The international legal (dis)order: Deleterious effects of “Us and Them” politics, zero-sum

games, and flagrancy of power at global scale

Adam R. Tanielian
Abstract: This article posits the international legal order has fundamentally broken down. A
range of government, private, and academic sources depict a world where corporate power is
ascendant, individual human rights are stagnant and under threat by both private and public
institutions, and governments are disinterested in transparently and thoroughly performing their
treaty obligations. Central to the systemic breakdown assertion is the interdependency of what
may appear as discrete or independent areas of law – private and public, domestic and
international, human rights, environmental – and sectors of scalable local, national, regional, and
global economies. Idiosyncratic state conduct and uneven compliance with fundamentals of
international law support the theme. Numerous examples from dozens of countries, and the
United States in particular, illustrate a pluralistic status quo where wealthy and powerful actors
disregard rule of law, instead relying on corrupt practices and antiquated rules of force.
Recommendations call for paradigm shift and revised approach to contemporary issues at law.
Keywords: International law; rule of law; human rights; arms proliferation; corruption;
environmental law
Introduction
In the history of international law and relations, the Peace of Westphalia is often
considered the milestone event when countries were first defined as having concrete, inviolable
borders, and nations undertook to respect the territorial integrity and political sovereignty of
other states. The new international order, however, lacked universality and consistency.
European emperors, tsars, popes, kings and queens granted some limited sovereignty to
surrounding legal states in Europe, they did not impart this right to indigenous nations in Africa,
Asia, Australia, North or South America where Europeans sought to plunder lands, set up
colonies, and subjugate or exterminate natives. Even in Europe, the peace was not prolonged.
Just as early governments in the United States violated nearly every treaty with native tribal
nations during westward expansion, behavior of states in the Eurocentric world after Westphalia
was quite similar to that before the landmark theoretical development. Status quo in the
international community may have evolved to include verbal or written consent to certain
fledgling legal principles, but in practice states were only bound by the fluid and ambiguous
natural laws of history. Leaders could rationalize nearly any action as moral, and each regime
was limited only to the extent that it could not impose its will upon others via military force.
Prolific cases from time immemorial, through dynasties and evolution of the so-called
international order after Westphalia, have consistently demonstrated that governments bound by
nothing other than their voluntary compliance have no ineradicable will to carry out treaty
provisions. Tribalism and feudalism were manifested in the narcissism of minor differences even
among people of a similar color, creed, language, and religion. The only discernible
transcontinental order throughout history has been that of force and power. There has seldom
been any perceived benefit in adhering to legal theory if a nation could seize and control territory
without exceeding some maximum threshold of acceptable political, social, or economic cost.
The law of the jungle, that of force and power, only binds people to what they can, rather than
what they should, do. No single global standard for state conduct has emerged even since
formation of the United Nations (UN), under whose Charter governments solemnly committed to
respect overarching principles of sovereign equality, non-aggression, self-determination of
peoples, non-discrimination, and human rights1. Not a year has passed without armed conflict
since the milestone genesis of the UN multilateral treaty system. Throughout history and
extending to the present-day, violence has been so constant and widespread that a rational case
cannot be made which reasonably proves countries have, in fact, resolved to carry out their most
fundamental treaty obligations.
World War Two (WWII) changed the theory of international law, but state practice has
not kept pace. The utter absence of peace between and within nations diminishes the grandeur
and undermines the integrity of post-WWII treaty system. Since WWII, just as history showed
before it, transgressions have continually persisted through time, and offenses against the peace
have gone substantially unchecked across, between, and within borders. Although the rate of
military and civilian casualties have fallen since the last WWII2, such hopeful statistics are
largely a result of rapid increases in global population and improvements in military efficiency
rather than genuine cessation of hostilities. Since WWII and the latter dissolution of colonial
systems, nations have suspended ambitions to take over the world with military force, but civil
wars have grown in number, and a new category of armed conflict has emerged where a group of
states contribute troops and arms to one or more sides of a conflict3. The world’s people and
economies have become more interconnected, and breaches of peace do not occur in isolation,
nor without intelligence and aid from vital corporate or foreign sovereign powers.
As the international legal landscape developed, so too have cultures and societies.
Permanent armed conflict has become integral to states insomuch that we have new lexicon to
discuss a novel economic sector: the military industrial complex. Where economies and labor
forces have become dependent on military contracts, monetary profits incentivize the creation,
enabling, and ignorance of armed conflict. Public and private leaders entrenched in the business
and ethic of war inevitably parcel less time and mental capacity for peace. In a world that has
been “deformed and poisoned by the psychosis of permanent war,” said Chris Hedges, “human
rights campaigners, intellectuals, and journalists…are subject to constant state surveillance,
arbitrary arrests, and government-run smear campaigns…[the] educational system, starting in
primary school, has become an indoctrination machine for the military…[and by] refusing to
acknowledge our [people’s] complicity in creating the conditions that lead [other] people to
embrace violence and militancy, we perpetuate policies of state terror and state murder and we
stoke the very militancy we purport to fight…and this reality also shatters the fiction of a peace
process.”4 In social and political environments constantly engaged in conflict, there are
invariably insufficient motivators and resources to prevent and redress offenses against rights at
home. Where domestic violations of civil or human rights transpire, whether public or private
perpetrator, courts habitually favor the interests of the politically and financially powerful
defendant-perpetrator over the disadvantaged plaintiff-victim5.

1
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, at Chapter 1.
https://www.refworld.org/docid/3ae6b3930.html [accessed 13 May 2020]
2
Beauchamp, Zach (2015). 600 years of war and peace, in one amazing chart. Vox.
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3
Pattersson, Therese & Wallensteen, Peter (2015). Armed conflicts, 1946—2014. Journal of Peace Research, 54(4),
536—550. https://journals.sagepub.com/doi/full/10.1177/0022343315595927 [accessed 13 May 2020]
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Hedges, Chris (2014). The psychosis of permanent war. Journal of Palestine Studies, XLIV(1), 42—51, at 48.
https://doi.org/10.1525/jps.2014.44.1.42 [accessed 22 May 2020].
5
Cohen, Adam (2020). How the Supreme Court favors the rich and powerful. Time.
https://time.com/5793956/supreme-court-loves-rich/ [accessed 13 May 2020]
 This article analyzes factual behaviors of states in comparison to their theoretical
imperatives as contained in treaties and customary international law (CIL). Each section
identifies aspects of domestic legislation, judicial opinion, and executive action which conflict
with international law and therefore subvert global order via rule of law. Sources show
interminable offenses against domestic and foreign individuals, and against foreign states, by
both public and private agents from a diverse set of countries. Notwithstanding the international
agreements and municipal laws prohibiting egregious conduct and obliging states to take positive
legal action against offenders, sovereign powers have shown disinclination toward providing
remedy for individuals, especially when racial minorities and people of lower socioeconomic
status are the aggrieved parties. Simultaneously, states have extended legal rights and privileges
corporations and wealthy individuals that enable these actors to relentlessly abuse underclasses.
States have applied a similar outlook in their selective recognition and respect for the sovereignty
of some but not all other countries, whereby a few strong nations exercise their natural
inclinations to dominate weaker countries.
This is an international legal and social scientific study referencing dozens of countries
and their citizens, but the research pays special attention to the United States (US) due to its
current and historical economic, political, and military influence worldwide. Nowhere else in the
world is the ethnic, cultural, and religious diversity of the human species reflected as much as in
America. While the US represents only a small fraction of the world’s population, and its
hegemony over global issues is waning, its behavior is still crucial in assessing the two
preconditions for formation of rules under CIL – state practice and judicial opinion. In some
instances, the US stands as the chief example of a powerful nation that has violated the
international order with impunity, and so thorough review of its policies and practices are
essential to a central theme of the article: rule of power and force still displaces rule of law.
Wealth and power appear to be virtually the only consequential determinants of a state’s
sovereignty in a pragmatic sense, despite the voluminous legislative, judicial, and scholarly
writings on territorial integrity and political independence. Similarly, individual wealth and
power give rise to significant advantage in domestic civil and criminal courts. Individuals of
lower socioeconomic status are widely depicted as trampled under the heavy feet of private and
public agents and organizations whose prosperity grants them access to superior legal services.
This article is not intended to provide an exhaustive list of cases representing hypocrisy
and double-standard; rather, the aims are to provide a brief set of cases that reveal latent
insincerity with which sovereign states participate in the international system, and to expound
upon how states sanctimoniously criticize others while excusing and legalizing abuses at home.
The research draws on sources as evidence to make a weighty claim: that sovereign powers have
joined treaties and promulgated domestic statutes either without intent or competence to perform
the terms. Analyses imply the legal order pertaining to human rights, environmental pollution,
and war has experienced such foundational breakdowns that positive law is virtually irrelevant to
state or business conduct as governments effectuate and permit behaviors which seriously
contravene both the letter and spirit of the law. Moreover, just as the peace of Westphalia was
not a lasting peace, the current international order has failed in its most basic missions of
achieving peace, human rights, and justice for all persons regardless of frontiers. Conclusions
point toward reimagining the rights of individuals and their juxtaposition with an international
system. Nations are urged to recommit themselves to common purposes, and in the process
provide more opportunity for diverse individuals to contribute in the evolution of the UN system
that incentivizes compliance. A diverse solution set is available, but leaders must first admit
there is a problem, and then states must voluntarily engage in a process of reform. Considering
the range, severity, and consistency of offenses against the international order, nothing short of
paradigm shift is likely to succeed.
We, Transgressors
Milton Friedman once introduced economists to a story about a pencil, using it as a
perfect example of how global markets function. In I, Pencil6, Friedman explained the raw
materials of the pencil (wood, graphite, rubber, brass, paint, glue, etc.) and their constituent parts
originated in different places around the world. Taken further, one could trace the origins of the
machines used in the manufacture and shipment of each element of the pencil and again envision
geometric growth in the number of people and places involved in making what appears to be a
relatively simple good. Something as mundane as a pencil is an amalgam of seemingly
innumerable materials and works spanning the globe. By the time the pencil is finished, only a
fraction of a percent of the people who contributed to it actually knew they were making a
pencil. Similarly, violations of legal provisions regarding armed conflict, the environment, and
human rights demand tools and participants whose inputs compass the world.
Media narratives suggest abuses of our global system are localized in and around
warzones, organized crime hotspots, or quasi-failed states. Causes for Somali piracy, for
example, are usually cited as a mix of domestic institutional, legal, and economic weaknesses7.
Occasionally, a researcher tracks monetary support back to diaspora communities in North
America8. Historical contextual factors relating to the brutally destructive process of
decolonization are rarely, if ever, mentioned in literature. Foreign arms suppliers are likewise
omitted from typical analyses. Authors routinely ignore contributory and conditional causes like
suppliers of khat, cigarettes, and alcohol that fuel the delusional fanaticism pirates experience9.
Unsurprisingly, experts never comment on minutiae such as the gasoline used to propel pirate
boats, or the manufacturers of shoes and pants pirates wear though it is obvious that a pirate
could not plunder at sea without an engine-powered boat, guns and ammunition, and clothes.
In attempts to reduce a problem to a small enough perceptual set that average literate
consumers of media can understand it, journalists have often unwittingly reported only fractions
of the stories. For instance, beheadings and assorted crimes against humanity perpetrated by
Islamic State (IS) garnered press attention and public outrage around the world, yet little was
mentioned about how the same Western nations engaged in the internationalized conflicts had
manufactured much of the weaponry IS used to seize and control lands10. Had the Great Powers
not authorized sale and transfer of arms to places like Iraq, there would not have been an Islamic

6
Read, Leonard (1958). I, Pencil: My family tree as told to Leonard Read. Irvington-on-Hudson, New
York: Foundation for Economic Education, Inc.: 1999. http://oll-
resources.s3.amazonaws.com/titles/112/Read_0202_EBk_v6.0.pdf [accessed 12 May 2020]
7
Cambell, John (2017). An uptick in Somali piracy caused by a wave of poor maritime decision-making. Council on
Foreign Relations. https://www.cfr.org/blog/uptick-somali-piracy-caused-wave-poor-maritime-decision-making
[accessed 13 May 2020]; Felbab-Brown, Vanda (2013). The not-so-Jolly Roger: Dealing with piracy off the coast of
Somalia and in the Gulf of Guinea, in Foresight Africa: Top Priorities for the Continent in 2014, p. 5.
https://www.brookings.edu/wp-content/uploads/2016/07/02-foresight-piracy-somalia-felbab-brown-1.pdf [accessed
13 May 2020]
8
Kellerman, Miles (2011). Somali piracy: Causes and consequences. Inquiries Journal/Student Pulse, 3(9).
http://www.inquiriesjournal.com/a?id=579 [accessed 13 May 2020]
9
Karimi, Faith (2013). African pirates use millions of dollars in ransom on drugs, real estate, prostitutes.
https://edition.cnn.com/2013/11/02/world/africa/horn-of-africa-piracy-loot/index.html [accessed 13 May 2020]
10
Amnesty International (2018). How Islamic State got its weapons. https://www.amnesty.org.uk/how-isis-islamic-
state-isil-got-its-weapons-iraq-syria [accessed 13 May 2020]
State to fight. However, since the military industrial complex is an essential element in those
economies, expansive sales of war weapons is fundamental to growth in overall market value
and gross domestic product (GDP).
Thorough inspection of a situation shows all manner of human rights abuses are complex,
institutional behaviors that are often impossible without international business support, and
justice systems are either complicit or incapable of providing remedies for affected individuals.
Narcotics trafficking organizations in South and Central America can operate with relative
impunity not only because of the American and European cash their trade generates, but also
because they have sufficient firearms, light artillery, and other military technologies to defend
themselves against the state. They also have the good fortune of living in lower-income nations
where public officials are eager to supplement meager government incomes with corrupt
payments11. An intricate confluence of circumstances and physical ingredients blend together to
create events like a stray bullet from a Mexican firefight hitting a mother as she pushed her baby
in a stroller along a Texas road12. But just as the narcotics themselves require raw materials, lab
equipment, and personnel from multiple countries before the finished product can be brought to
market, so too do political, legal, and security situations involve a nexus of private and public
actors.
Gas and oil industries worldwide have been implicated in egregious violations of human
rights in consort with private militias and government armed forces. Under the Alien Tort Claims
Act (ACTA)13, US Courts held Unocal liable for forced labor, murder, and rape carried out by
Myanmar government security forces during construction of a pipeline in the early to mid-
1990s14. Doe v. Unocal marked the first time a multinational corporation (MNC) compensated
surviving victims for human rights abuses15. Hydrocarbon goliaths predictably sought to make it
the last such reparation, and the American judiciary heeded the call to stop the bleeding. US
Courts decided in favor of Chevron in a 1998 incident where Nigerian government security
forces shot four locals, killing two16. Victims had applied in the United States because Nigerian
courts were unwilling to further claims against their own government which depended on
revenues from the oil industry. Upon receiving judgements in its favor from the American courts,
Chevron promptly sued the plaintiffs for nearly $500,00017, sending a message to any other poor
villagers who might be brave enough to challenge the almighty oil company: think again. A few
years later, the US Supreme Court (USSC) effectively nullified ACTA in another case involving
Nigerian government forces who utilized the same tactics for securing an oil field as seen in the
Myanmar-Unocal case18. The Nigerian case had already won in the African Commission on
Human and People’s Rights, but the award used the soft language of international law,
11
Tornaghi, Cecelia (2019). Colombia’s Inspector General: “Corruption is the new cartel”. Americas Quarterly.
https://www.americasquarterly.org/article/colombias-inspector-general-corruption-is-the-new-cartel/ [accessed 13
May 2020]
12
Crowder, David (2012). Mother pushing stroller in Texas hit with bullet from Mexico.
https://www.reuters.com/article/us-border-shooting-texas/mother-pushing-stroller-in-texas-hit-with-bullet-from-
mexico-idUSTRE81L06620120222 [accessed 13 May 2020]
13
Alien Tort Claims Act (ATCA), 28 U.S.C. §1350 (1789).
14
Doe I v. Unocal Corp., 395 F. 3d 932 (9th Cir. Ct. of App. 2002).
15
Marshall, Michael (2005). Redford appeals to law students to fight human rights abuses.
https://www.law.virginia.edu/news/2005_spr/ps_redford.htm [accessed 13 May 2020]
16
Bowoto v. Chevron Corp., 557 F. Supp. 2d 1080 (Dist. Court, ND California 2008)
17
Paddock, Richard (2009). Chevron seeks reimbursement from villagers who sued in 1998.
https://www.latimes.com/archives/la-xpm-2009-feb-08-me-chevron-nigeria8-story.html [accessed 13 May 2020]
18
Kiobel, et al. v. Royal Dutch Petroleum et al., 133 S. Ct. 1659 (U.S. Supreme Court 2013)
“appealing to” rather than “ordering” Nigeria to pay “adequate compensation to victims” rather
than a specified amount19. In other words, the Ogoni people won nothing but a piece of paper, so
they filed for actual damages in the US, prompting a landmark ruling in favor of corporate over
natural people.
Tort reform had been a hot-button issue for years, and the USSC was instrumental in
making pollution more economically-viable than legal compliance. Following the Exxon-Valdez
Alaskan oil spill, the USSC decided punitive damages could not exceed compensatory
damages20. Cases demonstrating environmental harms associated with hydrocarbon extraction,
refinement, and transport are plentiful in part because companies can afford to pay damages
rather than amend their unsound practices. Business, legal, and scientific experts are fully
conscious of the apparent fact that corporations seek to create and exploit weak laws and
regulations21. BP’s Deepwater Horizon spill clearly demonstrated that corporate agents apply
insufficient care and diligence and therefore fail to achieve safety and operations targets22, but
even Deepwater was just a drop in the bucket. Two months after the completely preventable
blowout that spewed over 3 million barrels of oil into the Gulf of Mexico23, ExxonMobil’s Rex
Tillerson appeared before the US Congress to testify on behalf of his company which “[was] not
well equipped to handle [major spills]24” but nonetheless sought to continue business as usual
even as Tillerson’s company contributed to oil spills in Nigeria which far outpaced Deepwater25.
With overall tort liability limited to twice compensatory damages, and ACTA off the table, all
the “usual suspects” could weigh costs and benefits of compliance without concern for runaway
verdicts that threaten uncertainty in their bottom line.
“Corporations do not automatically obey the law,” explained former US Secretary of
Commerce Robert Reich. “They weigh the size of the penalty relative to the gain from law
breaking”.26 A Taylor Energy oil well in the Gulf of Mexico ruptured during Hurricane Ivan in
2004, and somewhat predictably, the company sought to keep the leak as private as possible.
Fifteen years later, between 250 and 700 barrels of oil per day were still leaking into the ocean,
and Taylor decided to sue the US Coast Guard’s National Pollution Funds Center for roughly
$354 million. Taylor argued force majeure and sought to reclaim the cleanup costs it had already
spent27. The Taylor leak is the longest spill in history, and it may overtake the Deepwater
19
African Commission on Human & People’s Rights, 155/96, The Social and Economic Rights Action Center and
the Center for Economic and Social Rights v. Nigeria, ACHPR/COMM/A044/1 (2002).
20
Exxon Shipping Co. v. Baker, 554 US 471 (U.S. Supreme Court 2008)
21
Spence, David (2010). Corporate social responsibility in the oil and gas industry: The importance of reputational
risk. Chicago-Kent Law Review, 86(1), 59—85. : https://scholarship.kentlaw.iit.edu/cklawreview/vol86/iss1/4
[accessed 13 May 2020]
22
In re Oil spill by the oil rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 21 F. Supp. 3d 657
(U.S. Dist. Court, ED Louisiana 2014) at J(iii, v) and L(ii) discuss improper maintenance on the “well from hell”.
23
Ocean Portal Team (2018). Gulf oil spill. https://ocean.si.edu/conservation/pollution/gulf-oil-spill [accessed 13
May 2020]
24
Tillerson, Rex. Quote from U.S. House Energy and Commerce Subcommittee on Energy and the Environment,
“Drilling down on America’s energy future: safety, security, and clean energy.” (15 June 2010). Text from U.S.
Government Publishing Office, no. 111-134. https://www.govinfo.gov/content/pkg/CHRG-
111hhrg77911/html/CHRG-111hhrg77911.htm [accessed 13 May 2020]
25
Vidal, John (2010). Nigeria’s agony dwarf’s the Gulf oil spill. The US and Europe ignore it.
https://www.theguardian.com/world/2010/may/30/oil-spills-nigeria-niger-delta-shell [accessed 13 May 2020]. Just
two weeks after Deepwater, an ExxonMobil pipe burst and spilled 1 million barrels over a week before closure.
26
Reich, Robert (2020). The system: Who rigged it, how we fix it. New York: Alfred A. Knopf. p. 38
27
United States Coast Guard, Claim determination, Taylor Energy Company, N13024-0001 (redacted) (2019).
https://www.uscg.mil/Portals/0/NPFC/Claims/2019/N13024-
incident as the largest in US history. In Blowout28, Rachel Maddow expressed detailed concern
that, instinctually guided by demands for increasing profits, oil and gas companies “end up in a
relentlessly, recklessly driven cost-cutting environment in which it’s probably mathematically
worth it to try to get away with almost anything.” Maddow repeatedly lambasted corporate
nescience and warned readers, “In the most profit-making industry on earth, there is still no
meaningful R&D investment in cleanup technology, nor has there ever been any measurable
slowdown in the pace or number of disasters that need cleaning up.” The public and the
environment, destitute of meaningful legislative and regulatory action, are left wanting.
Without a doubt, it takes a global village to raise an MNC from infancy into a behemoth.
There are more hands on an oil pump than there were on Friedman’s pencil. Nearly every
country on earth will have contributed to making a gallon of gasoline by the time it reaches the
pump. Billions of raw and refined materials constitute the global pipeline from extraction to
refining, transportation, and final sale. Still, perhaps no ingredient is as irreplaceable as political
will. Extractive corporations have been instrumental in the decimation of the Earth’s
environmental security and stability, but they have largely been indemnified through a
combination of crony capitalist legislation, corrupt payments, and judicial activism. Studies
consistently show the industry is more likely than others to engage in bribery, especially in
foreign territories29, to secure contracts and gain favoritism with public officials who campaign
for company-friendly laws and regulations. In other parts of the world, a form of legalized
corruption – lobbying – likewise helps motivate legislators to make the legal environment as
favorable as possible to oil and gas companies, who are among the top donors to political
campaign funds30. In 2015, the year of the Paris Climate Agreement31, fossil fuel companies
spent over $1 billion lobbying against controls on greenhouse gas emissions32, perhaps ultimately
persuading leaders to make the agreement nonbinding, toothless. The effect of lobbying on the
function of democracy is not innocuous, either. A landmark study found individuals in the 90th
percentile of income in the US, and their proxy political action groups, have a “quite substantial,
highly significant, independent influence on policy,” as compared to ordinary citizens who have
“a non-significant, near zero-level” impact33.
Once lobbyists have offered sufficient incentive for lawmakers to write or amend
statutes, and the executive has formulated regulations and commenced enforcement strategies
with corporate interests in mind, the final piece of the puzzle is recruiting the judiciary, which
0001_Determination_marked_for_redaction_Redacted.pdf?ver=2019-11-06-111109-480 [accessed 15 May 2020]
28
Maddow, Rachel (2019). Blowout: Corrupted democracy, rogue state Russia, and the richest, most destructive
industry on Earth. New York: Crown. p. 389
29
Chazan, Guy (2012). Oil and gas has the highest bribery rate. https://www.ft.com/content/c84ead24-ce7e-11e1-
bc0c-00144feabdc0 [accessed 14 May 2020]; Gupta, Kartick (2017). Are oil and gas firms more likely to engage in
unethical practices than other firms? Energy Policy, 100, 101—112. Stanford Law School, Foreign Corrupt
Practices Act Clearinghouse (2017). Heat maps of related enforcement actions: By industry.
http://fcpa.stanford.edu/industry.html [accessed 14 May 2020]
30
Noel, John (2016). The chilling effect of oil & gas money on democracy.
https://www.cleanwaterfund.org/sites/default/files/docs/publications/Money_in_Politics_05%2003%2016a_web
%20-%20FINAL.pdf [accessed 14 May 2020]; Laville, Sandra (2019). Fossil fuel big five 'spent €251m lobbying
EU' since 2010. https://www.theguardian.com/business/2019/oct/24/fossil-fuel-big-five-spent-251m-lobbying-
european-union-2010-climate-crisis [accessed 14 May 2020]
31
Paris Agreement (Dec. 13, 2015), in UNFCCC, COP Report No. 21, Addenum, at 21, U.N. Doc.
FCCC/CP/2015/10/Add, 1 (Jan. 29, 2016).
32
Henderson, Rebecca (2020). Reimagining capitalism in a world on fire. New York: Public Affairs, p. 18.
33
Gilens, Martin & Page, Benjamin (2014). Testing theories of American politics: Elites, interest groups, and
average citizens. Perspectives on Politics, 12(3), 564—581, at 572.
may take an expensive gift, or in the case of USSC Justice Lewis Powell, just some pro-business
economic ideology will suffice. On the day Powell accepted his nomination for the Supreme
Court, he sent a memorandum to the Chamber of Commerce which left no question as to his
conservativism and favoritism of business interests over all others. The memo read like an action
plan wherein Powell called for an all-hands-on-deck assault against leftists and liberals whom he
felt were holding academic institutions, the media, and America hostage. Powell decried the
political arena where, “business has been the favorite whipping-boy” and called for a propaganda
campaign to promote business interests in secondary schools, universities, and in all forms of
media. He advocated the Chamber of Commerce lead the charge against “the assault on the
enterprise system” by reconstructing university faculties, preventing civil rights and labor union
advocates from rewriting textbooks, and “monitoring” television networks which he felt were
broadcasting “the most insidious type of criticism” that “results from hostility or economic
ignorance” and whose “result is the gradual erosion of confidence in business”. Finally, Powell
advised business leaders to take advantage of their “neglected opportunity in the courts,” noting
that “the judiciary may be the most important instrument for social, economic and political
change…especially with an activist-minded Supreme Court” like the one he was joining34.
Chris Hedges marked the Powell memo as the beginning of a “slow-moving corporate
coup d’etat”.35 Fifty years later, the highest Court in the largest economy in the world bears the
fruit of Powell’s legacy. The USSC has gradually become more business-friendly over time 36 as
the world has become only more dominated by corporate images, interests, and culture. Hedges
unraveled the story in Days of Destruction, Days of Revolt, saying “the corporate culture…has
seeped into our classrooms, our newsrooms, our entertainment systems, and our consciousness…
corporate culture absolves all of personal responsibility…it relieves all from moral choice…it
has stripped us of our right to express ourselves…we are forced to surrender our voice [to] an
unequivocal acceptance of principles such as unregulated capitalism and globalization as a kind
of natural law [which] requires a passive acceptance of new laws and demolished regulations, of
bailouts in the trillions of dollars and a systematic looting of public funds, of lies and deceit.”37
Legal experts and policymakers have spearheaded the fight to downsize negative optics
in their professions to suit their worldviews and political needs. The International Criminal Court
(ICC), for example, handles cases almost exclusively relating to Africa38 and has never
investigated a situation involving a high-income country despite constant involvement in armed
conflict by, most notably, the United States, France, and United Kingdom. In the same way,
human rights NGOs focus primarily on overpopulated, impoverished, anemic developing
nations. Intergovernmental organizations have turned our attention to migrant crises where
millions of at-risk families flee their homelands in Central America, South Asia, Middle East and
North Africa seeking refuge in free, prosperous states in North America, Europe, and Australia
where human rights are allegedly fundamental. The alleged virtues of the first world are
broadcast far and wide, but one has to actively seek information that does not follow the
common, skewed portrayal of the dignified primarily white, Christian, developed states.
34
Powell, Lewis (1971). Attack on American free enterprise system. Snail Darter Documents Paper 79.
http://lawdigitalcommons.bc.edu/darter_materials/79 [accessed 14 May 2020]
35
Peabody, Fred (director) (2019). The Corporate Coup d’Etat (film). New York: First Run Features.
36
Cohen, Adam (2020). Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America.
New York: Penguin Press.
37
Hedges, Chris & Sacco, Joe (2012). Days of destruction, days of revolt. New York: Bold Type Books, p. 291.
38
International Criminal Court (2020). Situations under investigation. https://www.icc-cpi.int/pages/situation.aspx
[accessed 13 May 2020]. Ten of thirteen investigations involve African countries.
Believing the false narrative of open borders in Western liberal democracies, migrants are often
unprepared for the maltreatment they endure in asylum detention centers – essentially prisons –
which remain in operation despite UN criticisms39. The combination of heavy-handed foreign
policy and regressive immigration policies in countries with genocidal and overtly racist
histories, and the contemporaneous scrutiny of complex conflicts in poorer and non-white
nations has led some commentators to consider the international order itself as biased in favor of
European and American, or Western, interests40.
Rule of law v. rule of power
The historical significance of the United Nations Charter cannot be understated in terms
of its magnitude. The Charter had been endorsed by plenipotentiaries representing the entire
world’s people – nothing short of a revolutionary event. Upon inaugurating the UN and the
International Court of Justice (ICJ), the world’s people, via their national delegations, gave birth
to a forum for discourse, research, treaty composition and registry, negotiation, and dispute
resolution. The UN Treaty System oversees more than 500 agreements among its 193 members41.
Every treaty in the collection relies on the pacta sunt servanda principle expressed in the
Charter42 and later expounded Vienna Convention on the Law of Treaties43. Unfortunately,
absent member states’ good faith performance of treaty obligations, the international community
left itself little recourse against noncompliant states since sovereign equality and non-
intervention were foundational principles of the novus ius gentium. So, while the UN personifies
marked divergence from history due to its scope and reach, its potency is still debatable.
Former US Secretary of State Henry Kissinger worried that “while the international
community is invoked perhaps more insistently now than in any other era, it presents no clear or
agreed upon a set of goals, methods, or limits”.44 His detailed account of international orders
from Westphalia through the early 21st century depicted a similar fault in each iteration of the
Eurocentric Westphalian system, where nations only feigned concern about sovereignty of others
until there arose an excuse to lurch into war again. Peacetime status quo through centuries have
been wrought with manic suspicion of others; mutual spying proliferated, the intrusions justified
by the belief that everybody did it – and certainly the powerful did. Sabotage and coercion were
methodological virtues in the midst of diabolical economic competition where countries
constantly prepared for war in spite of their stated intention to disengage. Similar to Mao Tse-
Tung’s concept of “continuous revolution”45, European leaders repeatedly restructured

