics for over $1 million and shipped the art to Indiana.  From there, she attempted to sell the panels for over $20 million to the Getty Museum in Malibu, California.  However, Getty’s curator of antiquities recognized the Byzantine pieces, and notified Cypriot authorities that the famous missing artworks had resurfaced.

Within months, the Autocephalous Greek Orthodox Church of Cyprus and the Republic of Cyprus initiated a lawsuit in the U.S. District Court of Indiana to recover the art.[i]

The District Court found that the “discovery rule” applied, which prevented the statute of limitations from running until the Church knew or reasonably should have known who possessed the mosaics.  Because the Church had been diligent in attempting to locate and recover the art over the years, the court concluded that the lawsuit was timely.

The case also presented a significant legal question regarding the conflict of laws.  If U.S. law applied, proper title would not pass with the theft.  The American purchaser would have only received a voidable title, which would be revoked if the works were later found to be stolen, or the seller did not have a legal right to sell it.  In contrast, under Swiss law, the American purchaser would have good title, and any claim of theft would have to be pursued against the person who sold the piece to the American, and not the innocent American purchaser.

Ultimately, the District Court found that U.S. law applied, and ordered that the mosaics be returned to Cyprus.  The Court of Appeals for the Seventh Circuit affirmed the decision.

The decision, Thomas Kline noted, helped set forth tangible good faith standards in art market transactions.  Moreover, foreign governments have responded to looting of cultural property with proactive and creative agreements, such as the loan negotiated for the Lysi frescoes.  In exchange for restoring and preparing to repatriate the frescoes, Cyprus permitted the pieces to be displayed in Houston for fifteen years for all visitors to see and share in the enchantment of its ancient beauty, just as art is meant to be.

[i]  Autocephalous Greek-Orthodox Church v. Goldberg, Civ. No. 89-304-C (D. IN) (Aug. 3, 1989).


*The author is a Junior Staffer for Volume 30 of the American University International Law Review writing as a part of our series recapping our February 2015 Symposium: Protecting Art and Cultural Property Through International Law at ASIL