39
UNHCR (2018). UNHCR urges Australia to evacuate off-shore facilities as health situation deteriorates.
https://www.unhcr.org/news/briefing/2018/10/5bc059d24/unhcr-urges-australia-evacuate-off-shore-facilities-health-
situation-deteriorates.html [accessed 13 May 2020]; UNHCR (2019). UNHCR deeply concerned about new U.S.
asylum restrictions. https://www.unhcr.org/news/press/2019/7/5d2cdf114/unhcr-deeply-concerned-new-asylum-
restrictions.html [accessed 13 May 2020];
40
Turner, Mandy (2019). ‘The West’ and ‘the rest’ in international interventions: Eurocentrism and the competition
for order. Conflict, Security & Development, 19(3), 237—243.
https://www.tandfonline.com/doi/full/10.1080/14678802.2019.1608014 [accessed 13 May 2020]
41
United Nations Treaty System (2020). https://treaties.un.org/ [accessed 14 May 2020]. A search for treaties in
force from 24 Oct 1945, the UN inauguration day, through 13 May 2020 yielded 501 agreements in force.
42
Art. 2(2), “All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall
fulfill in good faith the obligations assumed by them in accordance with the present Charter.”
43
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (1969), at art. 26, “Every treaty in force is binding
upon the parties to it and must be performed in good faith.”
44
Kissinger, Henry (2014). World Order. New York: Penguin Books, at p.2
45
Schram, Stuart R. (1971). Mao Tse-tung and the Theory of the Permanent Revolution, 1958–69. The China
Quarterly, 46, 221—244. doi:10.1017/s0305741000010675 [accessed 14 May 2020]
agreements over centuries leading to WWII. Each new version was like a high-stakes poker
match where perhaps all players were bluffing, parties each banking on their own win in a
complex zero-sum game; that is, until one of the players decided to call another a cheat and start
shooting under the pretense of protecting his honor and that of the game. If the success of the
current international order hangs on each country’s independent and voluntary submission to
universal standards of conduct, it would certainly help if there were some agreement about what
those standards are. Without a common vision, we ultimately have a free-for-all where each
party sets their own rules as much as possible.
Nowhere is the lack of common ideals more palpable than in the realm of war. “War
turns human reality into a bizarre carnival that does not seem part of our experience,” says
Hedges, who spent nearly 20 years as a foreign correspondent in hot-zones in Central America,
the Middle East, Balkans, and Africa46. He continues, “War breaks down long-established
prohibitions against violence, destruction, and murder…rape, mutilation, abuse, and theft are the
natural outcome of a world in which force rules, in which human beings are objects”.47 When at
war, Hedges explains, “one defines oneself [and own people] mostly by what the [enemy] is
not”48. The metacognitive processes employed to manufacture parti pris “Us and Them”
dichotomies enable “Us” to ignore and support of cruelty perpetrated against “Them” while
synchronously mourning the destruction “They” inflicted upon “Us”. Indeed, when the enemy is
a mere animal to be slaughtered without remorse or consideration for their loved ones while
every injury and casualty from one’s own side holds immeasurable value and honor, common
principles will remain elusive.
Standards of behavior during wartime, or ius in bello, have not yet solidified in practice
among parties to armed conflicts. A prime example is John Kerry’s 1971 testimony before the
US Senate, where he spoke on behalf of Vietnam veterans who had “personally raped, cut off
ears, cut off heads, taped wires from portable telephones to human genitals and turned up the
power, cut off limbs, blown up bodies, randomly shot at civilians, razed villages in fashion
reminiscent of Genghis Khan, shot cattle and dogs for fun, poisoned food stocks, and generally
ravaged the country side of South Vietnam in addition to the normal ravage of war”49. Kerry’s
choice of words ensured this portion would be inadmissible hearsay under the Federal Rules of
Evidence50, but taken at face value it amounted to a confession that the military had been
violating the Geneva Conventions51 in Vietnam, which Mr. Kerry’s later lamented. “[The
American armed forces] are more guilty than any other body of violations of those Geneva
Conventions, in the use of free fire zones, harassment interdiction fire, search and destroy
missions, the bombings, the torture of prisoners, the killing of prisoners, [which were all]
accepted policy by many units in South Vietnam,” Kerry implored the Senators in attendance to
take action to ensure their nation’s observance of positive law. But Kerry’s pleas went unheeded
as the military industrial complex went back to work, obedient to the laws of power and force
inasmuch as could be rationalized.

46
Hedges, Chris (2002). War is a force that gives us meaning. Oxford: Public Affairs, at p74.
47
Ibid at 103.
48
Ibid at 32.
49
Kerry, John (1971). Quote from the U.S. Senate Committee on Foreign Relations, “Legislative proposals relating
to the war in Southeast Asia.” Text from Winter Soldier. http://www.wintersoldier.com/index.php?topic=Testimony
[accessed 14 May 2020]
50
Fed. R. Ev. 801—03.
51
Geneva Convention Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135 (1949); Geneva Convention
Relative to the Protection of Civilian Persons in Times of War, 75 U.N.T.S. 287 (1949).
 Law in war, or ius in bello, is something of an oxymoron – never has there been a “clean”
war. Even as the Great Powers tried, convicted, and executed Nazi conspirators at Nuremberg52
the elephant of duplicity lurked in the room. Allied troops had committed a litany of abuses53
though to a much lesser extent than Axis powers, and brutality among Allies neither annuls their
victory nor makes them morally equivalent to Axis forces; it does, however, give some
impression of unclean hands. To the winner go the spoils, the appreciation and the accolades; to
the losers, the scorn and shame. Such banal old chestnuts are still valid as American Attorney
General Barr recently reaffirmed that “history is written by the winners”54. Barr’s attestation to
the longevity of law of the jungle is reflected in behaviors around the world, where armed
conflicts never live up to their “surgical” or “sterile” billing. Civilian casualties are inexorable as
bullets, mortar, artillery, and aircraft ordnance rip through cityscapes. According to one report,
“collateral damage” in Syria amounted to 226,247 noncombatant deaths between 2011 and 2020.
There were another 14,391 deaths due to torture, and 146,825 arbitrary arrests or forced
disappearances in Syria in the same period55. In 2019, worldwide civilian deaths and injuries by
explosive weapons were estimated at 19,407, or two-thirds of all such casualties, with the highest
numbers in Syria, Afghanistan, Yemen, Somalia, and Libya56. The death toll extends well
beyond the grotesque exenteration of flesh that explosive weapons cause. Reports suggest light
arms are responsible for 90% of all casualties, claiming the lives of half a million or more
civilians in conflicts each year57, many of which could be prevented if there were reasonable
controls on arms sales. Delegates at the UN have called for reduction in illicit arms sales, but
with more than one billion illegal small arms and light weapons58 in circulation around the
world59, fleeing home in search of refugee status seems to be a rational decision though it does
not bode well for the status of our international order. “Seventy years on from the Geneva
Conventions,” Amnesty International’s Tirana Hassan says, “to have 70 million human beings
displaced by wars and other violence reflects the catastrophic failure of world leaders to protect

52
Nuremberg judgment, France and ors v Göring (Hermann) and ors, 22 IMT 203 (1946).
53
Lawlor, Ruth (2019). When comemorating D-Day, don’t forget the dark side of American war efforts.
https://www.washingtonpost.com/outlook/2019/06/06/when-commemorating-d-day-dont-forget-dark-side-american-
war-efforts/ [accessed 14 May 2020]
54
Beauchamp, Zack (2020). Bill Barr’s revealing defense of the Flynn decision. https://www.vox.com/policy-and-
politics/2020/5/8/21251997/bill-barr-michael-flynn-history [accessed 14 May 2020]
55
Syrian Network for Human Rights (2020). Civilian death toll. http://sn4hr.org/blog/2018/09/24/civilian-death-toll/
[accessed 14 May 2020]
56
Action on Armed Violence (2020). Explosive violence in 2019. https://reliefweb.int/report/world/explosive-
violence-2019 [accessed 14 May 2020]
57
Shah, Anup (2006). Small arms – they cause 90% of civilian casualties.
https://www.globalissues.org/article/78/small-arms-they-cause-90-of-civilian-casualties [accessed 14 May 2020];
United Nations General Assembly (2019). States call for enhanced arms control strategies to regulate ‘killer
robots’, stem rising tide of illegal weapons, delegates tell first committee, GA/DIS/3635.
https://www.un.org/press/en/2019/gadis3635.doc.htm [accessed 14 May 2020]
58
Small arms include pistols, rifles and carbines, assault rifles, submachine guns, light machine guns; light weapons
include heavy machine guns, handheld grenade launchers, portable anti-aircraft and anti-tank guns, recoilless rifles,
portable anti-tank and anti-aircraft missile and rocket systems, and mortars of calibers less than 100mm. Definition
from Small Arms Survey (2020). http://www.smallarmssurvey.org/weapons-and-markets/definitions.html [accessed
16 May 2020]
59
United Nations Security Council (2020). Spread of 1 billion small arms, light weapons remains major threat
worldwide, High Representative for Disarmament Affairs tells Security Council, SC/14098.
https://reliefweb.int/report/world/spread-1-billion-small-arms-light-weapons-remains-major-threat-worldwide-high
[accessed 16 May 2020]
them”.60 None can posit lucid argument that a world where 70 million people were involuntarily
displaced in 2018 – twice as many as in 199861 – is a world bound by any law other than that of
the jungle.
Laws in war, from start to finish are inherently contradictory to principles of civility and
mutual respect. Whereas the de facto rule in Iraq and Afghanistan, for example, is that nationals
of those countries may not take up arms to repel their armed interlopers who, despite lack of
capacity under domestic law to enforce any law in those territories, have usurped local executive
powers to search, seize, arrest, imprison, and execute Iraqi and Afghani citizens without due
process. While the foreign invaders actively exercise their tautological authority to
extraterritorially prosecute open-ended missions abroad, the armed forces of Iraq and
Afghanistan are both effectively enjoined from self-defense at home and from launching counter-
invasions on American or British or other coalition soil. If Iraq deployed troops into the United
States, American civilians and security forces would exercise natural and positive legal rights to
defend themselves against intruders though few of those Americans who would take up arms in
defense of the homeland believe the same right is extended to Iraqis in Iraq. Such is the defective
logic of “Us and Them”. Territorial integrity, inviolability of national borders, and exclusive
control within national borders by the domestic sovereign are fundamental principles of
international law62, but citizens of occupied territories can certainly attest to the fact that such
formal rules are not universally applied. In matters of armed conflict, the unfortunate truth is that
power reigns supreme; with rare exception, the winners frame the narrative, and there is no
effective forum nor mechanism that can provide remedy to victims.
The Iraqi war is particularly antithetical to the proposition that the international order
respects the rule of positive law pertaining to the right to war, or ius ad bellum. The UN Security
Council Resolution 1441 was founded on false or misleading intelligence and did not authorize
use of force63. While anticipatory self-defense is a debatably legitimate cause for use of force, the
justification for invasion of Iraq turned on the “imminence” of catastrophic threat posed by
fictional weapons of mass destruction. Even if there had been raw materials and a rudimentary
uranium enrichment program, the invasion may have failed to meet the proportionality
requirement for a pre-emptive strike64 considering that some 200,000 Iraqi civilians, 40,000
national military and police, and 40,000 opposition fighters lost their lives65. In the years

60
Amnesty International (2019). UN: Catastrophic failure as civilians ravaged by war violations 70 years after
Geneva Conventions. https://www.amnesty.org/en/latest/news/2019/05/un-catastrophic-failure-as-civilians-ravaged-
by-war-violations-70-years-after-geneva-conventions/ [accessed 14 May 2020]
61
Edwards, Adrian (2019). Global forced displacement tops 70 million.
https://www.unhcr.org/news/stories/2019/6/5d08b6614/global-forced-displacement-tops-70-million.html [accessed
14 May 2020]
62
United Nations General Assembly, Declaration on Principles of International Law concerning Friendly Relations
and Cooperation among States in accordance with the Charter of the United Nations, A/RES/2625(XXV) (1970);
Van Der Vyver, Johan (2013). Ch. 16 Sovereignty, in The Oxford Handbook of International Human Rights Law,
Shelton, Dinah (ed.). Oxford: Oxford Scholarly Authorities on International Law.
63
United Nations Security Council Resolution, S/Res/1441 (2002).
https://www.un.org/Depts/unmovic/documents/1441.pdf [accessed 14 May 2020]
64
Bethlehem, Daniel (2012). Self-defense against an imminent or actual armed attack by nonstate actors. American
Journal of International Law, 106(4), 770—777. https://www.un.org/law/counsel/Bethlehem%20-%20Self-Defense
%20Article.pdf [accessed 14 May 2020]
65
Crawford, Neta (2018). Human cost of the post-9/11 wars: Lethality and the need for transparency.
https://watson.brown.edu/costsofwar/files/cow/imce/papers/2018/Human%20Costs%2C%20Nov
%208%202018%20CoW.pdf [accessed 14 May 2020]
following the invasion, numerous delegations to the UN from around the world66, UN weapons
inspector Hans Blix67 and Secretary General Kofi Annan68, former and current US69 and UK
politicians70, and legal scholars have declared the occupation illegal. In a world where the strong
do what they can and the weak do what they must, there is little hope that the culprits will be
held to a standard other than their own. The ICC is the only international trial forum for
prosecuting war criminals, but it requires states voluntary submit to the process, which begs the
question – why would the guilty deliberately surrender after they went to all the trouble to make
their crimes appear to be by-the-book lawful behavior?
To those faithfully obedient to the law, combatant behaviors ad bellum or in bello and
thereafter may seem counterintuitive. Truly, it runs contrary to commonsense that somehow by
eviscerating and immolating bodies in the tens of thousands, and by reducing otherwise
inhabitable cities to piles of concrete and rebar-strewn rubble, the result would be glorious
reconstitution of society, or that some shared transcendental vision would materialize and things
would be in any way better after all the death and destruction. Hedges summarized the
disillusionment of the battlefield with an anecdote about a Marine Corps lieutenant in Kuwait
who told him, “none of these boys are fighting for home, for the flag, for all that crap the
politicians feed the public. They are fighting for each other, just for each other”.71 Once the
snowball gets rolling, it is hard to stop it from turning into an avalanche, which is why rule of
positive law and a bona fide international order are of great consequence.
In 1970, the UN General Assembly reaffirmed its support for international legal
principles of sovereign immunity, territorial integrity, and inviolable borders. Just three years
later, Pink Floyd released perhaps the greatest rock and roll album ever with a track entitled “Us
and Them” whose lyrics elucidate the stubbornness of the old order of power and force:
“Forward he cried from the rear, and the front rank died, and the general sat, and the lines on the
map moved from side to side”.72 Ambassadors have on numerous occasions agreed upon various
guarantees, including that “every state has the duty to refrain from the threat or use of force to
violate international lines of demarcation,”73 but selective attention to and application of positive
doctrine has time and again led to redrawing of borders. Israel, for example, continues to expand
its territorial reach into Palestine apparently under the “We were here first” principle.
Meanwhile, the UN and innumerable onlookers rebuke Israel for their flagrant violations of

66
United Nations (2003). Security council holds first debate on Iraq since start of military action; speakers call for
halt to aggression, immediate withdrawal. https://www.un.org/press/en/2003/sc7705.doc.htm [accessed 14 May
2020]
67
BBC (2010). Iraq inquiry: Former UN inspector Blix says war illegal. https://www.bbc.com/news/uk-politics-
10770239 [accessed 15 May 2020]
68
MacAskill, Ewen & Borger, Julian (2004). Iraq war was illegal and breached UN charter, says Annan.
https://www.theguardian.com/world/2004/sep/16/iraq.iraq [accessed 15 May 2020]
69
Bowden, John (2019). Omar slams US war in Iraq on anniversary of invasion.
https://thehill.com/homenews/house/434929-omar-slams-us-invasion-of-iraq-on-anniversary [accessed 15 May
2020]
70
Hughes, David (2016). Chilcot report: John Prescott says Iraq war was illegal.
https://www.independent.co.uk/news/uk/politics/chilcot-report-john-prescott-says-tony-blair-led-uk-into-illegal-war-
in-iraq-a7129106.html [accessed 15 May 2020]
71
Hedges, Chris (2002). War is a force that gives us meaning. Oxford: Public Affairs, at p38.
72
Waters, Roger (1973). Us and them. Dark side of the moon [album]. London: Abbey Road Studios.
73
United Nations General Assembly, Declaration on Principles of International Law concerning Friendly Relations
and Cooperation among States in accordance with the Charter of the United Nations, A/RES/2625(XXV) (1970)
international law proper74. In 2008, the European Union reiterated, “settlement building
anywhere in the occupied Palestinian Territories, including East Jerusalem, is illegal under
international law,”75 but the UN system lacks an effective enforcement mechanism beyond the
Security Council where Israel’s allies would veto any action. As a result, the only means for
peaceful reform is to object and hope the offending sovereign state alters its practice.
Willful noncompliance with allegedly binding judgements rendered in international
dispute resolution forums has delegitimized the rule of law. The ICJ was meant to be a venerable
forum for binding interstate dispute resolution, but it is little more than an advisor in practice.
Article 59 of the Statute of the Court76 and Article 94 of the UN Charter77 positively express that
once a state submits to the jurisdiction of the Court, it undertakes to comply with any decision to
which it is a party, but in reality, decisions are only binding inasmuch as state parties are willing
to carry out orders. The option to disregard ICJ orders is found in the case of Nicaragua v.
United States78. The US initially submitted to the jurisdiction of the Court, and then during
hearings it withdrew from the case and deposited a notification that it would not recognize
jurisdiction. Hearings proceeded despite American objections, the US was judged in absentia,
and later consciously and willfully failed to pay reparations as ordered. Similar to the ICJ, the
Permanent Court of Arbitration and other arbitral institutions were meant to be distinguished
venues for resolution of disputes pertaining to treaty or other contracts. Arbitral awards are final
and binding under the New York Convention79 – one of the most commonly ratified treaties in
the UN collection. Nevertheless, permanent members of the Security Council – China80, Russia81,
and United Kingdom82 – followed America’s lead and rejected tribunal decisions against them83.
Much like Israel’s Jewish population claims historical ownership of land now in Palestine,
China’s arbitration case involved expansion of its territory into the South China Sea, which it
claimed had belonged to China throughout history, and thus the post-WWII demarcation of
territorial waters and contemporary application of the Convention on the Law of the Sea84 were
erroneous and invalid. Similarly, Russia forcefully annexed the Crimean peninsula of Ukraine,
arguing a historical claim dating back to the 18th century85. A final appeal is available under
international law via the Security Council, but permanent members can veto resolutions relating
74
UN News (2019). Israeli settlements remain ‘flagrant violation’ of international law, UN envoy tells Security
Council. https://news.un.org/en/story/2019/11/1051781 [accessed 15 May 2020].
75
United Nations (2008).
European Council – Middle East Peace Process – Council conclusions – Non-UN document (excerpts).
https://www.un.org/unispal/document/auto-insert-193645/ [accessed 15 May 2020]
76
Statute of the International Court of Justice, 59 Stat. 1055, 33 U.N.T.S. 933 (1945), art. 59, “The decision of the
Court has no binding force except between the parties and in respect of that particular case”. https://www.icj-
cij.org/en/statute [accessed 15 May 2020]
77
United Nations, Charter of the United Nations, 1 UNTS XVI (1945), art. 94(1), “Each Member of the United
Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a
party.” https://www.un.org/en/sections/un-charter/un-charter-full-text/ [accessed 15 May 2020]
78
International Court of Justice, Case Concerning the Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States of America), 1986 I.C.J. 14 (1986).
79
Convention on the Mutual Recognition and Enforcement of Arbitral Awards, 330 U.N.T.S. 3 (1958), art. III.
80
Permanent Court of Arbitration, The South China Sea Arbitration (Philippines v. China), 2013-19 (2016).
81
Permanent Court of Arbitration, The Arctic Sunrise Arbitration (Netherlands v. Russia), 2014-02 (2017).
82
Permanent Court of Arbitration, Chagos Marine Protected Area (Mauritius v. United Kingdom), 2011-03 (2015).
83
Ibarra, Edcel (2017). Probing the (im)possibility of China’s compliance with the South China Sea arbitration
award, Foreign Service Institute Insights, IV(2). http://www.fsi.gov.ph/probing-the-impossibility-of-chinas-
compliance-with-the-south-china-sea-arbitration-award/ [accessed 15 May 2020]
84
Convention on the Law of the Sea, 1833 U.N.T.S. 397 (1982).
to their own interests which prioritize tangible power (land, capital, resources, influence) over
intangible philosophical virtues (fairness, equality, transparency, integrity).
Offensive economies in defense
Terms like “war-profiteer” may seem cynical, but conflicts depend on firepower, and the
tools of state militaries, private militias, and nonstate actors are not free. The greater the number
of conflicts and threat thereof, the greater the demand for weapons; more war equals more profits
for manufacturers and distributors. Official statistics indicate the United States and Russia supply
about 70 percent of all major arms sales (tanks, aircraft, missiles, tactical weapons systems)86.
Publicly-traded defense contractors in the US have fared quite well since 9/11 – General
Dynamics’ stock price trebled, Raytheon’s nearly quintupled, Northrop Grumman’s grew by
more than a factor of six, and Lockheed Martin’s share value increased by nearly 900 percent87.
In the same period, global military spending increased by about 64 percent88, suggesting
American companies must have aggressively expanded their market share and profitability to
witness rises in equity value many times greater than rises in overall market value, which neared
$2 trillion in 2019. International transfer of major conventional weapons is associated with
longer and deadlier conflicts89, but that only increases the longevity of companies in the business
of war.
A world ruled by laws of the jungle needs plenty of firepower for the strong to enforce
their will on the weak. Formerly a businessman, Donald Trump intuited the importance of the
arms trade from the start, making his first foreign visit as President was to Saudi Arabia – the top
customer of the top arms supplier in the world90 – where he inked a $110 billion defense deal91.
Like many Republicans, the National Rifle Association’s (NRA) Political Victory Fund has a
favorable view of Trump92, whose voters often identify with Second Amendment issues. The
Trump administration loosened regulations on exports of small arms, which the NRA’s Institute
for Legislative Action (NRA-ILA) considered “a boon to the United States firearms industry and
all who utilize its products”.93 While it is true that prior regulations have failed to impede the

85
Pifer, Steven (2020). Crimea: Six years after illegal annexation. https://www.brookings.edu/blog/order-from-
chaos/2020/03/17/crimea-six-years-after-illegal-annexation/ [15 May 2020]
86
Stockholm International Peace Research Institute (2019). Global arms industry rankings: Sales up 4.6 percent
worldwide and US companies dominate the top 5. https://www.sipri.org/media/press-release/2019/global-arms-
industry-rankings-sales-46-cent-worldwide-and-us-companies-dominate-top-5 [accessed 15 May 2020]
87
Searches for GD, RTX, NOC, and LMT from 10/2001 through 5/2020 conducted via CNBC,
https://www.cnbc.com/quotes/
88
Stockholm International Peace Research Institute (2020). SIPRI military expenditure database 2001—2020.
https://www.sipri.org/databases/milex [accessed 15 May 2020]. Total military spending for reporting nations grew
from $1.13 trillion in 2001 to $1.87 trillion in 2019. Data was formulated using constant 2018 $US.
89
Moore, Matthew (2014). Selling to both sides: The effects of major conventional weapons transfers on civil war
severity and duration. International Interactions: Empirical and Theoretical Research in International Relations,
38(3), 325—347. http://dx.doi.org/10.1080/03050629.2012.676511 [accessed 17 May 2020]
90
Czejdo, Izabella & Abramson, Jeff (2019). U.S., Saudi arms transfers tops global trade.
https://www.armscontrol.org/act/2019-04/news/us-saudi-arms-transfers-top-global-trade [accessed 16 May 2020]
91
The White House (2017). President Trump and King Salman sign arms deal.
https://www.whitehouse.gov/articles/president-trump-king-salman-sign-arms-deal/ [accessed 16 May 2020]
92
A search for “Donald Trump” at the NRA-PVF yields press releases praising Trump nominee for Supreme Court,
Neil Gorsuch; Trump’s appearance at the 2019 NRA-ILA leadership forum; and the NRA’s political campaigns
against Democrats. National Rifle Association Political Victory Fund (2020). https://www.nrapvf.org/search/
[accessed 16 May 2020]
93
NRA-ILA (2020). Trump administration publishes historic rulemaking to modernize America’s firearms export
regime. https://www.nraila.org/articles/20200127/trump-administration-publishes-historic-rulemaking-to-
flow of arms into conflict zones, market deregulation is nearly assured to cause and contribute to
more and deadlier conflicts. Afterall, the products manufactured at companies like Glock, Colt,
FN Herstal, Beretta, Barret, Springfield Armory, Heckler and Koch, and Savage Arms are
designed to kill people quickly, efficiently, repeatedly, and reliably. “These are the weapons of
the easy kill,” said UN High Commissioner for Human Rights Zeid Ra’ad al Hussein, “the most
portable, most easily accessible, most casual instruments of death — even a small child can, with
its tiny muscles, vanquish a life”.94 Child soldiers may be part of that “boon” to the firearms
industry the NRA-ILA was so excited about.
Annual licensed small arms sales from more than 1,000 companies in almost 100
countries exceed $8.5 billion95 with another $1 billion or so in illicit market trade96, which is
dwarfish compared to multi-trillion dollar market in major arms, but guns claim more lives than
heavy conventional weaponry. While private and public press offices troll taxpayers with scares
of nuclear bombs, small and light arms claim 90 percent of lives lost in conflicts – more than
500,000 souls annually97. The UN Office on Drugs and Crime98 found firearms – handguns most
notably – are the most common weapon used in homicides worldwide. Between 2011 and 2017,
the total number of homicides increased (from 437,000 to 463,000) alongside the share of
homicides involving guns (from 41 percent to 54 percent) while gun sales increased in the same
period. In 2015, Secretary-General Ban Ki-moon urged nations, “Deny access to illegal weapons
and ammunition, and you deny criminals, armed groups and extremists a central means to
perpetrate violence, intimidation and harm”.99 The Arms Trade Treaty intended to prevent,
disrupt, and eradicate the illicit arms trade, but outside the European Union, none of the major
manufacturing countries became parties100. With business booming and governments reluctant to
restrain free market activity, the result is proliferation of both weapons and casualties.
Growing arms exports pose risks of more diversion of weapons into the black markets
and increased possession by dangerous groups. Unfortunately, there is no singular or simple
culprit responsible for free-flowing illicit small and light arms. In a globalized arms trading
community, weapons are impossible to track after first sale, and they may flow through multiple
intermediary nations before becoming useful in a conflict. Higher quality used weapons with
longer lifespans may funneled again through multiple brokers and states on their way to criminal
organizations, rebel groups or other combatants who may purchase an AK-47 for as little as

modernize-america-s-firearm-export-regime [accessed 16 May 2020]

94
United Nations Security Council (2015). Human cost of illicit flow of small arms, light weapons stressed at
Security Council debate. https://www.un.org/press/en/2015/sc11889.doc.htm [accessed 16 May 2020]
95
Small Arms Survey (2020). Weapons and markets. http://www.smallarmssurvey.org/weapons-and-markets.html
[accessed 16 May 2020]
96
United Nations Security Council (2015). Human cost of illicit flow of small arms, light weapons stressed at
Security Council debate. https://www.un.org/press/en/2015/sc11889.doc.htm [accessed 16 May 2020]
97
Delattre, Francois (2017). Small weapons claim the highest number of victims. Permanent Mission of France to the
United Nations in New York. https://onu.delegfrance.org/Small-weapons-claim-the-highest-number-of-victims
[accessed 16 May 2020]
98
UNODC (2013). Global study on homicide: Trends, contexts, and data, p. 65.
https://www.unodc.org/documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_web.pdf [accessed 16 May
2020]; UNODC (2019). Global study on homicide: Executive summary, p. 19. UNODC: Vienna.
https://www.unodc.org/documents/data-and-analysis/gsh/Booklet1.pdf [accessed 16 May 2020]
99
United Nations Security Council (2015). Human cost of illicit flow of small arms, light weapons stressed at
Security Council debate. https://www.un.org/press/en/2015/sc11889.doc.htm [accessed 16 May 2020]
100
Arms Trade Treaty, 3013 U.N.T.S. (2013).
$15.101 Like any other aspect of global trade, multiple countries and countless personnel are
directly and indirectly involved in arms transfers. Most of the Syrian government’s stockpile of
weapons originated in Russia, but they were transported through third parties such as Iran,
Belarus, China, and North Korea. Syrian opposition groups obtained weapons by capturing
national military inventories, purchasing from illicit dealers in Libya and elsewhere, and from a
collection of foreign nations interested in toppling the Assad regime. Opposition groups built a
formidable arsenal with financing from Qatar and Saudi Arabia, and with further assistance from
Croatia, Israel, Jordan, Turkey, the United Arab Emirates, and US in arms purchases and
transportation.102
While a multitude of intervening and participating states bear some collective and
individual responsibility for bloodshed wrought by the surplus of global arms in circulation, no
governments have been as influential as Washington and Moscow. Beginning immediately after
conclusion of WWII, the once-allied Great Powers turned rival superpowers and engaged in
protracted, grueling campaigns that distorted reason and undermined the integrity of the new
international order. American and Soviet (USSR) governments sponsored proxy wars around the
world throughout the Cold War, resulting in destabilized governments and economies. Major
campaigns in Korea and Vietnam cost millions of civilian and combatant lives, while other
conflicts resulted in fewer bodies but similarly decimated Guatemala, Honduras, Nicaragua,
Cuba, the Dominican Republic, Cambodia, Laos, Afghanistan, Congo, Angola, Ethiopia,
Somalia, Namibia, South Africa and elsewhere103. The US government funded anti-communist
paramilitaries in Nicaragua in part with funds secured by dealing arms to both sides of the Iran-
Iraq war. Despite President Reagan’s famous inability to remember any mention of the Iran-
Contra scandal during his time in office104, David Crist gave clear and detailed examination of
official records in The Twilight War105, leaving no doubt that Reagan had known about and
approved of the Iran-Contra affair. Nicaragua later sued the US at the ICJ for its role in
paramilitary activities threatening the security of a sovereign state, and the US disregarded
international law as much in its handling of the case as it did with its clandestine operations in
Nicaragua106.
From time to time, major suppliers of arms end up dealing to their future enemies. As
Soviets moved through Afghanistan in the early-1980s, American congressman Charles Wilson
devised a mission to supply mujahideen with light arms, such as shoulder-held rocket propelled
grenades they could use to shoot Soviet helicopters. The plan worked, except many of the
Islamists whom Wilson armed later became the Taliban who harbored Osama bin Laden and
101
Humphreys, Macartan (2003). Economics and violent conflict.
https://www.unicef.org/socialpolicy/files/Economics_and_Violent_Conflict.pdf [accessed 17 May 2020]
102
Dick, Shannon (2019). The arms trade & Syria. Georgetown Journal of International Affairs.
https://www.georgetownjournalofinternationalaffairs.org/online-edition/2019/9/2/the-arms-trade-and-syria
[accessed 17 May 2020]
103
Luard, Evan (1988). Conflict and peace in the modern international system: A study of principles of international
order. Albany: State University of New York, p41; Atomic Heritage Foundation (2018). Proxy wars during the
Cold War: Africa. https://www.atomicheritage.org/history/proxy-wars-during-cold-war-africa [accessed 17 May
2020]
104
Cawley, Janet & Campbell, Linda (1990). Reagan hazy on Iran-Contra.
https://www.chicagotribune.com/news/ct-xpm-1990-02-23-9001160156-story.html [accessed 17 May 2020]. Reagan
said “I do not recall” or “I can’t remember” 88 times during an eight hour testimony.
105
Crist, David (2012). The Twilight War. New York: Penguin Press, p. 175—202.
106
Bilder, Richard (1991). The United States and the world Court in the post-“Cold War” era. Catholic University
Law Review, 40(2). https://scholarship.law.edu/lawreview/vol40/iss2/3 [accessed 17 May 2020]
fought with enough tenacity to keep the US at war for two decades in Afghanistan107. An even
more complicated situation in eastern Ukraine involved Russia smuggling Ukrainian-
manufactured Soviet era weapons to Russian-backed separatists in Ukraine who were fighting
Ukrainian military and militia forces whose weapons stockpiles were mainly Russian and Soviet.
Both sides of the conflict had a hand in manufacturing weapons for the other side. Some
speculate a motive for the Russian invasion was to acquire military industrial facilities that
Russia relies upon in its continued stockpiling and trading of arms.108 Still, legal blunders are
rarely as spectacular as “Operation Fast & Furious” wherein the American Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) trafficked nearly 2,000 firearms across the Mexican
border and into the hands of drug cartel members. Two of those firearms were found at the scene
of the murder of a US Customs and Border Protection Agent, and only after that homicide were
any arrests made in the case109. Untold numbers of Mexican civilians and government forces
could have lost their lives due to the ATF’s illegal transnational shipments of guns. There are
remarkably few options available to curb the flow of illicit arms when the people charged with
preventing and suppressing the trade make it an official mission to partake in it.
The manufacture and sale of one particular type of weapon has to some extent been
restricted, albeit with some specious caveats. Under increased pressure to disarm, governments
gave up nuclear ambitions in Argentina, Taiwan, South Korea, Japan, Sweden, Syria, Egypt, and
Algeria. Existing arsenals were dismantled in South Africa, Libya, Ukraine, Kazakhstan, and
Belarus110, but disarmament progress has stalled since the noughts. To the skeptical eye, rules in
nuclear armament may appear like a famous cliché: do as I say, not as I do. The UN General
Assembly First Committee pilloried the situation, “Double standard in disarmament, by which
some countries had to disarm while others did not, was inexcusable.”111 Frankly, the ostensible
logic has been that nukes are perfectly acceptable for the powerful permanent members of the
Security Council even though they possess 97 percent of the global inventory112, and one of their
members is the only country to ever use the technology. Indian nuclear arms are not a major
concern to other nuclear powers, except rival Pakistan, whose arsenal kept President Obama up
at night113 even though a Pakistani nuclear conflict would presumably only result with India, and
in such a case, it would be bilateral usage, and who would fire first is uncertain. Western
governments rarely mention Israeli inventories, yet Iranian ambitions to develop a weapon draw
their full attention, especially in Washington where the pro-Israel lobby is a significant political

107
Crile, George (2003). Charlie Wilson’s War: The extraordinary story of the largest covert operation in history.
New York: Atlantic Monthly Press.
108
Johannesson, Jokull (2017). Russia’s war with Ukraine is to acquire military industrial capability and human
resources. Journal of International Studies, 10(4), 63—71. https://www.jois.eu/files/4_407_Johannesson.pdf
[accessed 17 May 2020].
109
U.S. Department of Justice, Office of the Inspector General (2012). A review of ATF’s Operation Fast and
Furious and related matters (redacted). https://oig.justice.gov/reports/2012/s1209.pdf [accessed 17 May 2020]
110
Graham, David (2009). Nations that gave up on nuclear bombs. https://www.newsweek.com/nations-gave-
nuclear-bombs-78661 [accessed 19 May 2020]
111
United Nations General Assembly First Committee (2003), Disarmament ‘double standards’, small arms threat
among issues raised, as First Committee concludes General Assembly debate, GA/DIS/3256.
https://www.un.org/press/en/2003/gadis3256.doc.htm [accessed 19 May 2020]
112
Arms Control Association (2019). Nuclear weapons: Who has what at a glance.
https://www.armscontrol.org/factsheets/Nuclearweaponswhohaswhat [accessed 16 May 2020]
113
McKelvey, Tara (2016). What is ‘big problem’ Obama supposedly shared with Trump?
https://www.bbc.com/news/world-us-canada-38176047 [accessed 16 May 2020]
donor114. Senior Research Scholar at the Saltzman Institute of War and Peace Studies, Kenneth
Waltz argued, “It is Israel’s nuclear arsenal, not Iran’s desire for one, that has contributed most
to the current crisis.”115 Just as Obama fretted about Pakistani missiles, North Korean leaders
may lay awake at night due to their perceived threat the US and its enormous nuclear arsenal
poses to the pseudo-Maoist-Marxist country. Citing that threat, North Korea undertook to even
the playing field by developing a nuclear weapon of its own116.
Verily, a fully transparent world order would recognize the absurdity of nuclear arsenals
in the United States and Russia, whose stockpiles account for over 90 percent of the nearly
14,000 weapons around the world today – nukes which pose a real or apparent threat to the
security of sovereign states around the world.117 Granted, the Nuclear Non-Proliferation Treaty118
(NPT) has been mildly successful in accomplishing something: motivating the United States and
Russia (formerly USSR) to reduce their arsenals from Cold War levels. At the height of the
nuclear arms race, just prior to the NPT, the global inventory stood at roughly 30,000 – nearly all
of which belonged to the US and USSR. If NPT were intended to prevent more countries from
developing nuclear weapons, though, it failed at achieving that end. Nuclear programs in India
and Pakistan arose after NPT, showing countries could simply withhold ratification and develop
weapons outside of the treaty framework. North Korea’s program began while party to NPT,
activating sanctions for violating the law and precipitating its withdrawal from the treaty. If
North Korea were no longer bound to NPT, it would not presently be in violation of international
law, which is arguably why the US and Security Council did not view North Korea’s withdrawal
as valid119. With the view that North Korea had not given sufficient notice of its intent to
withdraw, inspections and sanctions since 2003 have been framed upon North Korea’s
continuing status as a party to NPT, but the UN Office for Disarmament Affairs does not
presently list North Korea as one of the 93 signatories or 191state parties.120 Hence, there exists
an important contradiction in information which would presumably affect Iran if it decided to
withdraw from NPT. Presently, North Korea is under sanction because it is superficially bound
by NPT121, but a question remains whether it is still a legitimate member due to improper
departure, or it is bound ex post facto due to its prior nonperformance during a period in which it
was a party. Either way, there is a lot of ambiguity and gray area surrounding the case.
114
Perkins, Tom (2019). Pro-Israel donors spent over $22m on lobbying and contributions in 2018.
https://www.theguardian.com/us-news/2019/feb/15/pro-israel-donors-spent-over-22m-on-lobbying-and-
contributions-in-2018 [accessed 26 May 2020].
115
Waltz, Kenneth (2012). Why Iran should get the bomb: Nuclear balancing would mean stability.
https://www.foreignaffairs.com/articles/iran/2012-06-15/why-iran-should-get-bomb [accessed 19 May 2020]
116
Kirgis, Frederic (2003). North Korea’s withdrawal from the Nuclear Non-Proliferation Treaty. Insights, 8(2).
https://www.asil.org/insights/volume/8/issue/2/north-koreas-withdrawal-nuclear-nonproliferation-treaty [accessed
16 May 2020].
117
Arms Control Association (2019). Nuclear weapons: Who has what at a glance.
https://www.armscontrol.org/factsheets/Nuclearweaponswhohaswhat [accessed 16 May 2020]
118
Treaty on Non-Proliferation of Nuclear Weapons, 729 U.N.T.S. (1968).
119
Mon, Christopher (2006). International law and North Korean nuclear testing. Insights 10(27).
https://www.asil.org/insights/volume/10/issue/27/international-law-and-north-korean-nuclear-testing [accessed 16
May 2020]
120
United Nations Office for Disarmament Affairs (2020). Treaty on the Non-Proliferation of Nuclear Weapons:
Status of the treaty. http://disarmament.un.org/treaties/t/npt [accessed 16 May 2020]
121
Le Mon, Christopher (2006). International law and North Korean nuclear testing. Insights, 10(27).
https://www.asil.org/insights/volume/10/issue/27/international-law-and-north-korean-nuclear-testing [accessed 16
May 2020]. North Korea announced an “automatic and immediate effectuation of its withdrawal from the NPT”, but
art. X requires a period of notice.
 Regardless of the standards applied in sanctioning North Korea, it is not the only nuclear
power in violation of NPT which at Article VI requires parties to negotiate in good faith toward
disarmament. The Comprehensive Test Ban Treaty (CTBT) is a step toward that goal, but China,
India, Israel, Pakistan, and the United States are not included among the 168 parties.122 Although
sporadically, negotiations can breakdown and turn to impasse, if deadlock persists for more than
a half-century, it begins to look like parties are not complying with the “good faith” provision.
Thus, legal experts have oft criticized the United States and Russia for their failure to
continuously reduce their respective stockpiles. Russia’s party status to CTBT does not abrogate
its disarmament responsibilities under NPT, and at this late stage, it is reasonable to expect all
nuclear powers to have roughly the same number of warheads, which they would regularly
decommission in unison until total disarmament is achieved. The reality is that, while new
countries are admonished for their desires to possess nuclear arms as a deterrent,123 none of the
members of the exclusive nuclear club are pursuing negotiations with the goal of complete
disarmament; instead, most of them are upgrading their arsenals124. Thus, most nuclear states are
in violation of international law, but none as much as Russia and the United States125 for their
disproportionately large stockpiles and obstinate foundering in willing themselves,
simultaneously or separately, into sustained disarmament. Instead of gradual reduction of
stockpiles in a manner that can be mathematically expressed as a linear function, disarmament in
Russia and the US can be represented graphically as a limited exponential decay model which
has flatlined, leaving American and Russian arsenals at some twenty times the size of those in
other nuclear countries. The five nuclear power members of NPT could lead the charge toward
total disarmament, and if they decommissioned their stockpiles an argument could emerge that
possessing nuclear weapons is barred by CIL, which applies to all states erga omnes. With a
clearer rule under CIL formed, the remaining four non-NPT members could be compelled to
disarm themselves, and all nations would be precluded from developing new weapons. However,
until those nations undertake to comply on a voluntary basis, motivated by internal political
leadership, the Security Council is the only external means for the rest of the world to gain
redress against the small group of abnormal countries in possession of nuclear weapons, but the
Security Council’s permanent members are the very states leading the new arms race, so that
option is blocked by their unavoidable veto. In a world order where the most powerful countries,
or those with the most powerful weapons, can write their own rules and enforce a separate
standard on states, there are no rules; there is only what one can and cannot get away with.
Privatized warfare, socialized risks
Getting away with torture was the business model for private contractors at Abu Ghraib
prison in Iraq. Private security companies (PSCs) fall into a gray area because the law has not
been updated to handle modern complexities in war such as PSC contractors, who are not lawful
combatants because they are not part of military operations, nor are they mercenaries because
122
United Nations General Assembly, Comprehensive Test Ban Treaty, A/RES/50/245 (1996).
123
Shellenberger, Michael (2018). Who are we to deny weak nations the nuclear weapons they need for self-
defense? https://www.forbes.com/sites/michaelshellenberger/2018/08/06/who-are-we-to-deny-weak-nations-the-
nuclear-weapons-they-need-for-self-defense/#b999471522fb [accessed 19 May 2020]
124
Schlosser, Eric (2018). The growing dangers of the nuclear-arms race. https://www.newyorker.com/news/news-
desk/the-growing-dangers-of-the-new-nuclear-arms-race [accessed 19 May 2020]
125
Koplow, David (1993). Parsing good faith: Has the United States violated Article VI of the Nuclear Non-
Proliferation Treaty? Wisconsin Law Review, 301—394. https://scholarship.law.georgetown.edu/facpub/1735
[accessed 16 May 2020]; Ford, Christopher (2007). Debating disarmament: Interpreting Article VI of the Treaty on
the Non-Proliferation of Nuclear Weapons. Nonproliferation Review, 14(3), 401—428.
https://www.nonproliferation.org/wp-content/uploads/npr/143ford.pdf [accessed 16 May 2020].
they work in territories where their own countries are involved in conflicts, but neither are they
non-combatants since they carry weapons and conduct duties similar to lawful combatants under
government order126. Governments can exploit this loophole to skirt those pesky Geneva
Conventions, the Convention Against Torture127, and International Covenant on Civil and
Political Rights128 and other standards that would limit the use of torture during interrogation of
prisoners, at least in theory, if military personnel were the active agents. In 2003, The Guardian
reported PSCs were the second-largest contingent among coalition forces; there were more
military contractors than British troops in Iraq and Afghanistan. At the height of the wars, there
was at least one American contractor per American soldier – a ratio five to seven times greater
than in WWII129. The most highly-trained and experienced contractors earned up to $1,000 per
day as corporations capitalized on the $100 billion annual business.130 Barring some unlikely
moral epiphany, with that much money at stake, companies can ill-afford to see a time of peace;
goodwill and friendship do not pay their bills.
Mercenaries, or members of private military companies (PMCs), are a special type of
contractor that present the very real menace of privatized war. Customary International
Humanitarian Law does not grant mercenaries combatant or prisoner-of-war (POW) status131,
and while states are at liberty to grant them POW status, that is discretionary on a case-by-case
basis. Mercenaries can be arrested, tried, and sentenced under domestic law, which is why most
of their work is covert132. Despite concerns over the legal gray area within which they operate,
and in defiance of scrutiny regarding the increasingly common government practice of reducing
political and legal risks by outsourcing to private contractors, there has yet to emerge any clear
rule under CIL regarding use of mercenaries. State practice is split with a minority joining
treaties133 condemning mercenaries, but members do not include any of the most militarily active
or heavily armed nations like permanent members of the Security Council and their closest allies.
Mercenaries have found expansive work opportunities recently in Yemen, Nigeria, Ukraine,
Syria, Iraq, and probably several other locations. Typically trained and experienced soldiers,
sometimes from special forces units, their origins stretch the reaches of the planet – Russia,

126
Rosemann, Nils (2005). Privatized war and corporate impunity. Peace Review: A Journal of Social Justice, 17,
273—287, at 281. https://doi.org/10.1080/14631370500333005 [accessed 17 May 17, 2020]; De Nevers, Renee
(2009). Private security companies and the laws of war. Security Dialogue, 40(2), 169—190.
https://www.jstor.org/stable/26299777 [accessed 17 May 2020]
127
Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment, 1465 U.N.T.S.
85 (1984). https://www.refworld.org/docid/3ae6b3a94.html [accessed 17 May 2020]
128
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966), at art. 4(2) mandates right to life,
freedom from torture, freedom from arbitrary arrest and detention without due process.
129
McFate, Sean (2019). Mercenaries and war: Understanding private armies today. Washington: National Defense
University, at p. 18. https://ndupress.ndu.edu/Media/News/Article/2031922/mercenaries-and-war-understanding-
private-armies-today/ [accessed 18 May 2020]
130
Traynor, Ian (2003). The privatisation of war. https://www.theguardian.com/world/2003/dec/10/politics.iraq
[accessed 17 May 2020]
131
International Committee of the Red Cross, Customary International Humanitarian Law Rule 108: Mercenaries,
vol. II, ch. 33, sec. C. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule108 [accessed 18 May 2020]
132
McFate, Sean (2019). Mercenaries and war: Understanding private armies today. Washington: National Defense
University, at p. 24. https://ndupress.ndu.edu/Media/News/Article/2031922/mercenaries-and-war-understanding-
private-armies-today/ [accessed 18 May 2020]
133
Organization of African Unity Convention for the Elimination of Mercenarism in Africa, CM/817 (XXIX) Annex
II Rev.1 (1977). https://www.refworld.org/docid/514ae5c82.html [accessed 18 May 2020]; International Convention
Against the Recruitment, Use, Financing and Training of Mercenaries, 2163 U.N.T.S. 75 (2001).
https://treaties.un.org/doc/Treaties/1989/12/19891204%2008-54%20AM/Ch_XVIII_6p.pdf [accessed 18 May 2020]
Chechnya, France, Spain, Sweden, Colombia, Panama, El Salvador, Chile, Sudan, Chad,
Eritrea134, among others.
Mercenaries apparently have several comparative advantages to national armed forces.
First, mercenaries are more versatile. They can fight on both sides of civil wars, as seen in
Ukraine135, for example. In a global private military market, potential employers can recruit only
those contractors who are most suitable for a specific task. In many countries, PMCs are capable
of performing complex and dangerous jobs more effectively and efficiently than national military
personnel due to their respective work histories. Soldiers of fortune offer governments
opportunities to play a role in conflicts that may be politically unfavorable at home. Nigeria, for
example, hired PMCs to fight Boko Haram because national forces could not reliably handle the
unique and significant threat the terrorist group posed136. If a mercenary is killed in action, a
government can disavow their affiliation with the mission, as Nigeria did until it could no longer
deny the facts. Another advantage is that the public may never know about PMC fatalities, and
even if news becomes public knowledge, civilian responses are likely to be less passionate than
they would be if one of their own soldiers were killed in action. Also, whereas there are often
standards for transparency, accountability, and public disclosure of information pertaining to
government activities, private firms can use intellectual property protections to shield every
aspect of their business from the public. A company’s trade secrets and proprietary knowledge
never expire, so while a government may declassify documents and expose operations to public
scrutiny, PSCs and PMCs can keep their clandestine activities from public view in perpetuity.
Like other PSCs, PMCs are not subject to the same legal limitations; individuals are not
the subjects of international law, and mercenaries can have carte blanche to do as they see fit if
the government of the state they operate in approves or at least ignores things like torture, rape,
miscellaneous acts of violence, human trafficking, and discrimination. DynCorp was implicated
alongside NATO security forces and local police in a sex trafficking operation in Bosnia between
1992 and 1995, but only a handful of prosecutions occurred. When agents of a government,
including contractors, are involved in criminal activity, and especially during wartime, the
impulse to punish offenders plunges. “Convictions don’t mean much. Even if convicted, no one
goes to jail,” said the director of the UN Bosnia-Herzegovina Mission’s Special Trafficking
Operations Program137. DynCorp faced criticism but secured another lucrative contract to train
Iraqi police in the years following exposure in the Balkans138. Sure, just as the law and ethical
codes advocate civil and upright behavior, the official language of contracts bars corporate
mercenaries from violating human rights, but when the client is the government which defines
what behaviors are and are not worthy of enforcement, just about anything is fair game. When
134
McFate, Sean (2019). Mercenaries and war: Understanding private armies today. Washington: National Defense
University, at p.2—3. https://ndupress.ndu.edu/Media/News/Article/2031922/mercenaries-and-war-understanding-
private-armies-today/ [accessed 18 May 2020]
135
Jackson, Patrick (2014). Ukraine war pulls in foreign fighters. https://www.bbc.com/news/world-europe-
28951324 [accessed 18 May 2020]
136
Cropley, Ed & Lewis, David (2015). Nigeria drafts in foreign mercenaries to take on Boko Haram.
https://uk.reuters.com/article/uk-nigeria-violence-mercenaries/nigeria-drafts-in-foreign-mercenaries-to-take-on-
boko-haram-idUKKBN0M80VT20150312 [accessed 18 May 2020]
137
Human Rights Watch (2002). Hopes betrayed: Trafficking of women and girls to post-conflict Bosnia and
Herzegovina for forced prostitution. Bosnia and Herzegovina, 14(9), at p. 13.
https://www.justice.gov/sites/default/files/eoir/legacy/2013/06/14/bosnia_1102.pdf [accessed 18 May 2020]
138
Higgins, Andrew (2004). As it wields power abroad, U.S. outsources law and order work.
https://yaleglobal.yale.edu/content/it-wields-power-abroad-us-outsources-law-and-order-work [accessed 18 May
2020]
the Obama administration approved a deal between Military Professional Resources Incorporated
(MPRI) and Equatorial Guinea, it was partly on the basis of American national interest in
enhancing security in the Gulf of Guinea, and partly because the State Department was confident
the contract would prevent any abuse139. MPRI’s record on human rights was not unblemished
either. Their biggest prior contract had been to train the army in Croatia, where MPRI had
allegedly contributed to massacres of Serbs140. It should have come as no surprise when human
rights abuses continued in Equatorial Guinea under President Obiang even though MPRI’s
contract with Obiang’s government contained clauses mandating respect for human rights.
Ironically or befittingly, mercenaries had unsuccessfully attempted a coup in Equatorial Guinea
in 2004, and it failed mainly because one of the contractors broke his contractual obligation to
secrecy and informed South African, British, and American authorities of the plot141. As Obiang
and the US State Department knew well, sometimes these contractual terms are meaningless.
Mercenary forces additionally enable private individuals and entities to cheaply and
effectively provide security or perform some other motley task on an ad hoc basis that would not
be possible if they had to rely on government personnel. No corrupt payments nor navigation of
elaborate bureaucracies are required. Companies primarily, but even NGOs and aid groups, hire
private security or military outfits to protect equipment, property, and personnel in areas of
conflict and threat. Three-time Nobel Peace laureate Angelo Gnaedinger explained, “as states
have relinquished their monopoly on the legitimate use of violence, private military and security
firms have increasingly taken on functions that used to be the exclusive resort of state bodies.”
By “introducing a new armed entity into an already fragile and volatile environment,” he added,
“business enterprises, willingly or not, have an effect on the dynamics of a conflict.”142 In many
cases, use of PSCs and PMCs can legitimize and empower cohorts that only destabilize overall
peace and security in an area. In Warlord, Inc., Chairman of the US House Subcommittee on
National Security and Foreign Affairs, John Tierney presented “sobering and shocking” details
on a Department of Defense (DOD) contract for supply chain security in Afghanistan.
Contracting to local PSCs and PMCs, the DOD “fueled a vast protection racket run by a
shadowy network of warlords, strongmen, commanders, corrupt Afghan officials, and perhaps
others,” Tierney fulminated against the debacle which put valuable monetary resources into
accounts of American adversaries143. Despite all these potential hazards PSCs and PMCs
constitute, they are still being used at increasing rates because of their greatest comparative
advantage: they are cheaper than national armed forces. In a world where military action is in
high demand, where cost and strict obedience to the law are competing interests, market forces

139
Maddow, Rachel (2019). Blowout: Corrupted democracy, rogue state Russia, and the richest, most destructive
industry on Earth. New York: Crown. p. 117.
140
Gualtier, Leonard, Hovesipian, Garine, Ramachandran, Ayesha, Wadley, Ian, & Zerhdoud, Badr (2001). The
mercenary issue at the UN Commission on Human Rights: The need for a new approach. London: International
Alert, Policy and Advocacy Department, at p. 12. https://www.international-alert.org/publications/mercenary-issues-
un-commission-human-rights [accessed 18 May 2020]
141
McFate, Sean (2019). Mercenaries and war: Understanding private armies today. Washington: National Defense
University, at p. 29. https://ndupress.ndu.edu/Media/News/Article/2031922/mercenaries-and-war-understanding-
private-armies-today/ [accessed 18 May 2020]
142
Gnaedinger, Angelo (2006). War and business enterprises. Journal of Financial Transformation.
https://www.icrc.org/en/doc/resources/documents/article/other/war-business-article-010806.htm [accessed 18 May
2020]
143
Tierney, John (2010). Warlord, Inc.: Extortion and corruption along the supply chain in Afghanistan.
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/Warlord.pdf [accessed 18 May
2020]
create opportunity for private competitors to seize market share and capitalize on economies of
scale; whether they adhere to some rarefied vision of the law may be inconsequential so long as
they get the job done at a price that leaves budgets flush for the next batch of conflicts.
Spies like us
As technology continues to catapult the world into new ages of communications,
automation, and interconnectivity, cyberspace has emerged as the most crucial frontier for
private and public security. States have thus far adhered to a moratorium on seriously mala fides,
offensive transboundary incursions such as hacking to disrupt a power grid, or interfering with
digital financial transfer networks, or less consequential acts like suspending cable or internet
services. There has been a general consensus that international law applies to cyberspace, and
that any act causing direct loss of life or damage to property would contravene prohibition on use
of force144. However, just as espionage has remained an unsettled object of law145, so do there
exist multiple unknowns and hitherto undefined rules in cyberspace. Judging by state behavior,
spying is not illegal between nations but is within national borders where it is viewed as a
violation of territorial integrity. France, for example, declared it would view any cyberoperations
against it during peacetime as interventionist violations of its sovereignty146. States, probably
including France, justify their own clandestine espionage under the premise that is not unilateral,
and the presumptive proof that all governments spy on each other is a sine qua non rationalizing
reciprocal behavior147. Notwithstanding the legally dubious rationale that espionage is illegal
when “They” do it to “Us” but justifiable when “We” do it to “Them”, de-escalation is unlikely
in the absence of a formal agreement prohibiting the act, and even then it is not guaranteed.
Discretion and expertise are necessities in the legally ambiguous and controversial realm
of espionage, especially in cyberspace where private contractors share a comparative advantage.
Edward Snowden’s leak of files relating to a US government surveillance program demonstrated
that political fallout is a fait accompli in the event of public exposure148. Beyond the eroded
bonds of trust between nations – trust which may have been illusory before news agencies and
WikiLeaks revealed the depth and breadth of infiltration – the legitimacy of any legal order is
only further compromised by increasing use of non-state actors to commit acts which would
unarguably be criminal without state sponsorship; such acts of cyberespionage are arguably
illegal for governments to commit. In the mire of opinion and muddled ethics, a cyber-arms race
provides unprincipled entrepreneurs incentive to develop malicious computer skills to a market
where hacking is morally paradoxical, talent is in short supply, and jobs are lucrative. A grayhat
candidate for a government contract may have started out as a blackhat in an identity theft ring,
or a whitehat college student studying computer science may decide to hack a government server
after becoming disillusioned by irreconcilable differences between the theoretical ethics his
professors teach and the pragmatic realities of the world off campus. Actually, former criminals
144
Koh, Harold (2012). International law in cyberspace. Harvard International Law Journal Online, 54.
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5858 [accessed 24 May 2020].
145
Dubuisson, Francois & Verdebout, Agatha (2018). Espionage in international law. Oxford Bibliographies.
https://doi.org/10.1093/OBO/9780199796953-0173 [accessed 24 May 2020].
146
France Ministry of Armed Forces (2019). International law applied to operations in cyberspace.
https://www.defense.gouv.fr/content/download/567648/9770527/file/international+law+applied+to+operations+in+c
yberspace.pdf [accessed 24 May 2020].
147
See Wright, Quincy (1960). Legal aspects of the U-2 incident. The American Journal of International Law, 54(4),
836—854. http://www.jstor.org/stable/2195143 [accessed 24 May 2020].
148
Wright, David & Kreissl, Reinhard (2013). European response to the Snowden revelations: A discussion paper.
http://irissproject.eu/wp-content/uploads/2013/12/IRISS_European-responses-to-the-Snowden-revelations_18-Dec-
2013_Final.pdf [accessed 24 May 2020].
may make the best security advisors since they know critical network weaknesses and
vulnerabilities. Whatever the case, highfalutin codes of conduct do not always stand strong in the
face of Brobdingnagian profits, influence and power.
Russian interference in the 2016 American election drew a straight line between hobby
hackers and state-sponsored espionage. Romanian taxi driver Marcel-Lehel Lazar, a.k.a.
Guccifer, made a big name for himself by posting on the Internet emails and pictures stolen from
hacked accounts of Romanian celebrities and American politicians. A nonprofit voyeur, Guccifer
particularly enjoyed toying with George W. Bush and people in his administration before
Guccifer was finally caught and sent to prison149. In 2016, a Russian intelligence operative
calling himself Guccifer 2.0 became a central figure in the case involving hacked Democratic
Party communications and candidate Hillary Clinton’s infamous emails150. Apparently attracted
to the buzz Guccifer 2.0 created about intelligence that was potentially damaging to his
opponent, Republican candidate Donald Trump made a televised appeal to Russia to “find the
30,000 emails that are missing”151. Of course, the Kremlin officially denies any direct
involvement; instead, President Putin has suggested that some “patriotically minded” private
hackers could have meddled in the American election152. The Mueller report153 ties together the
Russian government, troll farms in St. Petersburg154, and Guccifer 2.0 for their intermingling
parts in the 2016 election fiasco.
Cyberspace is jointly used for public and private activities, and as such it is also a
platform for multitiered intelligence activity. The US government has expressed grave concern
over Chinese state-sponsored cyberespionage targeting both government agencies and private
companies. US congressman Murphy claimed theft of intellectual property155 represents the
“greatest transfer of wealth in history”156, which is obviously inaccurate considering European
and North American colonialist expropriation of indigenous people’s real property and
commodities, but Murphy’s exaggeration serves to draw attention to the immense value
companies feel China has purloined. Industrial espionage has existed for as long as multinational
corporations. The British East India Company’s success in tea cultivation was built upon what

149
Higgins, Andrew (2014). For Guccifer, hacking was easy, prison is hard.
https://www.nytimes.com/2014/11/11/world/europe/for-guccifer-hacking-was-easy-prison-is-hard-.html [accessed
24 May 2020].
150
Sanger, David, Rutenberg, Jim, & Lipton, Eric (2018). Tracing Guccifer 2.0’s many tentacles in the 2016
elections. https://www.nytimes.com/2018/07/15/us/politics/guccifer-russia-mueller.html [accessed 24 May 2020].
151
Parker, Ashley & Sanger, David (2016). Donald Trump calls on Russia to find Hillary Clinton’s missing emails.
https://www.nytimes.com/2016/07/28/us/politics/donald-trump-russia-clinton-emails.html [accessed 24 May 2020].
152
Higgins, Andrew (2017). Maybe private Russian hackers meddled in election, Putin says.
https://www.nytimes.com/2017/06/01/world/europe/vladimir-putin-donald-trump-hacking.html
153
United States Department of Justice, Special Council Robert Mueller (2019). Report on the investigation into
Russian interference in the 2016 Presidential election. https://www.justice.gov/storage/report.pdf [accessed 24 May
2020].
154
See United States v. Internet Research Agency, et al., 1:18-cr-32 (D.D.C. Feb. 16, 2018)
155
Latrionte, Catherine (2015). Countering state-sponsored cyber economic espionage under international law.
North Carolina Journal of International Law & Commercial Regulation, XL, 443—541.
https://securitypolicylaw.syr.edu/wp-
content/uploads/2015/06/Lotrionte_Countering_State_Sponsored_Cyber_Economic_Espionage.pdf
156
Murphy, Tim (2013). Quote from the US House Subcommittee on Oversight and Investigation of the Committee
on Energy and Commerce, “Cyber espionage and the theft of US intellectual property”, No. 113-67. Text from
https://www.govinfo.gov/content/pkg/CHRG-113hhrg86391/html/CHRG-113hhrg86391.htm [accessed 24 May
2020].
would today amount to theft of intellectual property from the Chinese157. Historical misconduct
aside, the Internet has increased the scale of potential threats by many orders of magnitude
compared to traditional means, and the 21st century cybercriminal menace poses significant
threats to every individual in every nation on earth. Symantec reported that, despite private and
public efforts to thwart online intrusions, threats are increasing. Malware, key-loggers,
ransomware, spyware, formjackers, cryptojackers, phishing messages and other venomous code
create a digital mine field that mobile and PC users have to navigate each time they access the
web. Malicious links are contained in about ten percent of business emails in some high-income
economies, and estimated ten percent of URLs on the public Internet are malicious158. Public and
private clandestine operatives employ the same cyber methods as profit-seeking criminal groups,
all of whom attack business and government servers in cyberwarfare campaigns whose pace has
only hastened alongside broadband speeds159. Conscious or accidental cooperation between
private companies, technology specialists, and governments has expanded the technological
capacity and professional knowhow in the industry, which produces benefits but also poses
escalating threats to people everywhere regardless of borders, socioeconomic class or political
affiliation.
Partners in Crime
Transparency International’s annual corruption perception indices imply corruption and
national wealth share a negative correlation160. Those opinions are rebutted by empirical evidence
showing MNCs from the world’s wealthiest countries pose the most significant corruption risks,
and that nearly half of all known bribes are paid to officials in countries with high or very high
human development161. World Economic Forum analysts estimated corruption may cost
developing countries $1.26 trillion per year, but in spite of apparent harms, nearly half of
workers surveyed in Europe, Middle East, Africa, and India thought bribery and corruption were
acceptable162. Armed with vast cash reserves, equity, and available lines of credit, MNCs can
easily reduce market competition by bribing public officials, especially in jurisdictions where
law enforcement is unprepared to handle white-collar crimes. Unsurprisingly, evidence from a
China study found presence of MNCs increased corrupt activities163. Overall, corruption may
cost the global economy $3.6 trillion each year164, or about 4 percent of the world’s GDP, and it
proliferates with MNC expansion. The most notorious corruption scandals involve obscene

157
Button, Mark (2019). Editorial: Economic and industrial espionage. Security Journal.
https://doi.org/10.1057/s41284-019-00195-5 [accessed 24 May 2020].
158
Symantec (2019). Internet security threat report. https://docs.broadcom.com/doc/istr-24-2019-en [accessed 24
May 2020].
159
Center for Strategic & International Studies (2020). Significant cyber incidents.
https://www.csis.org/programs/technology-policy-program/significant-cyber-incidents [accessed 24 May 2020].
160
Transparency International (2020). Corruption perception index 2019.
https://www.transparency.org/en/cpi/2019/results [accessed 13 May 2020]
161
OECD (2014). OECD foreign bribery report: An analysis of the crime of bribery of foreign officials, p. 30.
http://dx.doi.org/10.1787/9789264226616-en [accessed 23 May 2020].
162
Fleming, Sean (2019). Corruption costs developing countries $1.26 trillion every year – yet half of EMEA think
it’s acceptable. https://www.weforum.org/agenda/2019/12/corruption-global-problem-statistics-cost/ [accessed 23
May 2020].
163
Zhu, Boliang (2017). MNCs, rents, and corruption: Evidence from China. American Journal of Political Science,
61(1), 84—99. https://www.jstor.org/stable/26379494 [accessed 23 May 2020].
164
Johnson, Stephen (2018). Corruption is costing the global economy $3.6 trillion dollars every year.
https://www.weforum.org/agenda/2018/12/the-global-economy-loses-3-6-trillion-to-corruption-each-year-says-u-n
[accessed 23 May 2020].
amounts of money and multiple players from different countries on all six inhabited
continents165, but day-to-day incidents far outnumber the most prolific cases in volume and value.
Bribery, nepotism, cronyism, kickbacks, bid-rigging and other forms of corruption are endemic
in business; they are as ubiquitous as any of the world’s most famous brands or logos.
The financial value of corruption worldwide has increased over the years due most
obviously to growth in international trade, but courts have also lent a helping hand to corrupt
businesses and public officials. In 1990, the USSC recognized “a danger of real or apparent
corruption” exists beyond the explicit quid pro quo variety. The Court held the State of Michigan
had a compelling interest in limiting corporate political contributions because of their “corrosive
and distorting effects” on politicians who may perform duties that bear “no correlation to the
public’s support”166. Nearly ten years later, the Court pivoted and permitted corporations to give
gifts to public officials provided that the government could not prove an intentional link between
the gift and a specific official act167. A gift could legally result in an official act if the relationship
were merely coincidental, but if the quid pro quo were spelled out so boldly that prosecutors
could prove it, that would be a crime; so much for corrosive and distorting effects of apparent
corruption. Another decade later, the Court opened the flood gates for corporate influence of
public officials when it declared the “appearance of corruption” no longer had any legal
meaning168. The most blatant cases of bribery are still actionable, but if private sponsors and
public officials take even the most rudimentary precautions – nothing in writing, no digital
fingerprints, as little discussion over phones as possible in case of wire taps – their mutually
profitable relationships will not amount to criminal activity.
Corporate legal personality allows entities to engage in advocacy for public law and
regulatory reform by means of lobbying or contributing tens of billions of dollars to political
campaign funds169; this occurs under the blanket of free speech. By some estimates, return on
investment for political lobbying can be as high as 20,000 percent170. Companies utilize their
rights to free speech to gain tax advantages, friendlier environmental or labor regulations, or less
government oversight – all of which may have net-harmful impacts on their employees and the
general public. Private citizens, on the other hand, often face reprisals for their exercise of speech
in the workplace regarding corporatism, capitalism, or related public policies, and the law does
not protect such individuals but from government prosecution171. The slow-moving corporate
coup d’etat in the US has roots in the early Cold War years of red scares, McCarthyism, and
blacklisting of teachers, writers, and anyone accused of disloyalty to the American capitalist

165
Transparency International (2019). 25 corruption scandals that shook the world.
https://www.transparency.org/en/news/25-corruption-scandals [accessed 23 May 2020].
166
Austin v. Michigan Chamber of Commerce, 494 US 652 (U.S. Supreme Court 1990) at 660.
167
United States v. Sun-Diamond Growers of Cal., 526 US 398 (U.S. Supreme Court 1999)
168
Citizens United v. Federal Election Commission, 558 US 310 (U.S. Supreme Court 2010) at 884(2), “…
independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of
corruption.”
169
Thompson, Nick (2012). International campaign finance: How do countries compare?
https://edition.cnn.com/2012/01/24/world/global-campaign-finance/index.html [accessed 22 May 2020].
170
Andrzejewski, Adam (2019). How the Fortune 100 turned $2 billion in lobbying spend into $400 billion in
taxpayer cash. https://www.forbes.com/sites/adamandrzejewski/2019/05/14/how-the-fortune-100-turned-2-billion-
in-lobbying-spend-into-400-billion-of-taxpayer-cash [accessed 22 May 2020].
171
Dallago, Laura (2016). Silence or noise? The future of public employees free speech rights and the Supreme
Court’s jurisprudence on the scope of the right. Washington and Lee Journal of Civil Rights and Social Justice,
22(1), 239—271. https://scholarlycommons.law.wlu.edu/crsj/vol22/iss1/9 [accessed 22 May 2020].
ethic172. There is no need for such theatrics anymore, not since the Powell memorandum
objectives have by and large been achieved. Freedoms of speech, the press, and political opinion
are increasingly popular around the world, but there is also a growing disconnect between the
popular will of the electorate and government function. Between 2002 and 2017, significantly
fewer people believed the state is run for the benefit of all, according to a Pew Research Center
study of eleven countries: Italy, German, Poland, UK, US, Bulgaria, Turkey, Russia, South
Africa, Ukraine, and Kenya173. Empirical data supports their caviling over the disproportionate
influence wealthy elites and MNCs have on governments174. Intensifying corporate pressure on
governments relieves average citizens of their power, makes public officials proxies of
commerce, and socializes losses while privatizing profits. Capital trickles up to wealthier classes,
and costs trickle down in the form of corruption, environmental degradation, multi-trillion dollar
bailouts, and a general waning of civil society.
“In the age of oligarchy, laws are window dressing when penalties aren’t high enough
and the people responsible for the lawbreaking are not held responsible,” Robert Reich warned.
“Unless the government prosecutes individuals or at least claws back their pay, the law is not of
particular concern to the inhabitants of C-suites”175. Oil men put on airs of confident denial in
response to rational inquiry, and their careers survive the opprobrium thanks to their wealth,
influence, and the autonomy their labyrinthine occupations afford them. In other words, MNCs
enjoy relative immunity due in part to the fact that they can pay exorbitant amounts to
politicians, and in part because very few people understand how they operate, so there is little
credible testimony to hear which contradicts the official perpetually-rosy corporate outlook.
MNCs get away with abusing people and the environment because they can – a luxury which
itself requires cooperation across many nations, ethnicities, classes, and occupations.
Analogously, some criminal syndicates rely on these methods to secure supply chains, finances,
and relative immunity of top-ranking officers.
Narcotics superhighway
Beginning in 1961 with the Single Convention on Narcotics Drugs176, countries
formalized international commitments to eradicate the international trade in commonly misused
recreational narcotics and other illicit substances. President Nixon declared “war on drugs” in
1971, the same year a second treaty was drafted177. A third treaty178 took shape just prior to
172
Goldstein, Robert (2006). Prelude to McCarthyism: The making of a blacklist.
https://www.archives.gov/publications/prologue/2006/fall/agloso.html [accessed 22 May 2020]; University of
California Berkeley Library (2020). McCarthyism & blacklisting.
https://www.lib.berkeley.edu/mrcvault/videographies/genre/mccarthyism-blacklisting [accessed 22 May 2020].
173
Wike, Richard, & Schumacher, Shannon (2020). Democratic rights popular but commitment to them not always
strong. https://www.pewresearch.org/global/2020/02/27/democratic-rights-popular-globally-but-commitment-to-
them-not-always-strong/ [accessed 22 May 2020].
174
Gilens, Martin & Page, Benjamin (2014). Testing theories of American politics: Elites, interest groups, and
average citizens. Perspectives on Politics, 12(3), 564—581, at 572.
175
Reich, Robert (2020). The system: Who rigged it, how we fix it. New York: Alfred A. Knopf. p. 38
176
Single Convention on Narcotics Drugs, 520 U.N.T.S. 151 (1961). 61 signatories, 154 parties.
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI-15&chapter=6 [accessed 23 May
2020]
177
Convention on Psychotropic Substances, 1019 U.N.T.S. 175 (1971). 34 signatories, 184 parties.
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI-16&chapter=6 [accessed 23 May
2020].
178
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 U.N.T.S. 95 (1988). 87
signatories, 191 parties. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI-19&chapter=6
[accessed 23 May 2020].
Clinton-led paranoia over “super-predators”179 and a major revision of American criminal codes
which provided stiffer penalties for drug crimes, mandatory minimum sentences including life
imprisonment, authorized prosecution of juveniles in adult courts, and expanded the death
penalty to cover certain drug-related offenses180. Nearly every country on earth is party to at least
one of the three core anti-narcotics treaties as the War on Drugs has become perhaps the most
identifiable subject of international cooperation in criminal law enforcement. Notwithstanding all
the outward unanimity among treaty members, the drug war stands as an epic example of failure
in the international system181.
Eradication may have been an unrealistic goal from the start, but after sixty years and
trillions of dollars spent fighting drugs on supply and demand sides, illicit substances are
cheaper, available in higher supply, and used more frequently than ever. Criminalization gave
rise to brutal cartels whose enviable financial positions indemnify their assorted criminal
behaviors as corruption has gripped jurisdictions up and down supply chains. Criminal
organizations, flush with cash, can fund private militias outfitted with state-of-the-art weaponry
and protective gear. Drug gangs can afford to engage in all manner of bribery, extortion,
blackmail, kidnapping, rape, murder, or any other activity required to secure the channels of
distribution for their drugs northward from South and Central America to the US, and for their
financial compensation flowing back southward182. The epitome of drug lord amnesty, Pablo
Escobar, spent seven years on Forbes’ billionaires list183, using his money and power to control
territories, dispatch competitors and insubordinate underlings, and even become a Colombian
congressman. A few decades after Escobar’s inescapable death, testimony in the trial of Joaquin
“El Chapo” Guzman indicated the Sinaloa cartel had put more than $100 million into the pockets
of droves of corrupt Mexican officials in exchange for varied assistance, including transporting
cocaine and escaping from prison184. People like Escobar and Guzman have fairy-tale piles of
cash, and they can use it to influence even otherwise honest people. Money can ultimately
extirpate the will and desire to believe in the vision of the drug war among underpaid police,
military, and civil servants. At the end of the day, cartels have more resources to fight for their
side than governments do.
Cartel personnel are multifaceted individuals – heroes to some, villains to others. Trade
in illicit narcotics provides lucrative job opportunities where none previously existed, and
aggregate revenues can stimulate depressed local economies. Drug money bestows upon an
179
Gearan, Anne & Phillip, Abby (2016). Clinton regrets 1996 remark on ‘super-predators’ after encounter with
activist. https://www.washingtonpost.com/news/post-politics/wp/2016/02/25/clinton-heckled-by-black-lives-matter-
activist/ [accessed 23 May 2020].
180
United States Violent Crime Control and Law Enforcement Act, Public Law 103-322 (1994).
https://www.congress.gov/bill/103rd-congress/house-bill/3355/text [accessed 23 May 2020].
181
Reuters (2018). Regulate: Ex-world leaders’ solution to “failed” drug war. https://www.reuters.com/article/us-
global-drugs-presidents/regulate-ex-world-leaders-solution-to-failed-drug-war-idUSKCN1M40DC [accessed 23
May 2020]. Among other examples available in online news, a group of 12 former world leaders advocate ending
prohibition due to the failure of drug policies to effectively reduce supply or demand.
182
Piaggio, Alvaro & Vidwans, Prachi (2019). The cost and consequences of the war on drugs. New York: Human
Rights Foundation Center for Law and Democracy. http://fileserver.idpc.net/library/the-cost-and-consequence.pdf
[accessed 23 May 2020].
183
Touryalai, Halah (2015). Watching Netflix’s Narcos? Here’s Pablo Escobar in Forbes’ first-ever billionaire
issue in 1987. https://www.forbes.com/sites/halahtouryalai/2015/09/15/watching-netflixs-narcos-heres-pablo-
escobar-in-forbes-first-ever-billionaire-issue-in-1987/ [accessed 23 May 2020].
184
Associated Press (2019). El Chapo trial shows how 'rampant,' 'systemic' corruption impedes drug war.
https://www.nbcnews.com/news/us-news/el-chapo-trial-highlights-how-mexico-graft-impedes-drug-war-n966346
[accessed 23 May 2020].
uneducated, unskilled, and otherwise unremarkable person the façade of affluence. The average
street kid can look up to narco-capitalists as having come from nothing, and as having reached a
level of success that very few hardworking, law-abiding people ever will185. On the other hand,
cartels cut off more heads than ISIS. They rule by force, and anybody who objects has two
choices: run away or suffer the painful consequences of torture and possibly murder of their
entire family186. The product cartels sell are associated with theft, violent crime, mental illness,
decreased productivity at work, absenteeism, truancy and dropping out of school187. Illicit
proceeds are usually funneled into low-quality investments like transportation, restaurants and
hotels. Drug money does not contribute to tax bases, and it can distort market function, restrict
economic progress, and stall innovation188. Some countries have quietly given up on the drug war
due to such complex dualities alongside empirical evidence suggesting lives lost and money
spent on prohibition may have been for naught.
Thirty countries have decriminalized or legalized at least one drug since 1976, cannabis
being the most common189. Portugal decriminalized personal possession and use of all drugs in
2001, and reports suggest the strategy has helped reduce drug dependency and violence190.
Starting with Colorado and Washington in 2012, eleven American States plus the District of
Columbia have legalized recreational marijuana by popular referendum191. In 2013, Uruguay
became the first country to legalize cannabis for recreational use. The Uruguayan government
controlled retail prices to force illicit dealers out of the market192, unlike the American
experiment which relied on pre-existing price structures that had been set by cartels who spent
decades manipulating markets with horizontal and vertical restraints, among other
anticompetitive practices. To some critics, the newly regulated marijuana industry in the US is
little more than a legalized version of the same cartel structure that governments fought for
decades193. Also in 2013, Bolivia sought to end its part in the drug war by legalizing coca194 while
185
Labiche, Diana (2015). African American males drug trafficking behaviors: Implications for curriculum
development (unpublished dissertation). University of Toledo. https://etd.ohiolink.edu/!etd.send_file?
accession=toledo1448385817 [accessed 23 May 2020].
186
Phillips, Brian (2018). Terrorist tactics by criminal organizations: The Mexican case in context. Perspectives on
Terrorism, 12(1), 46—63. https://www.universiteitleiden.nl/binaries/content/assets/customsites/perspectives-on-
terrorism/2018/03-terrorist-tactics-by-criminal-organizations---the-mexican-case-in-context-by-brian-j.-phillips.pdf
[accessed 23 May 2020]
187
World Health Organization (2003). Investing in mental health.
https://www.who.int/mental_health/media/investing_mnh.pdf [accessed 23 May 2020].
188
UNODC (2011). Estimating illicit financial flows resulting from drug trafficking and other transnational crime,
p. 109. https://www.unodc.org/documents/data-and-analysis/Studies/Illicit_financial_flows_2011_web.pdf
[accessed 23 May 2020].
189
Release LEADS (2020). Drug decriminalization across the world. https://www.talkingdrugs.org/drug-
decriminalisation [accessed 23 May 2020].
190
Bajekal, Naina (2018). Want to win the drug war? Portugal might have the answer.
https://time.com/longform/portugal-drug-use-decriminalization/ [accessed 23 May 2020].
191
Speights, Keith (2020). Timeline for marijuana legalization in the United States: How the dominoes are falling.
https://www.fool.com/investing/timeline-for-marijuana-legalization-in-the-united.aspx [accessed 23 May 2020].
192
Hudak, John, Ramsey, Geoff, & Walsh, John (2018). Uruguay’s cannabis law: Pioneering a new paradigm.
https://www.brookings.edu/wp-content/uploads/2018/03/gs_032118_uruguaye28099s-cannabis-law_final.pdf
[accessed 23 May 2020].
193
Minhaj, Hasan (Producer) (2020). Patriot Act: The legal marijuana industry is rigged [Netflix broadcast].
https://www.netflix.com/sa-en/title/80239931 [accessed 27 May 2020].
194
Tegel, Simeon (2016). Bolivia ended its drug war by kicking out the DEA and legalizing coca.
https://pulitzercenter.org/reporting/bolivia-ended-its-drug-war-kicking-out-dea-and-legalizing-coca [accessed 23
May 2020].
remaining party to treaties requiring criminalization. Mexico followed Portugal’s lead in 2016195
but without the same marked decrease of drug-related crime. In 2018, Canada became the second
country to legalize recreational cannabis use for adults196. More jurisdictions are expected to
experiment with decriminalization and legalization as the drug war flounders through late stages
of its life cycle. These policy shifts represent pragmatic solutions that had been elusive for
decades, but despite their apparent successes and benefits for governments and civilians alike,
they give rise to rather momentous legal concerns as all these countries remain parties to one or
more core anti-narcotics treaties which require member states to criminalize cultivation,
production, transport, distribution, sale, possession, and consumption. Unsettled morality of
nonviolent trade and use of drugs aside, these new policies opened a chasm in the international
system. Until that fissure is mended, criminal organizations will only look to it as implicit
acquiescence to their natural rights to engage in narcotics trading. Likewise, scofflaw tertiary
consumers will only be more emboldened in their disdain for legal systems. To make matters
worse, as Michelle Alexander explicated in The New Jim Crow197, law enforcement in this
contradictory, confusing area of the law will continue to have disproportionately harmful effects
on the poor and racial minorities.
Socioeconomic & political Darwinism
Human rights law emerged from natural law theories, or deontological ethical philosophy
of rights and duties. Although human rights existed implicitly throughout history, the Universal
Declaration of Human Rights (UDHR) encoded these general principles, which formed the
chrysalis of new positive law. The UDHR was not law, per se, but it opened a new international
conclave which later enumerated rights and duties in an extensive set of treaties that impel states
to recognize and protect individuals’ rights to, inter alia, life and liberty, freedom from slavery or
torture, freedom of opinion and expression, the right to work and education, right to privacy,
freedom from arbitrary arrest or interference by police, and right to some form of trial through a
judicial process.198 These rights are inherent in all humans regardless of race, sex, nationality,
religion, or other status199. Because individuals are not the subjects of international law,
sovereign nations act as custodians and protectors of human rights, which has been a limiting
structural factor in attainment of universal human rights. There is no global court holding
universal jurisdiction to hear complaints and issue binding orders on abuse of individual rights.
Generally speaking, individuals must exhaust all potential remedies domestically before they
may approach a regional or other international supervisory authority if available under a treaty.
Still, there are countless obstacles to an individual’s successful resolution of a complaint, most
notably the high monetary cost and low access to advocates as the people most prone to abuse
are the poorest, the stateless, and the politically marginalized.
Despite near-universal ratification of core treaties, there are few, if any, countries that
have not significantly derogated from their terms, starting with the right to life. When an agent of
195
Library of Congress (2016). Decriminalization of narcotics: Mexico.
https://www.loc.gov/law/help/decriminalization-of-narcotics/mexico.php [accessed 23 May 2020].
196
Government of Canada, Cannabis Act (S.C. 2018, c. 16). https://laws-lois.justice.gc.ca/eng/acts/c-24.5/ [accessed
23 May 2020].
197
Alexander, Michelle (2010). The New Jim Crow: Mass incarceration in the age of colorblindness. New York:
The New Press.
198
the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and
Cultural Rights, or the Convention on the Rights of the Child, Convention on the Elimination of Discrimination
Against Women, the International Convention on the Elimination of All Forms of Racial Discrimination
199
United Nations (2020). Human rights. https://www.un.org/en/sections/issues-depth/human-rights/ [accessed 21
May 2020]
the state commits homicide, domestic courts are likely to label it “justifiable”200 and grant
“qualified immunity”201. Furthermore, if a court decides to hear a case, the burden of proof is
typically higher for a civilian alleging a public official committed a crime than for a public
prosecutor charging a private citizen with the same crime. Juries and judges frequently convict
civilians based on circumstantial evidence alone, or certainly a loose connection to a crime
buttressed by a witness testimony would be sufficient to secure a guilty verdict regardless of the
potential for false testimony, misidentification, and improper conclusions inferred from
circumstances202.
In the most egregious cases worldwide, law enforcement agents summarily execute
criminal suspects based on presumptive evidence, information from a single unvetted source, or
simply because the suspect fits a profile. Police and other agencies carried out extrajudicial
killings of some 2,500 Thais203 and 27,000 Filipinos204 on orders from the highest levels of
government in drug wars, and these policies were popular among voters. The only compensation
paid to victims was written condemnation from foreign institutions and occasionally, from brave
local media outlets. In another instance, the Supreme Court of India ordered investigation of
1,528 extrajudicial killings between 1979 and 2012. Thereafter, police and other government
agents in Manipur, India repeatedly threatened and harassed lawyers and families of victims205.
In Latin America, estimated numbers of enforced disappearances – often a euphemism for
extrajudicial killings – have risen into the hundreds of thousands since the 1970s as the
implementation gap remains problematic206. If the number of ratifications of the Convention on
Enforced Disappearances is any indication of state interest, it seems most countries are
unenthusiastic about the issue, possibly because joining the treaty would contradict their national
security agendas which include the very practice the treaty seeks to forbid207. Antagonism
towards rights to life and liberty are clear in Russia, where the Kremlin passed a law formally
200
Cornell Law School (2020). Justifiable homicide. https://www.law.cornell.edu/wex/justifiable_homicide
[accessed 21 May 2020]. “Definition from Nolo’s Plain-English Law Dictionary: A killing without evil or criminal
intent, for which there is no blame. For example, an accidental shooting, a killing in the course of self-defense, or a
death that results from the necessary actions of a police officer would all be justifiable homicides.”
201
Cornell Law School (2020). Qualified immunity. https://www.law.cornell.edu/wex/qualified_immunity [accessed
21 May 2020]. “Specifically, qualified immunity protects a government official from lawsuits alleging that the
official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or
constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a
hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.”
202
Clarke, James (1983). Problems of presumptive proof.
https://www.theatlantic.com/magazine/archive/1893/07/problems-of-presumptive-proof/376181/ [accessed 21 May
2020]; Heller, Kevin (2006). The cognitive psychology of circumstantial evidence. Michigan Law Review, 105(2),
241—305. http://www.jstor.org/stable/40041577 [accessed 21 May 2020].
203
Reuters (2007). Thailand to probe Thaksin’s deadly anti-drug war. https://www.reuters.com/article/us-thailand-
thaksin-probe/thailand-to-probe-thaksins-deadly-anti-drug-war-idUSBKK30039820070802 [accessed 21 May
2020].
204
The Economist (2020). Rodrigo Duterte’s lawless war on drugs in the Philippines is wildly popular.
https://www.economist.com/briefing/2020/02/20/rodrigo-dutertes-lawless-war-on-drugs-is-wildly-popular [accessed
21 May 2020]
205
Human Rights Watch (2018). India: Manipur victim families, activists harassed.
https://www.refworld.org/docid/5b39f29fb.html [accessed 21 May 2020].
206
Dulitzky, Ariel (2019). The Latin-American flavor of enforced disappearances. Chicago Journal of International
Law, 19(2), 423—489. https://chicagounbound.uchicago.edu/cjil/vol19/iss2/3 [accessed 21 May 2020].
207
International Convention for the Protection of All Persons from Enforced Disappearance, 2716 U.N.T.S. 3
(2010). https://www.ohchr.org/en/hrbodies/ced/pages/conventionced.aspx [accessed 22 May 2020]. With 98
signatories and 68 parties, there is minimal attention and cooperation in this matter.
authorizing extrajudicial killings abroad in 2006. Russia has since carried out multiple targeted
assassinations of former Soviets, defectors, and influential political opponents208. Every year in
the US, police shoot and kill approximately 1,000 people, many of whom – young black men
most notably – are unarmed and pose no threat to officers209. Such an abbreviated catalogue does
not illustrate the disconcerting trend worldwide, but it offers prima facie substantiation that
governments have not emphatically protected civilian rights to life.
Contempt for anti-discrimination provisions of human rights law is evident in sectarian
violence and blatantly prejudiced policies which have consistently plagued an increasingly
diverse and mobile world where minorities face anachronistic fealty to tribal chauvinism. Ahmad
argued that longstanding violence against Muslims in India has been virtually legalized by courts
which “define the Indian identity in monolithic terms or in terms of the culture of the Hindu
majority”210 India’s amended Citizenship Act grants exemption from being treated as illegal
immigrants for persons from Pakistan, Bangladesh, and Afghanistan who are members of Hindu,
Sikh, Buddhist, Jani, Parsi or Christian faiths, but Muslims are not eligible for the same
registration or naturalization211. Discrimination and violence between and within religious faiths
have been steady over millennia, and still today states often take sides or fail to appropriately
deal with schismatic disputes. Tensions in the Middle East are mainly a product of the Shia-
Sunni212 divide which emerged out of a succession dispute following the Prophet Muhammad’s213
death. Extremist groups have concocted ad hoc misinterpretations of Islamic law to justify
violence against rivals within the Muslim faith, particularly in their rationalization of murder of
members of the Shia minority214. History has habituated groups, including government agents, to
discriminate and new laws have not eradicated the ingrained practice.
In a global era fraught with politicized anti-terrorism campaigns, nations have not
infrequently discriminated against minority ethnicities and religious factions under the pretext of
national identity, unity, or security. The Pew Research Center found the number of governments
with “high” or “very high” restrictions on religion grew from 40 in 2007 to 52 in 2017. Those
governments enacted laws and policies showing preference for specific groups, requiring specific
groups to register, and limiting religious activity. In the same period, harassment and violence
against religious groups increased, as did intrareligious hostilities215. Lamentably, freedom of
religion has fallen victim with the resurgence of the ethno-state. The Constitution of the
208
Klain, Doug (2020). Russian assassinations send chilling message of impunity.
https://www.atlanticcouncil.org/blogs/ukrainealert/russian-assassinations-send-chilling-message-of-impunity/
[accessed 21 May 2020]
209
Wertz, Joseph, Azrael, Deborah, Berrigan, John, Barber, Catherine, Nelson, Eliot, Hemenway ,David, Salhi,
Carmel, & Miller, Matthew (2020). A typology of civilians shot and killed by US police: A latent class analysis of
firearms legal intervention homicide in the 2014—2015 national violent death reporting system. Journal of Urban
Health (online). https://doi.org/10.1007/s11524-020-00430-0 [accessed 22 May 2020]
210
Ahmad, Sara (1996). Judicial complicity in communal violence in India. Northwestern Journal of Law &
Business, 17(1), 320—350. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1447
[accessed 22 May 2020].
211
India Parliament, Citizenship (Amendment) Act of 2019, An Act Further to Amend the Citizenship Act, 1955,
DL—(N)04/0007/2003—19 (2019). http://egazette.nic.in/WriteReadData/2019/214646.pdf [accessed 22 May 2020].
212
Nuruzzaman, Mohammed (2019). Contemporary Shia-Sunni sectarian violence. Oxford Bibliographies in
International Relations. https://doi.org/10.1093/OBO/9780199743292-0249 [accessed 22 May 2020].
213
Peace be upon him, ‫صلى هللا عليه وسلم‬
214
Hassan, Muhammad (2017). The danger of takfir (excommunication): Exposing IS’ takfiri ideology. Counter
Terrorist Trends & Analyses, 9(4), 3—12. https://www.jstor.org/stable/26351508 [accessed 22 May 2020].
215
Pew Research Center (2019). A closer look at how religious restrictions have risen around the world.
https://www.pewforum.org/2019/07/15/a-closer-look-at-how-religious-restrictions-have-risen-around-the-world/
Maldives denies citizenship to non-Muslims and requires all legislators, cabinet ministers,
judges, and the President to be followers of Sunni Islam216. The Myanmar Constitution makes
forty-three mention of “national races” and resolves the people’s steadfast adherence to “non-
disintegration of national solidarity,” an aim which it seeks to achieve via strategic non-
recognition of citizenship for Rohingya Muslims217. Despite castigation of ethnic cleansing and
genocide in the UN, primarily-Buddhist Myanmar has very nearly successfully completed its
mission of driving all members of minority Rohingya Muslims across its western borders and
into Bangladesh218. Meanwhile, Chinese authorities have permitted minority Uighur Muslims in
northwest to remain citizens, but they routinely face internment in reeducation “hospitals” where
they may be forced to violate their religious code by eating pork, drinking alcohol, and breaking
Ramadan fasts219.
Untold numbers of black South Africans were murdered, beaten, and falsely imprisoned
during apartheid, and then even after apartheid fell, tribalism spread among black people, further
splintering their fragile society. Likewise, intra-racial tribal divisions persisted through the latter-
half of the 20th century in Chad, Angola, Sudan, Nigeria, Burundi, Kenya, and Rwanda
following decolonization and resistance to national borders the former colonial powers
demarcated in a seemingly unfair or arbitrary fashion in the opinion of native Africans220. Race
and religion are the most common bases for discrimination, but it occurs across many
demographic criteria, including political affiliation. Civil conflicts spanning decades in El
Salvador, Guatemala, and Honduras pitted capitalists against communists and local farmers,
costing hundreds of thousands of lives. The resulting social, economic, and civil collapse in
Central America helped give rise to powerful narcotics trafficking organizations who seized
control of swathes of territory, propelling caravans of tens of thousands of refugees northward in
search of asylum221. Economic, political, and social forces have consistently factored into
conflicts resulting in genocide, ethnic cleansing, epic migrant crises, and dismantling of the
elements of statehood; each of these cataclysms is unique, but they all thrive on divisions along
sectarian lines whether race, color, language, political or other affiliation.
Discrimination is evident not only in matters of immediate life and death; it is also the
implied reason why racial and other minorities suffer environmental injustice. In Canada, black
and indigenous native communities suffer disproportionate impacts from manufacturing and
waste-management systems compared to whites, resulting in abnormally high rates of cancer and
economic despair in minority communities222. Australian aboriginal people likewise face greater

216
Const. of Maldives (2008), art. 9(d), 73, 109(b), 130(a)(3), 149(b)(1).
https://storage.googleapis.com/presidency.gov.mv/Documents/ConstitutionOfMaldives.pdf [accessed 22 May 2020].
217
Const. of the Republic of the Union of Myanmar (2008). http://www.myanmar-law-library.org/law-library/laws-
and-regulations/constitutions/2008-constitution.html [accessed 22 May 2020].
218
Arnold, Roger (2018). Myanmar military leaders must face genocide charges – UN report.
https://news.un.org/en/story/2018/08/1017802 [accessed 22 May 2020].
219
Samuel, Sigal (2018). China is treating Islam like a mental illness.
https://www.theatlantic.com/international/archive/2018/08/china-pathologizing-uighur-muslims-mental-
illness/568525/ [accessed 22 May 2020].
220
Crary, David (1986). African continent tormented by tribal conflicts: Problem has triggered wars, toppled
governments and wrecked courtships. https://www.latimes.com/archives/la-xpm-1986-03-23-mn-5583-story.html
[accessed 24 May 2020].
221
Borger, Julian (2018). Fleeing a hell the US helped create: why Central Americans journey north.
https://www.theguardian.com/us-news/2018/dec/19/central-america-migrants-us-foreign-policy [accessed 24 May
2020].
222
Waldron, Ingrid (2018). There’s Something in the Water. Nova Scotia: Fernwood Publishing.
exposure to harmful pollutants than their white counterparts223. Economically disadvantaged
communities of non-European descent have faced environmental racism from corporations in
Nigeria224, Venezuela, Sri Lanka, and Brazil225. One researcher asserted the toxic water crisis in
Flint, Michigan was due to systemic racism in a capitalist system “meant to devalue ‘surplus’
people, who are almost always those of color”226. Critics of racial capitalism suggest government
policies deprive communities of color the tools to defend themselves against environmental
injustice. A growing body of research posits white communities enjoy privilege of clean air and
water by offloading pollutants onto poorer districts which are most often primarily non-white227.
Nevertheless, impoverished and marginalized communities are at comparative financial
disadvantage to corporations which provide jobs, tax revenues, and political contributions. As a
result, economic productivity and questionable political reasoning eclipse calls for human rights
and justice.
Whether privately or publicly instigated, intentional or coincidental, minorities and
politically-powerless bear the brunt of abuses to their human and civil rights. Communities of
color and lower socioeconomic status are more likely to suffer environmental destruction, or
injuries to their health, safety, security, and livelihoods. Making these issues more complicated, a
combination of factors give sovereign nations de facto and de jure immunity to breach treaty and
customary laws within their domestic borders among their own people. When transgressions are
exceptionally provocative, leaders may be tried in the international court of public opinion via
media outlets and regional or UN diplomatic forums, however, harsh criticism seldom inspires
change. Domestic authorities may pantomime investigations, and occasionally, a scapegoat agent
of the state stands before a court on charges. Even then conviction is rare because public
officials, like corporate and wealthy elite defendants, generally have budgets to afford robust,
energetic legal defense teams who can erode the perceived reliability of any evidence short of a
confession, which may itself be insufficient to convict without a video, audio, or textual record
of the crime. The OJ Simpson double murder case is a prime example of how wealth can be used
as a positive legal defense even for private citizens228. There are, of course, scores of cases
showing how the rich and powerful natural or corporate persons use their money to get away
with crimes. There is also no shortage of cases showing how police and prosecutors use a
defendant’s indigence to persuade them to enter into plea bargains, even if they are innocent.
This section will provide support for the notion that governments, corporations, and the
wealthiest private citizens around the world enjoy relative immunity from appreciable legal

223
Cooper, Nathan, Green, Donna, Sullivan, Marianne, & Cohen, David (2018). Environmental justice analyses may
hide inequalities in Indigenous people's exposure to lead in Mount Isa, Queensland. Environment Research Letters.
https://iopscience.iop.org/article/10.1088/1748-9326/aad295 [accessed 24 May 2020].
224
World Rainforest Movement (2000). Environmental racism in Nigeria. https://wrm.org.uy/articles-from-the-wrm-
bulletin/section1/environmental-racism-in-nigeria/ [accessed 24 May 2020].
225
Temper, Leah, Demaria, Frederico, Scheidel, Arnim, Del Bene, Daniela, & Martinez-Alier, Joan (2018). The
Global Environmental Justice Atlas (EJAtlas): ecological distribution conflicts as forces for sustainability.
Sustainability Science, 13, 573—584. https://doi.org/10.1007/s11625-018-0563-4 [accessed 24 May 2020].
226
Pulido, Laura (2016). Flint, environmental racism, and racial capitalism. Capitalism Nature Socialism, 27(3), 1—
16. https://www.tandfonline.com/doi/full/10.1080/10455752.2016.1213013 [accessed 24 May 2020].
227
Pulido, Laura (2017). Geographies of race and ethnicity II: Environmental racism, racial capitalism and state-
sanctioned violence. Progress in Human Geography, 41(4), 524—533.
https://journals.sagepub.com/doi/abs/10.1177/0309132516646495 [accessed 24 May 2020].
228
Mueller, Christopher (1996). Introduction: O.J. Simpson and the criminal justice system on trial. University of
Colorado Law Review, 67(4), 727—745. http://scholar.law.colorado.edu/articles/684 [accessed 21 May 2020].
action while the poor suffer punishment and abuse contrary to the spirit and letter of international
human rights law, domestic constitutional law, and sui generis municipal civil rights acts.
On the basis of class and race
In 1971, social scientists discussed the logic of mass incarceration of minorities and the
poor, saying “The more economically stratified a society becomes, the more it becomes
necessary for the dominant groups in society to enforce through coercion the norms of conduct
which guarantee their supremacy”229. The majority ethnicity – white in the US – is the dominant
racial group while the other dominant force is capital. Elite wealthy individuals, corporations,
and political action groups use their financial resources as means to achieve and retain
supremacy over people of lower socioeconomic status, and governments regularly assist in the
process even though the democratic minority of any society falls on the lower end of the wealth
scale. The corporate coup d’etat has only widened the gap between rich and poor, and ipso facto,
reinforced the dominant position of the upper crust230.
When a California man shoplifted a combined $153.54 worth of videos from a retail store
over two visits, he was sentenced to between fifty years and life in prison under the habitual
offender rule because he had a prior conviction. In a 5-4 decision, the USSC denied a final
appeal, holding the sentence did not violate the gross disproportionality principle. The dissent
commonsensically concluded, “If Andrade’s sentence is not grossly disproportionate, the
principle has no meaning”231. The Andrade case demonstrated the potential for unreasonably
harsh sentences under “three strikes” rules, but moreover, it stood as another example of how
courts have for decades sentenced “street crime” offenders more harshly than white-collar
criminals232. In 2018, US federal criminal courts handled 213 cases of securities and investment
fraud, 171 cases of mortgage fraud, 425 health care fraud offenses. Median loss per case for
securities fraud was $2.58 million, yielding an average prison sentence of 54 months233. For
mortgage fraud, median losses were $1.31 million, and prison sentences averaged 28 months234.
Average damage per incident in health care cases averaged $1.04 million and sentences lasted 30
months235. By comparison, there were 1,805 cases of robbery in federal courts in 2018, when the
median loss was $2,076 for which offenders received an average prison sentence of 109 months.
To summarize, the value of losses is inversely proportional to the length of prison sentences in
these cases, and in the opinion of the judiciary, the fact that a man may serve a life sentence for
stealing $153.54 in merchandise while another serves just over two years for stealing $1.31
million is not unsettling, nor even “disproportionate”.

229
Chambliss, William & Seidman, Robert (1971). Law, Order, and Power. Boston: Addison-Wesley Publishing
Company, p. 33.
230
Turner, Lou (2014). Corporate coup d’etat. The Black Scholar: Journal of Black Studies and Research, 44(1), 30
—46. http://dx.doi.org/10.1080/00064246.2014.11641210 [accessed 21 May 2020]
231
Lockyer v. Andrade, 538 US 63 (S. Ct. 2003), at 77 and 83.
232
Pollack, Harriet & Smith, Alexander (1983). White-collar vs street crime sentencing disparity: How judges see
the problem. Judicature, 67(4), 174—182.
233
United States Sentencing Commission (2019). Quick facts: Securities and investment fraud offenses.
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Securities_Fraud_FY18.pdf
[accessed 19 May 2020]
234
United States Sentencing Commission (2019). Quick facts: Mortgage fraud offenses.
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Mortgage_Fraud_FY18.pdf
[accessed 19 May 2020]
235
United States Sentencing Commission (2019). Quick facts: Health care fraud offenses.
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Health_Care_Fraud_FY18.pdf
[accessed 19 May 2020]
 Although there is less publicly-accessible data available for Australia, Canada, and the
UK, sentences in those countries seem to follow the same general model as in the US. A survey
of 2014 UK Crown Court statistics showed average sentences across all categories of offense
severity were 1.51 years for fraud, 2.66 years for burglary, 2.84 years for lesser drug crimes, 3.31
years for significant drug crimes, and 4.68 years for robbery236. Despite fraud being the most
costly category of crime, Australian courts still view imprisonment as a last resort237 even though
lenience may disincentivize change in behavior among offenders. Judges justify the sentencing
disparity under assumptions that white-collar crime is of lower risk to the public, that potential
white-collar criminals are deterred by prosecution of one member of their cohort, and that
recidivism is lower among white-collar offenders238, but heretofore empirical data cannot reliably
support these presuppositions239. The Canadian government implemented a two-year mandatory
minimum sentence for fraud cases involving more than $1 million240, but that did not prevent
aggregate losses from nearing $2 billion in 2019241. Oddly, courts have shown enthusiasm for
sentencing nonviolent drug offenders to more prison time than perpetrators of Ponzi schemes and
other frauds which cost investors and consumers some $100 billion a year242. If proportionality
were the basis for fair sentencing, nonviolent bank robbers whose average take is roughly $3,500
would not receive a five year prison sentence when white-collar criminals receive half the length
of incarceration for crimes inducing one thousand times greater losses243.
If legislatures, executive agencies, or high courts more adequately recognized the
extraordinary threats that corporate and professional financial criminals pose to the public, the
media may apportion more time to the issues, and public awareness could rise. Financial crime is
boring compared to robbery, and fraudulent accounting is not as easy to understand or
sensationalize as violent crime, but perhaps if governments handled illicit activity in financial
236
United Kingdom Sentencing Council (2015). Crown Court sentencing survey 2014.
https://www.sentencingcouncil.org.uk/analysis-and-research/crown-court-sentencing-survey/ccss-annual-2014-
results/ [accessed 19 May 2020]. Consider that recidivism is unnecessary for criminals who steal millions of dollars.
237
Johns, Rowena (2012). Sentencing in fraud cases. Sydney: Judicial Commission of New South Wales.
https://www.judcom.nsw.gov.au/wp-content/uploads/2016/07/research-monograph-37.pdf [accessed 19 May 2020]
238
Nyman Gibson Miralis (2017). Does our treatment of white-collar crime need to change?
https://ngm.com.au/does-our-treatment-of-white-collar-crime-need-to-change/ [accessed 19 May 2020]
239
Fredericks, Katie, McComas, Rima, & Weatherby, Georgie (2016). White collar crime: recidivism, deterrence,
and social impact. Forensic Research & Criminology International Journal, 2(1), 5—14.
https://doi.org/10.15406/frcij.2016.02.00039 [accessed 27 May 2020]. A survey found members of the general
public most often perceive white-collar crime as more prevalent than violent crime, and both crime types as having
roughly the same detrimental impact on society. Criminal justice statistics showed rates of arrest and conviction
following release from prison were higher among white-collar criminals than violent criminals.
240
Government of Canada (2011), Standing up for Victims of White-Collar Crime Act (S.C. 2011, c. 6).
241
VIze, Shayla (2020). Canadian Anti-Fraud Centre releases top 10 frauds of 2019.
https://www.chch.com/canadian-anti-fraud-centre-releases-top-10-frauds-from-2019/ [accessed 19 May 2020].
Losses neared $100 million for 2019 with less than 5 percent of victims reporting.
242
Fletcher, Emma & Pessanha, Rubens (2017). Cracking the invulnerability illusion: Stereotypes, optimism bias,
and the way forward for marketplace scam education. https://www.bbb.org/globalassets/shared/media/truth-about-
scams/bbb-scamprogram-whitepaper-08-digital-0630.pdf [accessed 19 May 2020]; Wells, Joseph (2020). Ponzi
schemes: What is a Ponzi scheme. https://www.acfe.com/ponzi-schemes.aspx [accessed 19 May 2020].
243
In 2017, the FBI reported average bank robbery cases resulted in losses of $3,483 per incident. Federal Bureau of
Investigation (2020). Robbery. https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017/topic-pages/robbery
[accessed 19 May 2020]; Median sentence duration for robbery in Federal Courts for 2017 was 60 months. United
States Sentencing Commission (2017). Statistical information packet, Table 7.
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/state-district-
circuit/2017/dcc17.pdf [accessed 19 May 2020].
industries with the same vigor they tackle drug crime, innocent investors would not lose their
homes, retirement savings, or children’s college fund to fraud. White-collar crimes like fraud,
embezzlement, money laundering, corruption, and insider trading may not involve firearms, and
thus they may not evoke the same visceral fear as a mugging or home invasion, but they disrupt
and distort economies at much broader scale. White-collar criminals were key players in the
1997 Asian currency crisis244, 2007—2008 global financial crisis245, and the European sovereign
debt crisis246. Instead of prioritizing malfeasance resulting in the greatest losses, governments
consistently deregulate financial industries which invariably leads to more opportunity to engage
in risky behavior and commit serious offenses. Simultaneously, activist courts refine the
definition of white-collar crime with the effect of legalizing behaviors that were once considered
criminal247. An combination of corporate lobbying, incomplete media coverage, and government
actions favoring the wealthy few, who do the greatest harm, has shifted the “law and order”
political conversation away from the most dangerous offenders and onto poorer, more vulnerable
groups with the overarching message that prison is for the poor.
Worthy of note are racial demographic differences between white-collar crime, where the
most common offender race is white, and nonviolent street crimes (theft, drug offenses, burglary)
where the largest offender race is black. A seminal study from the University of Michigan Law
School found that, ceteris paribus, the odds of black detainees facing a charge were 1.75 times
higher than those of white detainees, and blacks receive significantly longer sentences than
whites for the same crime248. In The New Jim Crow, Michelle Alexander repudiated the
American justice system for its criminalization and mass incarceration of people of color. In only
three decades, the US prison population grew by a factor of five, rising to 2.4 million inmates as
of late, three-fifths of whom are African American or Latino, and a significant portion of whom
are serving time for nonviolent drug convictions. Alexander argued the very same American
legal culture which deprived non-white citizens of rights through two centuries of slavery
followed by a century of segregation and Jim Crow has surreptitiously reinstituted a racial caste
system under the guise of law and order249. One would be remiss to omit the essence of
institutional racism given the legal milieu where a cadre of white men have robbed billions of
dollars from financial institutions while serving in their ranks and upon conviction spend a
couple years in minimum security prisons awaiting retirement in whatever offshore banking
country they stashed their ill-gotten gains, yet simultaneously black men who attempt to abscond
244
Overholt, William (1999). Thailand’s financial and political systems: Crisis and rejuvenation. Asian Survey,
39(6), 1009—1035. https://doi.org/10.2307/3021150 [accessed 20 May 2020]
245
Krambia-Kapardis, Maria (2016). Financial crisis, fraud, and corruption. Corporate Fraud and Corruption, 5—
38. https://doi.org/10.1057/9781137406439_2 [accessed 20 May 2020]
246
Herlin-Karnell, Ester (2012). White-collar crime and European financial crises: Getting tough on EU market
abuse. European Current Law, 10. https://research.vu.nl/ws/portalfiles/portal/45936952/102012Focus_copy.pdf
[accessed 20 May 2020].
247
Dirks v. SEC, 463 US 646 (US S. Ct. 1983). In a 6-3 decision, the Court narrowed the definition of insider
trading because he had not personally profited on the breach of duty. The dissent found no reason to construct the
law in such a way, concluding the Court should have decided against Dirks, and that “Any other result is a
disservice to this country's attempt to provide fair and efficient capital markets.” By that time, the Court had for
years demonstrated favor for white-collar criminals as compared to non-white-collar criminals. See Cohen, Adam
(2020). Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America. New York: Penguin
Press, at 340—342.
248
Rehavi, Marit & Starr, Sonja (2014). Racial disparities in Federal criminal sentences. Journal of Political
Economy, 122(6), 1320—1354. https://repository.law.umich.edu/articles/1414 [accessed 19 May 2020].
249
Alexander, Michelle (2010). The New Jim Crow: Mass incarceration in the age of colorblindness. New York:
The New Press.
with a few thousand dollars from teller windows at the same banks receive twice or three times
the sentence in far less accommodating correctional facilities where they await only poverty,
discrimination in the hiring process due to criminal record, and political disenfranchisement
upon release.
Blacks and Latinos comprise disproportionately high percentages of the total number of
American prisoners compared to the sizes of their respective races in the overall population. A
causal relationship can be inferred between higher incarceration rates among minorities and their
increased odds of experiencing unwarranted stops and searches. The New York City Police
Department’s (NYPD) “stop-and-frisk” strategy incomparably demonstrated racial profiling by
police. Between 2002 and 2019, the NYPD recorded nearly 5.2 million stops, some 90 percent of
which involved blacks and Latinos who represented only about 55 percent of the city’s
population. Roughly 90 percent of the stops were fruitless, and despite the NYPD’s profiling of
blacks and Latinos, police found weapons at a higher rate among whites in the relatively few
instances when they stopped whites250. Some of the greatest judicial opinions in history have
been from the dissent, such as those from USSC Justices Kagan and Sotomayor on the matter of
stop-and-frisk types of warrantless searches and seizures. When the majority held reasonable
suspicion is not required for police to conduct such stops, Justice Kagan said it “practically
invites” abuse. Justice Sotomayor protested that “it is no secret that people of color are
disproportionate victims of this type of scrutiny” which “says that your body is subject to
invasion while courts excuse the violation of your rights”251.
Just as the military industrial complex has motive to influence public policy toward
continuous warring, the private companies profiting from incarceration have their many irons in
local, state, and federal government fires. Annual revenues in the prison industrial complex in
the US are around $120 billion between prisons, jails, parole, probation, legal fees, civil asset
forfeiture, bail fees, commissary and telephone costs for inmates. Another $60 billion and rising
is allocated to police252 who are in higher demand when a more active criminal justice system
seeks to prosecute and incarcerate more people. Corrections officer unions and private prison
corporations, among other profit-seeking enterprises, spend millions of dollars each year in their
lobby of American congressional leaders with the aim of expanding the prison system by
redrafting laws to criminalize more behaviors, expand police and prosecutorial budgets so more
arrests can be made, and to incarcerate more individuals for longer stretches253. As a result, the
opening of a new prison is often pitched as a job-creating opportunity for a local community.
Prisons are essential parts of any legal order; they contribute jobs and instill a sense of
safety which further economic growth and development. However, their proliferation and
ubiquity should be viewed as harbingers of social and economic decay rather than opportunity. A
comparative study of twelve European countries, the US, Canada, and Australia showed that
rates of poverty and incarceration nearly always share a positive correlation254. In spite of

250
American Civil Liberties Union of New York (2020). Stop-and-frisk data. https://www.nyclu.org/en/stop-and-
frisk-data [accessed 20 May 2020].
251
Utah v. Strieff, 136 S. Ct. 2056 (US Supreme Court 2016), at 2071 (Sotomayor) and 2074 (Kagan).
252
Wagner, Peter & Rabuy, Bernadette (2017). Following the money of mass incarceration.
https://www.prisonpolicy.org/reports/money.html [accessed 20 May 2020].
253
Eisenberg, Avlana (2016). Incarceration incentives in the decarceration era. Vanderbilt Law Review, 69(1), 71—
139.
254
Gottlieb, Aaron (2017). Incarceration and relative poverty in cross-national perspective: The moderating roles of
female employment and the welfare state. Social Science Review, 91(2), 293—318.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5663300/ [accessed 20 May 2020].
associated risks, the US appears abnormally committed to deprivation of liberties and freedoms.
With five percent of the world’s population and one-quarter of its prisoners, corrections statistics
from the US are astounding due to their sheer volume. Around a quarter of the population has a
criminal record, and roughly one-third of citizens have a family member who has been to jail or
prison. Some 7 million people – more than 2 percent of the national population – are in prisons
or on probation. Three-quarters of the 631,000 inmates of local jails have not been convicted255;
rather, they are unable to pay bail and therefore serving pretrial sentences despite their
constitutional right to presumption of innocence. Each year, thousands of defendants plead guilty
to crimes they did not commit just to avoid pretrial detention, or because they cannot afford a
vigorous defense knowing that, despite their innocence, they can still be convicted at trial and if
they do not accept a plea bargain, as the prosecutor is likely to add charges and pursue harsher
punishments as a “trial penalty”256. Nobody knows exactly how many innocent people are in
prison, but evidence suggests it is a sizeable proportion. A study found that in capital murder
cases alone, the estimated rate of false convictions is 4.1 percent – far too many to classify as
statistical outliers257.
Minority groups still suffer disproportionately high incarceration rates as compared to
258
whites in spite of recent reductions in the prison population. The USSC, once again, had its
hand in the making of this injustice. In 1987, the NAACP Legal Defense Fund studied the
intersections of race and sentencing in two thousand murder cases in Georgia, finding black
defendants were slightly more likely to be sentenced to death than white defendants, and the
disparities grew depending on the race of the victim – convicts of homicide against whites were
4.3 times more likely to be sentenced to death than those whose victims were black. To the
defense, and indeed to a statistician, these numbers seemed like cause for concern, but not in the
opinion of the 5-4 majority. Perhaps protecting the honor and traditions of the criminal justice
system from meddling social scientific influence, the majority denied any causal link between
race and sentencing outcomes, recording apprehension that “[the Court] could soon be faced with
similar claims as to other types of penalty”. The dissent sentiently described the majority opinion
as having been “based in part on the fear that recognition of [the racial bias] claim would open
the door to widespread challenges to all aspects of criminal sentencing. Taken on its face,” the
dissent continued, “such a statement seems to suggest a fear of too much justice”259. If inferential
statistics cannot support a finding of bias in court proceedings, and the only means of proving
unlawful racial prejudice is to possess explicit, documented evidence of intentional behavior,
then the situation resembles legal views on corruption. Consequently, police, prosecutors, judges,
and others who wish to discriminate against a group need only apply a modicum of furtiveness,

255
Sawyer, Wendy & Wagner, Peter (2020). Mass incarceration: The whole pie in 2020.
https://www.prisonpolicy.org/reports/pie2020.html [accessed 20 May 2020]
256
Cohen, Adam (2020). Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America.
New York: Penguin Press, at p. 331.
257
Gross, Samuel (2017). What we think what we know, and what we think we know about false convictions. Ohio
State Journal of Criminal Law, 14(2), 753—786. https://repository.law.umich.edu/articles/1882 [accessed 20 May
2020]
258
Gramlick, John (2019). The gap between the number of blacks and whites in prison is shrinking.
https://www.pewresearch.org/fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison/
[accessed 20 May 2020]. In 2017, black people made up 12 percent of the national population and 33 percent of the
prison population; Hispanics were 16 percent of the population and 23 percent of prisoners; whites were 64 percent
of the population and 30 percent of prisoners.
259
McCleskey v. Kemp, 481 US 279 (Supreme Court 1987), at 314—15 (majority) and 339 (dissent).
and so long as none of the co-conspirators divulge their trade secrets, they can continue on with
business as usual.
The poorer a person is, the more likely they are to be incarcerated260. Coincidentally, non-
dominant racial groups are generally poorer than the majority ethnicity. Median household
income for black and Hispanic Americans is significantly lower than for white and Asian
Americans261. In the US, the relationship between race and socioeconomic status is fostered in
part by the prison system whose occupants are mostly poor, black, and brown. When a member
of a family is in prison, especially a father, household income suffers even after the prisoner’s
release. More than half of US prisoners have children, and those children are significantly more
likely to drop out of school, be suspended or expelled, and eventually become inmates
themselves262. Criminal records significantly affect ability to obtain employment, especially for
black people263, many of whom find themselves, their families, and their communities muddled
in a transgenerational pattern of incarceration and poverty.
In 1970, the USSC upheld rights of welfare recipients to a fair evidentiary hearing prior
to termination of benefits because “welfare provides the means to obtain essential food, clothing,
housing, and medical care”264. A few years later, Pink Floyd’s “Us and Them” commented on the
persistent lack of opportunity for career success and upward social mobility, echoing the
American Court’s pronouncement on the need for government assistance: “Down and out…it
can’t be helped if there’s a lot of it about”265. Since the early 70s, however, the logic of personal
responsibility come to dominate mainstream politics with bipartisan support for cuts to social
assistance programs266. The presupposition that external factors have null or moot impacts on
socioeconomic status has exerted downward pressure on welfare spending for decades, which
may help explain increasing inequality across the United States. While politicians and their
doppelganger voters blamed the poor for their circumstances, the number of American families
living in extreme poverty nearly doubled between 1996 and 2011, resulting in more than 2.8
million children subsisting on $2 per day or less267.
Again, Pink Floyd’s “Us and Them” encapsulates a crisis in short verse, “With,
without…and who’ll deny it’s what the fighting’s all about?”268 Apparently, many people would
deny any relationship between social discord and inequality. Welfare and other “entitlements”
have become the objects of toxic politics in both the US and Europe. In Europe, welfare
260
Cohen, Adam (2020). Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America.
New York: Penguin Press, at p. 344.
261
United States Census Bureau (2020). Current population study, HINC-04 (all households).
https://www.census.gov/data/tables/time-series/demo/income-poverty/cps-hinc/hinc-04.html [accessed 20 May
2020]. In 2018, Asian households had median income of $87,194; white households earned $66,493; Hispanic
households earned $51,450; black households earned $41,361.
262
Pew Charitable Trusts (2010). Collateral costs: Incarceration’s effects on economic mobility.
https://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2010/collateralcosts1pdf.pdf [accessed 20 May
2020].
263
Pager, Devah, Western, Bruce, & Sugie, Naomi (2009). Sequencing disadvantage: Barriers to employment facing
young black and white men with criminal records. Annals of American Academy of Political Science, 623(1), 195—
213. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3583356/ [accessed 20 May 2020].
264
Goldberg v. Kelly, 397 US 254 (Supreme Court 1970), at 264.
265
Waters, Roger (1973). Us and them. Dark side of the moon [album]. London: Abbey Road Studios.
266
Williams, H. Howell (2017). “Personal responsibility” and the end of welfare as we know it. Politics Symposium:
Political Science & Politics, 50(2), 379—383. https://doi.org/10.1017/s1049096516002870 [accessed 18 May 2020]
267
Shaefer, H. Luke & Edin, Kathryn (2012). Extreme poverty in the United States, 1996 to 2011. National Poverty
Center. http://www.npc.umich.edu/publications/policy_briefs/brief28/policybrief28.pdf [accessed 13 May 2020]
268
Waters, Roger (1973). Us and them. Dark side of the moon [album]. London: Abbey Road Studios.
chauvinism is part of a winning strategy for new-right-wing parties who select and exclude who
receives benefits based on ethnic criteria and immigration status269. Republicans in Washington
have increased deficit spending with the intent of cutting social security benefits270 despite
overwhelming voter support for the social assistance programs across party lines271 and though it
may negatively impact Republican voters most272. Despite the apparently counterproductive
effects of cuts to social programs, right-wing voters and media pundits still belch out the vitriolic
rage for the “welfare queen” – a myth of rampant welfare fraud manufactured by the 1976
Reagan Presidential campaign – as if the beneficiaries of public assistance programs are living
opulent lifestyles in lavish public housing projects with their hoard of food stamps273.
Nonetheless, austerity politics are championed on all sides of the partisan spectrum, leaving a
growing contingent of citizens without opportunity, dignity, nor hope.
In $2.00 A Day: Living on Almost Nothing in America, Edin and Shaefer illuminated the
stigmas of welfare: “Although negative racial stereotypes had plagued welfare throughout its
existence, the emphasis on race was more widespread and virulent after Reagan…[yet] even in
Reagan’s day, [the typical welfare recipient] was white.” Once an essential program upheld by
the Supreme Court as a lifeline for destitute families, the meaning of the word “welfare”
morphed and became synonymous with indolence and irresponsibility through the 1980s and 90s
until the Clinton administration passed reforms limiting direct assistance. Edin and Shaefer cited
recent surveys finding 60 to 70 percent of the American public believes the government is
“spending too little on assistance for the poor,” but those numbers drop when interviewers ask
about “welfare,” which is perceived as a threat to normative ethics and blamed for a breakdown
of the American family unit. By the time Reagan unleased his reform drive, “Americans were
primed to buy the story that [welfare], a system that went so against the grain of self-sufficiency
they believed in, was the main culprit spreading single motherhood,” said Edin and Shaefer274
who could have commented at length on deadbeat dads – the more plausible malefactor in the
single mother dilemma. Although budget expenditures for social and community assistance have
risen consistently through administrations, amendments to welfare statutes ensured less of that
money went directly to parents and children. One relatively stable program that stands as a rare
success story is free school breakfast and lunch for children from families living at or below 130
percent the poverty threshold and reduced school meals for children of families earning 130—

269
Albrekt, Larsen (2019). General versus program-specific welfare chauvinism: The case of attitudes to Eastern
European workers’ access to benefits and services in Denmark. Denmark: Aalborg Universitet.
https://vbn.aau.dk/ws/portalfiles/portal/235917600/Program_specific_welfare_chauvinism_2016_1606.pdf
[accessed 22 May 2020].
270
Zelizer, Julian (2017). Blowing up the deficit is part of the plan.
https://www.theatlantic.com/politics/archive/2017/12/blowing-up-the-deficit-is-part-of-the-plan/548720/ [accessed
22 May 2020].
271
Naitonal Academy of Social Insurance (2014). Public opinions on social security.
https://www.nasi.org/learn/social-security/public-opinions-social-security [accessed 22 May 2020]. 72 percent of
Republicans, 81 percent of independents, and 87 percent of Democrats said they don’t mind paying social security
taxes.
272
Green, Joshua (2017). Social security cuts target Trump voters. https://www.bloomberg.com/news/articles/2017-
06-01/social-security-cuts-target-trump-voters [accessed 22 May 2020].
273
Borrelli, Christopher (2019). Reagan used her, the country hated her. Decades later, the Welfare Queen of
Chicago refuses to go away. https://www.chicagotribune.com/entertainment/ct-ent-welfare-queen-josh-levin-0610-
story.html [accessed 22 May 2020]
274
Edin, Kathryn & Shaefer, H. Luke (2015). $2.00 a day: Living on almost nothing in America. New York:
Houghton Mifflin Harcourt Publishing Company, p. 13—16.
185 percent the poverty level275. If there is a solution to inequality, it undoubtedly relies on
education to help people develop skills to compete in fierce economies, though it also seems that
inequality and education share a common history in the United States.
Public school desegregation was a long, painful, embarrassing process that white
Southerners dragged out for years after the USSC declared segregation unconstitutional in
1954276. In 1956, the chairman of the House Rules Committee introduced the “Southern
Manifesto,” calling for resistance to implemention of the Court’s order277. Some twenty percent
of all Congressmen signed onto the plan. Southern delegates strongly opposed a series of pro-
integration and civil rights rulings in the Warren Court of the 1950s—60s, and after President
Johnson signed the Civil Rights Act of 1964, he admitted he had “lost the South for a
generation,” which turned out to be an optimistic estimate. Once a stronghold of Democrats, the
South crossed the aisle and developed a strategy to create a new Republican national majority by
exploiting racial prejudices among white voters278. At the end of Johnson’s term, Chief Justice
Warren retired, and the pro-civil rights agenda in Congress and the Court passed along with
Robert Kennedy, whose campaign-trail assassination delivered Republicans the White House279.
Following Nixon’s 1968 victory marred by tragedy, he set out to fulfill the Republican mandate
to deliver on demands from Southerners who pledged political support in exchange for less
federal attention to the civil rights movements. President Nixon’s judicial nominations left no
question as to his intent to move federal government away from issues of integration, racial
equality, and social justice. In 1969, Nixon sought to appease the South and entice its
constituency to continue its exodus from the Democratic Party by nominating South Carolina’s
Clement Haynsworth to the Supreme Court. When Haynsworth faced opposition for his anti-
civil-rights and anti-labor rulings, Nixon turned to Georgia’s G. Harold Carswell who, as a
candidate for Congress in 1948, swore to his “firm, vigorous belief in the principles of white
supremacy.” After Carswell’s narrow defeat, Nixon successfully nominated Northern
conservative Harry Blackmun. Nixon had set out to reconstitute the Court to have a conservative
majority, and he stopped at nothing short of spying, slander, and blackmail to achieve his goal of
removing liberal-leaning justices. By 1971, Nixon’s dream was within reach; he nominated
Virginian Richard Poff, who had been one of the 101 Senators and Representatives who signed
the Southern Manifesto. Under pressure from lawmakers, Poff withdrew his nomination, and
Nixon settled for the Chamber of Commerce’s unofficial minister of propaganda, Lewis Powell.
Despite opposition from black leaders who cried foul of Powell’s anti-integration voting record
while chairman of the Richmond, Virginia School Board, his confirmation had only one nay
vote280.
The new Southern strategy moved racism and discrimination from overt, explicit means
to having more subtle, implicit dimensions. Without tangible, incontrovertible incriminating
275
School Nutrition Association (2020). School meal trends & stats.
https://schoolnutrition.org/aboutschoolmeals/schoolmealtrendsstats/ [accessed 22 May 2020].
276
Brown v. Board of Education of Topeka, 347 U.S. 483 (Supreme Court 1954).
277
United States House of Representatives, Office of the Historian (2020). The Southern Manifesto of 1956.
https://history.house.gov/Historical-Highlights/1951-2000/The-Southern-Manifesto-of-1956/
278
Powell, John (2020). The new Southern strategy. https://belonging.berkeley.edu/new-southern-strategy [accessed
23 May 2020].
279
Astor, Maggie (2018). How Robert Kennedy’s assassination changed American politics.
https://www.nytimes.com/2018/06/01/us/politics/robert-kennedy-assassination-bobby-rfk.html [accessed 27 May
2020].
280
Cohen, Adam (2020). Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America.
New York: Penguin Press, at p. 59—71.
evidence of discrimination, courts will not render a decision on behalf of aggrieved minorities
even in the face of voluminous circumstantial and inferential evidence suggesting racial
motivation. In The New Jim Crow, Alexander said, “the courthouse doors have been shut”281.
Clearly, implicit bias is qualified on a subjective basis whereas lynching, poll-taxes, and public
segregation are irrefutably racist, but unspoken agreements can still have the intended effects.
White Americans may be inclined to view the modest legal changes of the latter-20th century as
marking an end to prejudice altogether while black and brown Americans have a different
perspective on semantics due to their personal experiences. A 2019 study by the Pew Research
Center found some 58 percent of whites and 84 percent of blacks felt slavery still has a
significant impact on the lives of black Americans, but Pew’s data suggested whether an
individual thinks that is a problem may depend even more on their race. When asked if the US
had done enough to create equal rights between races, 38 percent of whites and 78 percent of
blacks thought not. Blacks and whites were even more starkly divided on whether they thought
the two races would ever achieve equality; just 7 percent of white respondents predicted
permanent inequality, compared to 50 percent of black survey participants282. For those willing to
make conclusions using social scientific induction, there exist immense data from the past fifty
years which seem to imply socioeconomic indicators such as educational attainment and income
are strongly related to demographic variables like race, whether a child grows up in a rural,
urban, or suburban district, and the income and education levels of one’s parents.
More than sixty years after school desegregation, disparity in learning outcomes is still
pronounced between ethnicities, graduation rate differ between urban and suburban school
districts, and students face a growing digital divide283. Overall educational attainment inequality
probably would not exist had Nixon not set out to destroy the Warren Court. Not since Chief
Justice Warren’s leadership during Johnson’s “Great Society” and “War on Poverty” years has
there been a liberal majority on the Supreme Court. Each Court since Warren’s has only chipped
away protections for minorities and moreover, for the poor. In 1973, the USSC decided against
classifying the poor as a protected class in San Antonio School District v. Rodriguez284, and as a
result the Court failed to ensure any semblance of equality in education because it was the
Court’s opinion that education is a local matter not to be interfered with by the federal courts. In
2007, the Court did an about face in Parents Involved in Community Schools v. Seattle, a case
involving an equal funding policy for schools in Seattle and Louisville – a program very similar
to Rodriguez which aimed to improve educational outcomes for poor and minority students
through districtwide equal funding285. Considering these two cases, one can reasonably deduce
that in the Court’s opinion, it is not the federal government’s job to force local districts to
decrease inequalities between races and classes, but it is the federal government’s job strike
down local education policy designed to substantially reduce educational disparities between
races and classes. Sadly, such repressive logic is historically native to the American government,
which has not infrequently decriminalized nauseating behaviors against non-white, non-male,

281
Alexander, Michelle (2010). The New Jim Crow: Mass incarceration in the age of colorblindness. New York:
The New Press, at p. 137.
282
Horowitz, Juliana, Brown, Anna, & Cox, Kiana (2019). Race in America 2019.
https://www.pewsocialtrends.org/2019/04/09/race-in-america-2019/ [accessed 23 May 2020].
283
American Psychological Association (2017). Education and socioeconomic status.
https://www.apa.org/pi/ses/resources/publications/education [accessed 23 May 2020].
284
San Antonio School District v. Rodriguez, 411 U.S. 1 (Supreme Court 1973).
285
Parents Involved in Community Schools v. Seattle School District #1, et al., 551 US 701 (Supreme Court 2007).
non-property-owning, non-Christian persons while criminalizing those behaviors if perpetrated
upon the white community, especially when the offender was poor and black.
Prior to the Rodriguez, multiple State Supreme Courts had decided in favor of plaintiffs
like Rodriguez, but the USSC reversed and set the stage for accelerated inequality in the digital
age. During the Covid-19 pandemic, there were urban and rural students who could not attend
online classes because they did not have the resources while wealthier schools could afford to
lend iPads and laptops to pupils in the rare case that their families could not afford them286. The
flywheel turns through those formative childhood years, and the momentum of historic policies
still exerts force on poorer communities whose socioeconomic inertia undoubtedly affects crime
and substance abuse rates that politicians still cite as evidence of lack of morality287. In fact, it
was the immorality of the state itself that contributed most to those scenes. The wheels of
progress have turned slowly and ground to a halt more than once, leaving generations to deal
with the legacy of our odious past. It took nearly two-hundred thirty years of jurisprudence
before the Sixth Circuit Court of Appeals held, in a split decision, that children “have a
fundamental right to a basic minimum education, meaning one that can provide them with a
foundational level of literacy”288. Every nanoscopic advancement for the poor, people of color,
women, and even children has been met with malevolence in a society with selective attention
and phenomenally poor collective memory.
Forgotten people
The right to nationality underpins all other human rights. Without a nationality, one has
no formal connection to societal institutions. A stateless man or woman has no capacity before
the government to access education, health care, social assistance programs, civil or criminal
justice services, or most other aspects of formal economies. If a person does not have a
nationality, they are largely invisible to the law and their lives are relegated to living in fringes of
civilization. Because they lack a relationship to a government, which is the intermediary between
individuals and their human rights, stateless people are more susceptible to the most appalling
forms of abuse: human trafficking, sexual exploitation, slavery and forced labor, and in some
cases ethnic cleansing or genocide289. The right to national identity is the focus of two treaties290

286
Goldstein, Dana, Popescu, Adam, & Hannah-Jones, Nikole (2020). As schools move online, many students stay
logged out. https://www.nytimes.com/2020/04/06/us/coronavirus-schools-attendance-absent.html [accessed 23 May
2020].
287
Lerman, Amy & Weaver, Vesla (2013). Race and crime in American politics: From law and order to Willie
Horton and beyond, in Bucerius, Sandra & Tonry, Michael (eds) The Oxford Handbook of Ethnicity, Crime, and
Immigration https://doi.org/10.1093/oxfordhb/9780199859016.013.003 [accessed 23 May 2020].
288
Gary B., et al. v. Whitmer, et al., Nos. 18-1855/1871 (Sixth Cir. Ct. of App., 2020).
289
Herring, Tanya (2019). Protection and prevention interventions for stateless non-refugee and forced displaced
persons. New England Journal of Public Policy, 31(2), art. 12. https://scholarworks.umb.edu/nejpp/vol31/iss2/12
[accessed 21 May 2020].
290
Convention Relating to the Status of Stateless Persons, 360 U.N.T.S. 117 (1954); Convention on the Reduction of
Statelessness, 989 U.N.T.S. 175 (1961).
and extended in several other conventions291, but still there are estimated to be many millions of
stateless people around the world, one-third of which are children292.
The highest concentration of stateless people worldwide live between Myanmar,
Bangladesh, and Thailand. Myanmar continues to justify stripping the Rohingya Muslim
minority of their nationality under the 1982 Citizenship Law which, as authorized by the
Constitution293, vests in the state the power to decide which ethnicities qualify as “national races”
and which do not294. As if suffering cognitive dissonance, Myanmar promulgated the Citizenship
Law in the year after it joined the Convention on the Rights of the Child (CRC) – a treaty
containing provisions on non-discrimination and prevention of statelessness295. Since it has
become state-party to human rights treaties that mention statelessness and right to nationality296,
Myanmar has faced criticism of its internal laws on the basis that they unduly jeopardize its
fulfillment of treaty commitments297. In the face of domestic298 and international calls299 for
repeal or amendment of the 1982 Law, Myanmar has brazenly shirked censures and
responsibilities alike, instead carrying out missions to expel or execute nearly 1 million
Rohingya people in the country’s western border region.
Campaigns like those in Rakhine State require capital, human resources, and logistical
support along with the political will to enact, see through, and cover up, deny or shrug off crimes
against humanity. As Nazis relied on IBM technology in organizing the European holocaust300,
military campaigns would be inefficient if not impossible today without transportation, cellular
and satellite communications, coordinating assistance, financing and, obviously, weapons.
Although ancillary services are not directly involved in a conflict – or crime as the Rohingya
case stands – they are the support mechanisms that bring the action from planning to material
291
United Nations Office of the High Commissioner of Human Rights (2020). Right to a nation.
https://www.ohchr.org/EN/Issues/Pages/Nationality.aspx [accessed 21 May 2020]. At para. 4, “The right to a
nationality is recognized in a series of international legal instruments, including the Universal Declaration of Human
Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the International
Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the
Elimination of All Forms of Discrimination against Women, the Convention on the Nationality of Married Women,
the Convention on the Rights of Persons with Disabilities and the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families.”
292
United Nations Refugee Agency (2020). Statelessness around the world. https://www.unhcr.org/statelessness-
around-the-world.html [accessed 21 May 2020].
293
Myanmar Const. art. 346. (2008).
294
Burma Citizenship Law, MMR-130 (1982) at art. 4. Article 3 lists “Kachin, Kayah, Karen, Chin, Burman, Mon,
Rakhine or Shan” but not Rohingya.
295
Convention on the Rights of the Child, 1577 U.N.T.S. 3 (1989).
296
In addition to the CRC, Myanmar has also ratified the Convention on the Elimination of All Forms of
Discrimination against Women, 1249 U.N.T.S. 13 (1979) at art. 9, and the Convention on the Rights of Persons with
Disabilities, 2515 U.N.T.S. 3 (2006) at art. 18.
297
See Yanghee Lee, U.N. Human Rights Council, Report of the Special Rapporteur on the situation of human
rights in Myanmar, A/70/412 (6 October 2015). See also Yozo Yokota, U.N. Commission on Human Rights,
Situation of Human Rights in Myanmar E/CN.4/1993/3 (17 February 1993).
298
A 2012 proposal to reform the Law was turned down in 2013. See Arakan Project, U.N. Human Rights Council,
Submission to the UN Universal Periodic Review, UPR Working Group 23rd Session (2015) at para. 8,
299
The International Commission of Jurists recommended Myanam repeal or amend the Citizenship Law. See Sam
Zarifi, International Commission of Jurists, Implementable Action Plans from the ICJ to the New Parliament &
Government (3 May 2016), https://www.icj.org/wp-content/uploads/2016/06/Myanmar-Recommendation-to-NLD-
Gvt-Advocacy-Analysis-Brief-2016-ENG.pdf (last accessed 18 Mar 2019).
300
IBM (2001). IBM statement on Nazi-era book and lawsuit. https://www-
03.ibm.com/press/us/en/pressrelease/1388.wss [accessed 21 May 2020].
stages. Banks, weapons manufacturers, automobiles, even the garment industry shares a second
or third tier relationship with the Rohingya debacle. Still, the international legal order is probably
the single most significant preservation apparatus for Myanmar’s completion of its overt crimes
against humanity. Proof that there is no possible legal recourse for the Rohingya is unmistakable
in the facts. Nothing stopped Myanmar from forcing Rohingya to surrender their citizenship
cards in exchange for temporary registration cards after the 1982 Law was passed301. Nothing has
stopped Myanmar from denying Rohingya birth certificates, nor from forcibly removing them,
nor from raping, torturing, nor killing them, nor from burning their villages in the process of
involuntarily resettling them across the border in Bangladesh. The crimes have occurred for
decades and nobody could come to the Rohingya’s rescue because no citizens of other nations
were involved; it was all just the internal affairs of a sovereign state. Presently, nearly all
Rohingya have been stripped of their birthright citizenship, violently displaced and deported as
stateless people, and while the court of public opinion has tried and convicted Myanmar, no
reconciliation nor recompense is on the agenda.
As a borderline least-developed country302 struggling to manage its volatile, embryonic
identity after decades of severe economic sanctions303, Myanmar may have little to lose from its
defensive posturing and self-ignorance. Myanmar’s conduct highlights the central role
sovereignty plays regardless of what precipitates the Union’s actions, or non-actions in the case
of failure to grant citizenship to Rohingya populations who have for centuries resided in the
same geographical area of what is now Myanmar304. Despite the convincing case posited by the
Rohingya, and in the face of international decry of Myanmar’s behavior305, the Union stubbornly
clings to its narrative which internally legitimizes a range of human rights abuses against the
Rohingya. Ironically, the effects of Myanmar’s mala fide ostracism of Rohingya disrupt the same
“National solidarity” its Constitution purports to reinforce.
To Myanmar’s east in Thailand, organized criminal groups seek to exploit stateless and
marginalized populations like Rohingya. Thailand’s massive seafood export industry was
implicated in a scheme that enslaved thousands of Rohingya migrants. Thai and Malay officials
discovered jungle prison camps and mass graves where trafficking syndicates held their human
stocks before selling them to fishing companies306. The Rohingya were easy targets in a pre-

301
Nina Strochlic, See the Refugee Babies Born with Nowhere to Call Home, National Geographic (28 Dec 2018),
https://www.nationalgeographic.com/culture/2018/12/see-rohingya-babies-born-without-home/ (last accessed 21
Mar 2019).
302
UN Department of Economic and Social Affairs, Economic Analysis & Policy Division, Least Developed
Country Category: Myanmar Profile (2019), https://www.un.org/development/desa/dpad/least-developed-country-
category-myanmar.html (last accessed 19 Mar 2019).
303
Michael Martin, U.S. Sanctions on Burma, R4136 Congressional Research Service (2012),
https://fas.org/sgp/crs/row/R41336.pdf (last accessed 19 Mar 2019).
304
See Eleanor Albert & Andrew Chatzky, Council on Foreign Relations, The Rohingya Crisis (5 Dec 2018),
https://www.cfr.org/backgrounder/rohingya-crisis (last accessed 19 Mar 2019).
305
UN General Assembly, Situation in Myanmar, A/C.3/73/L.51 (2018),
https://www.un.org/press/en/2018/gashc4254.doc.htm (last accessed 19 Mar 2019). The representative from Saudi
Arabia said, “We see no glimmer of hope for the return of those refugees.” The representative from Bangladesh
called for action ensuring that “the most persecuted minority in the world is at least no longer the forgotten one”.
The Committee adopted a draft resolution by a vote of 142 to 10, with 26 abstentions.
306
Emanuel Stoakes, Chris Kelly, & Annie Kelly, Revealed: How The Thai Fishing Industry Traffics, Imprisons and
Enslaves, The Guardian (20 Jul 2015), https://www.theguardian.com/global-development/2015/jul/20/thai-fishing-
industry-implicated-enslavement-deaths-rohingya (last accessed 25 Mar 2019). Some victims were forced to stay on
their boat for years at a time with constant threat of execution or being pushed over the side.
existing conspiracy to force members of vulnerable groups into labor at sea307. Such dreadful
crimes went unnoticed by governments for decades due in no small part to corruption or
incompetence, but equally because the Kingdom of Thailand’s vision, as expressed through its
legislation, does not recognize a non-negotiable duty to protect refugees, asylum-seekers, and
stateless individuals. Beyond the fishing industry, Thailand’s willful ignorance of its pervasive
sex trade, which is criminal under domestic statute308, provides the greatest opportunity for
traffickers and procurers who use coercive means to commodify human beings – young women
and girls in particular309. These dreadful realities are no secret to powerful individuals in business
and government, but the issues garner much less attention than comparatively trivial matters.
Considering all the facts and trends, one must exercise considerable restraint not to infer that
justice is out of reach for the Rohingya and other victims of unspeakable horrors. Victims of
human trafficking, sexual exploitation, slavery, ethnic cleansing, and genocide nearly always
come from poor, marginalized and minority communities, and whether intentionally or
coincidentally, those are the same demographics of people who receive the least support from
governments which purportedly swore a solemn oath to protect the rights of all peoples
regardless of race, sex, religion, etcetera.
Discussion and recommendations
The shortlist of sources in this article demonstrate the current international order has
significant and enduring structural flaws, and its participants frequently exploit these defects in
harmful ways. At first glance, there may appear to be a disconnect between discrete areas of law
– domestic criminal, civil rights, environmental, corporate, public and private international law –
but a deeper, holistic examination reveals an interwoven, interdependent anatomy of the body
legal within, between, and among nations. Any conceptualization of the whole as existing
without each and all of its constituent parts, or of a piece of the whole as existing in isolation, is
illusory. The global order has unveiled fractures; that same fragmenting both emerges from and
is reflected in domestic territories. The greatest mental leap proposed in the infinite
interconnectivity argument is that the actions of individual private citizens are at least partially
inseparable from those of larger groups. Epistemologically, such perception that there exists a
degree of union between the mutually-influential collective and individual relies upon a
transpersonal perspective310, which legal professionals may consider as more spiritual than
307
International Organization for Migration, Trafficking of Fishermen in Thailand (2011),
https://publications.iom.int/books/trafficking-fishermen-thailand (last accessed 25 Mar 2019). At p.61—62, victims
reported being bought and sold for 8,000—10,000 Thai Baht (roughly $300).
308
Kingdom of Thailand, The Prevention and Suppression of Prostitution Act B.E. 2539 (1996). http://un-
act.org/publication/thailands-prevention-and-suppression-of-prostitution-act-1996/ [accessed 22 May 2020].
309
Numerous publications address relationships between statelessness, trafficking, and exploitation. Women and
girls are most often exploited in the sexual services industry. See Plan & UNHCR (2012). Under the radar and
under protected: The urgent need to address stateless children’s rights.
https://www.ohchr.org/Documents/Issues/Children/BirthRegistration/PlanInternational1_birthRegistration.pdf
[accessed 22 May 2020]; Rijken, Conny, van Waas, Laura, Gramatikov, Martin, & Brennan, Deirdre (2015). The
nexus between statelessness and human trafficking in Thailand. https://files.institutesi.org/Stateless-
Trafficking_Thailand.pdf [accessed 22 May 2020]; David, Fiona, Bryant, Katharine, & Larsen, Jacqueline (2019).
Migrants and their vulnerabilities: To human trafficking, modern slavery and forced labor.
https://publications.iom.int/system/files/pdf/migrants_and_their_vulnerability.pdf [accessed 22 May 2020]; Herring,
Tanya (2019). Prevention and protection interventions for stateless non-refugee and forced displaced children. New
England Journal of Public Policy, 31(2). https://scholarworks.umb.edu/nejpp/vol31/iss2/12 [accessed 22 May
2020].
310
Shapiro, S., Lee, G., & Gross, P. (2002). The essence of transpersonal psychology: Contemporary views.
International Journal of Transpersonal Studies, 21(1), 19—32. http://dx.doi.org/10.24972/ijts.2002.21.1.19
concrete, and thus inappropriate for a legal study. However, if we consider that individual voters
at least theoretically have an impact on democratic governments, and that all governments are
responsible for educating, protecting and most importantly, leading their citizens, the abstraction
may begin to crystalize.
The ebb and flow between citizens and their municipal laws, and between states and
international law, can easily retrocede with a withering of transparency among leadership.
Humans have a profoundly advanced sense of freedom, justice and equality, and seldom do they
appreciate the usefulness of duplicity, affected piety, or false virtue. A segment of the population
will not be able to independently corroborate the universal legitimacy of laws when there are
always exceptions to those supposedly sacrosanct ideals typified in cases like those briefed in
this article. When individual private citizens are subject to a legal system they view as biased and
hypocritical, they may have little incentive to remain obedient; instead, they may also feel a duty
to honor their moral and ethical codes by willfully engaging in proscribed conduct. In the same
vein, public and private organizations are operated by individuals who may intuit the pliability
and variable application of laws, which may lead those people to tactfully rationalize infractions
whether out of spite, or for honor, profit or power. Bearing in mind the symbiotic relationship
between a government and its people, and between international tranquility and domestic
discipline, it is hard to imagine any serious disadvantage of pursuing a course of action to
drastically improve civility and consistency at home and abroad.
Anyone with a public library card, internet access, and a penchant for reading can verify
the facts presented in this article. Freedom of information (in the English language, at least) has
ensured that facts are not hidden today, save corporate proprietary knowledge protected in
perpetuity by intellectual property statutes, and of course any state secrets. Neither governments
nor private actors are making great efforts to obscure their objectionable, and in some cases
malicious behavior, which should be even more concerning to readers than if access were
obstructed. Evidence of failure to abide by a rules-based system may, in some cases, be hiding in
plain sight due to disinterest among the general citizenry with respect to engagement and
management of their collective social systems. Indeed, anti-political mania in the periphery of
partisan wrangling has left divisions of electorates burned out and hesitant to dig through the
morass of misinformation, ad hominem diatribes, and purity tests in search of the few nuggets of
pure truth available. As such, the first step in any solution is simply to open lines of
communication, and to demonstrate some momentary equanimity when exposed to the glut of
attitudes and opinions.
Myriad alternative analyses and conclusions are certainly available given the collection
of sources presented in this article and the nearly boundless supply of other reports on these
topics, but a mere plurality of viewpoints does not annul those postulated herein. Hordes of
divergent solutions are available at continuous scale from the individual through local and state
to global levels, but after opening the discussion, the next important step is to admit there is a
problem that needs solving. For as long as stakeholders posture the current order as making
satisfactory incremental progress toward an ultimate goal, the agony felt by victims can be
stretched to eternity. In formulating a plan, we must keep in mind that force and threat thereof
have proven faulty means of creating sustainable order through diverse stratum. The current
prerequisite of voluntary recognition of sovereign equality and territorial integrity, and the
independent submission to treaty obligations, are foundational to any international order.
Naturally, the peace of any civilized society – from the microcosm of a family, through

[accessed 28 May 2020].

townships and cities of various populations, to provincial territories, nations, and as large as the
entire world – relies on the volition of its inhabitants to participate in a shared set of rights and
rules of behavior. Just as an individual must independently decide to comply with a moral,
ethical, legal, or regulatory code, so too must entities and states elect to abide by bona fide quo
iure. In the short term, submission need not imply unqualified approval of the moral, ethical,
social, political or other nature of the code; in fact, systems can be optimized in the longer term
when there is robust debate and some fluid dynamism adjusting the system to meet the
requirements of an evolving, more scientifically-aware and communicative populace. Objection
to a rule, nevertheless is not positive defense and does not preclude the rule’s validity.
Confucian legal traditions, in contrast to those in the Western world, recognized the
futility of punishment in generating motivation to live by a moral code311. Ancient Confucian
ideals hold that stakeholder citizens must somehow believe in the order, must be persuaded of its
value or convinced of the merits of its tenets before they can enjoy the liberties of a functional
society. Contemporary arguments suggest the compulsive power of legalism must converge with
enlightenment and morality312 before civilians can avail themselves of rights and freedoms such
as those outlined in this article. Though coercive powers and punitive measures of reactive
justice are indispensable tools for governments to utilize, the fact is self-evident that the deterrent
effects of punishment are limited, and clumsy enforcement of unpopular or unjust laws can
easily generate opposition to the entire order, thereby decreasing motivation to comply rather
than scoff. Accordingly, if the first parts of the solution are to communicate and to admit there is
a problem, it is of fundamental importance to simultaneously acquiesce to the formal amendment
process and not give into the urge to flout the system even if it is decidedly archaic.
Engaging all parties in the process is the most crucial step and the likeliest point of
impasse. Just as individuals and corporate persons have the ability to threaten unified progress by
violating active laws, legislators can block emendation, executives are able to veto propositions,
judiciaries have the authority to countermand resolutions, and states may slide toward resistance.
When the conversation significantly diverges from the standard narrative, and when status quo is
conspicuously threatened, discomfort and even outrage are preordained outcomes. Deadlock is
practically guaranteed in a forum of delegates trained to reject polemics or theories that paint the
revered legal order as defective. Chomsky astutely observed, “The smart way to keep people
passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively
debate within that spectrum – even encourage the more critical and dissident views. That gives
people the sense that there’s free thinking going on, while all the time the presuppositions of the
system are being reinforced by the limits put on the range of the debate.”313 The same is true in
the general public, academia, business, and levels of government. Experts in their respective
fields have vested interests in the prolongation of the current order – a system which has
provided a select few with good fortune – and old hands are hesitant to relinquish control of their
legacy. Nevertheless, successfully reorganizing the legal fraternity presupposes independent will
to carry out the process to equitable conclusion, so without cooperation, the process dissolves
into a talking shop; and even in such a stalemate, there is greater benefit in continuing the
discussion than being dragooned into silence.
311
Chan, Joseph (2002). Moral autonomy, civil liberties, and Confucianism. Philosophy of East & West, 52(3), 281
—310. https://hub.hku.hk/bitstream/10722/45296/1/70236.pdf [accessed 19 May 2020]
312
Yang, Lijing & Rutgers, Mark (2016). Against the rule of man: The Confucian and Western traditions of good
administration. International Review of Administrative Sciences, 83(4), 789—805. https://doi.org/1
0.1177/0020852315596213 [accessed 19 May 2020]
313
Chomsky, Noam (1998). The common good. Berkeley: Odonian Press, p. 43.
 For the purposes of efficiency in this article, we will assume there is adequate support to
move past the consensus and coalition-building phases and into action. Ideally, the process will
incorporate top-down and bottom-up leadership where participants have autonomy, access, and
influence that maximizes their sense of a genuine stake in outcomes. A comprehensive solution
requires proactive elements designed to prevent abuses and reactive elements which provide
adequate, timely, and appropriate punishments for noncompliance with binding agreements or
decisions. Using the UN Charter as a rough guide, diplomatic channels are the first, and ideally
only, means of confronting a recalcitrant state; this may entail a cultural mind-shift toward
collectivism. Criminal deviance among individuals in collectivist societies is less prevalent than
in individualist societies because there is a sense of community responsibility where each person
is a part of a group to which that individual owes some deference. In such a system, there exists
multidirectional flows between the one and the many, so society benefits from individual
cooperation just as individuals share in the successes of the collective314. Some detractors may
consider such thinking as antithetical to capitalism, but a group of academics and entrepreneurs
have begun to prove that broader prosperity actually creates more sustainable wealth. Rebecca
Henderson said, “our focus on shareholder wealth maximization is an exceedingly dangerous
idea”315. She teaches a Harvard Business School class called “Reimagining Capitalism” in which
students apply more holistic business reasoning that incorporates rights of employees,
community welfare, environmental protection, risk-reduction, and long term financial planning.
The result is healthier, happier, more productive firms that provide more benefits to their
communities. Incidentally, theories abound suggesting that if individuals, corporations, and
presumably states imagine themselves as part of a whole, then there is only “Us” – there is no
“Them” – and such a sense of connection provides many bona fide participants the moral
imperative not to do harm. Unquestionably, some will not independently cooperate, which is
why we must also remain mindful of such caustic elements in our midst.
Private citizens, public officials, academics, and other stakeholders immersed in the
process of continuous and never-ending improvement have got to recognize that corporatism is
not anodyne. Recall the riotous origins of multinational corporations: the East India Company,
Royal African Company, French West India Company, Danish West India Company, German
Brandenburg African Company, Swedish Guinea Company316. Privately owned companies led
crusades into the New World where they looted, raped, and slaughtered indigenous people like
animals, then they turned to commodify humans in a global chattel slavery trade. Corporations
were instrumental in expansion of historical colonial empires just as today’s corporations are
architects of neocolonialism317. Compelled by little more than idle pursuit of profit, MNCs too
often seek to acquire lands, exploit their resources and discard them once they are exhausted,
leaving behind obliterated environments and disaffected communities. In the course of
occupation, corporations hold government officials on the hook for campaign finances and
thereby effectively pull the legislative and regulatory strings from the hands of democratic

314
Fukushima, Miyuki (2009). Bond to society, collectivism, and conformity: A comparative study of Japanese and
American college students. Journal of Deviant Behavior, 5, 434—466.
https://doi.org/10.1080/01639620802296212 [accessed 28 May 2020].
315
Henderson, Rebecca (2020). Reimagining capitalism in a world on fire. New York: Public Affairs, p. 17.
316
Prairie View A&M University (2020). Great Britain and the trans-Atlantic slave trade: The Royal African
Company. https://www.pvamu.edu/tiphc/research-projects/the-diaspora-coming-to-texas/great-britain-and-the-
transatlantic-slave-trade-the-royal-african-company/ [accessed 22 May 2020].
317
Halperin, Sandra (2020). Neocolonialism. https://www.britannica.com/topic/neocolonialism [accessed 22 May
2020].
majorities. The benefits of low-wage, high-stress and dangerous jobs they create are negated by
poor working conditions and denial of workers’ rights to organize. While the transatlantic slave
trade may have been eradicated due to its immorality, it did not take corporations more than a
hundred-some years to figure out how to find labor at a lower cost than slaves318.
Unscrupulous corporate leadership can easily sabotage progress if states do not join
together to bridle their profit-driven destructive behavior. In the current economic paradigm,
American and European corporations cut costs by outsourcing labor to districts in foreign
countries where they can pay slave wages to sweatshop laborers who face varied abuses319.
Likewise, corporations export manufacturing of consumer goods to jurisdictions with lower or
non-existent environmental regulations. Consumers may not care much about business ethics if
becoming more sustainable means paying a higher price for a product320, but governments should
make note that pollution and labor conditions around the world are now shared problems
requiring cooperative solutions. One simple act of congress or parliament could require a
multinational corporation headquartered in a particular state to abide by at least certain elements
of its home country’s environmental and labor standards in all the company’s worldwide
operations. Such a maneuver would first require a global agreement on minimum standards to
prevent capital flight and re-headquartering to more economically-favorable regions.
Additionally, carbon and other emissions should not only be taxed, but tabulated more precisely.
Carbon accounting would apportion each country’s emissions to reflect not only those generated
within its borders, but also by its companies abroad, and in consideration of the net effect of
domestic consumption of goods manufactured in other countries. Advanced economies may not
directly emit more pollutants into the atmosphere than the rest of the world321, but they may be
accomplishing their domestic reductions by offshoring their factories. Public revenues would
likely surge as emissions plummeted if even high-income nations developed a common carbon
tax schedule which applied to the worldwide operations of MNCs headquartered within their
borders.
The structure and function of international trade needs to be updated to reduce potential
for abuse by private organizations. Blockchain technology, for instance, offers a means to more
effectively track the sale and transfer of arms. At very least, a distributed ledger would allow
multiple stakeholder nations access to the last known node on a supply chain, which would give
investigators a fair chance at preventing arms from sliding into black markets, and thereafter
retrieving weapons from illicit dealers. The blockchain also offers financial regulators a

318
Say, Jean-Baptiste, A Treatise on Political Economy; or the Production, Distribution, and Consumption of
Wealth. Philadelphia: Lippincott, Grambo & Co. (1803). https://oll.libertyfund.org/titles/274 [accessed 22 May
2020], at p. 206, the cost of a slave in the West Indies is $400 up front plus $100 per annum. Inflation was
approximately zero until the Industrial Revolution, so an estimate from 1913 – the earliest date available for
tabulation – is an adequate guide. The $100 annual cost times inflation amounts to approximately $2,600 in the year
2020 when annual income for garment workers in Bangladesh was less than $500, less than $1,000 in Cambodia,
and less than $1,500 in Vietnam. See Picketty, Thomas (2014). Capital in the twenty-first century. Cambridge,
Massachusetts: The Belknap Press of Harvard University Press, at p. 137, figure 2.6. See International Labor
Organization (2020). Minimum wage chart: Bangladesh, Cambodia, and Vietnam.
https://www.ilo.org/asia/WCMS_223988/lang--en/index.htm [accessed 22 May 2020]; See also, Bureau of Labor
Statistics (2020). CPI calculator. https://data.bls.gov/cgi-bin/cpicalc.pl [accessed 22 May 2020].
319
Nair, Chandran (2016). The developed world is missing the point about modern slavery.
https://time.com/4374377/slavery-developed-developing-world-index-slave-labor/ [accessed 22 May 2020].
320
Henderson, Rebecca (2020). Reimagining capitalism in a world on fire. New York: Public Affairs, p. 53.
321
International Energy Agency (2020). Global CO2 emissions in 2019. https://www.iea.org/articles/global-co2-
emissions-in-2019 [accessed 28 May 2020].
mechanism for tracking monetary transfers over a network of institutions in several jurisdictions.
With a global distributed ledger system, banks would no longer be able to rationalize the risk of
money laundering and terrorist financing on the basis of their relative profitability even after
penalties. Moreover, the international system needs to develop new standards and practices
relating to transparency and accountability. Penalties should extend to executives, who should
serve prison time commensurate with the total losses caused by malfeasance, fraud, market
manipulation, and other white-collar crimes. Governments should attack financial crimes with a
combination of aggressive prosecution, harsh sentencing, claw-backs of bonuses and executive
pay, plus fines and probative oversight for the companies after removal of controlling executives.
Civil asset forfeiture to the tune of billions of dollars is likely available for cases of money
laundering at the world’s largest financial institutions; that money can fund law enforcement and
other civil service projects designed to repair parts of society ravaged by the scourge of white-
collar crime.
Individual freedoms are crucial to functioning economies and political systems at scale,
and as such, public and private interests need to focus more on providing the architecture for a
reasonable standard of living among private citizens. Human rights treaties offer a framework set
of principles but lack the authority to force states to implement specific programs. Universal
ratification of treaties is a crucial step, but states must still independently deploy funds to
institutions that provide the bare necessities of life – food, water, shelter, clothing, education,
health care, and transportation – so citizens can stand a chance at participating in a competitive
economic environment. A functional international order needs to recognize the fluidity between
the individual and collective, and thusly evolve to incorporate the rights of individuals as
paramount. Enforcement mechanisms within treaties can offer another layer of protection, but
they are frequently impractical. Whereas an international judicial forum is a fine idea in
principle, states have shown reluctance in accepting jurisdiction, and aggrieved parties have
simultaneously lacked access to domestic courts by way of their penury status. As such, states
should recognize legal rights of the larger domestic community to protect its most vulnerable
individuals by altering conventional definitions of legal standing.
Chris Hedges, Noam Chomsky and others filed suit against President Obama and others
over a law that allowed the government to circumvent constitutional due process and detain
terrorism suspects indefinitely. The plaintiffs’ counsel probably knew the case would be
dismissed due to lack of standing since none of the complainants were materially affected nor
imminently threatened by the policy. They may have been surprised when the District Court
granted an injunction. The District Court judge should have known the Circuit Court would
reverse the decision322. The District Court judge may have recognized that the case had the
potential to set precedent, and then strategically decided in favor of the plaintiffs with knowledge
that the Circuit would reverse, leaving plaintiffs a final appeal to the Supreme Court. The
problem with the case was not that the Circuit Court held plaintiffs lacked standing – they did
and that was clear from the start. The problem was the standard for qualifying standing in cases
involving the common property of constitutional rights. Just as a public prosecutor can bring
charges on behalf of the people without cooperation of a victim, so too should stakeholders in a
constitutional system be able to bring suit on behalf of others who are not party to the dispute –
in the Hedges case, because victims were held indefinitely without trial in one of many prison
colonies overseas. Perhaps an argument could be made that constitutional law is based in

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Hedges, et al. v. Obama, et al., 724 F. 3d 170 (US 2nd Circuit Court of Appeals, 2013). The petition for writ of
certiorari to the Supreme Court was denied.
traditional knowledge which belongs to a people who may protect that intellectual property right
from exploitation or misuse, including by a government authority. Regardless of the legal
methodology, individual stakeholders must have standing to file non-profit lawsuits in matters of
great public import, or the community will miss opportunities to prevent and suppress abuses,
and thereby fail to protect victims who are not capable of initiating or joining lawsuits
themselves.
Moreover, legal systems have proven ineffective at establishing and maintaining
sustainable order – amid private parties, between public and private actors, and among public
agents. The legal field will need to evolve if stakeholders truly desire significant improvements
to efficacy, compliance, or enforcement. Just as physical sciences require empirical evidence and
thorough testing before a conjecture and hypothesis can ascend to theory or law, so should laws
be subject to testing and analysis as to their efficiency and effectiveness. Parliaments and
congresses should apply more scientific reasoning to legislation, and they should revise or repeal
old laws and enact new ones with the aim of continually improving their systems. By
recognizing that laws are written by humans rather than some naturally-occurring phenomenon,
legal professionals should be able to rationalize changing their views as scientists would, when
sufficient and persuasive evidence is available. The law should take on a living quality, where
legislators and courts consistently update and improve constitutions, statutes, and regulations like
a computer programmer releases new versions after debugging and adapting new code to meet an
ever-changing world of users.
Finally, nations that remain cognizant of underlying causes and contributors to internal
and external conflicts, and governments that seek to proactively reduce probabilities of violent
events will ultimately be compelled to reduce inequality, to correct imbalance, and to quiet
distortion in social, political, legal, and economic dealings. It is the people’s right to self-
determination, and as such, governments are duty bound to carry out the will of their people –
citizens who consistently and overwhelmingly desire peace rather than war, prosperity in place
of poverty, humanity over animality, and civilization over disorganization. Governments may
find a new sense of purpose and a broader reason for peaceful, harmonic relations in their
process of more precisely guiding business enterprise, and in tailoring social assistance programs
to provide education and skills that can propel individuals through glass ceilings into higher
socioeconomic classes. Individuals may likely develop stronger bonds to community members
and feel a more profound sense of connectedness and responsibility to others when they infer a
sense of belonging, when they observe themselves as having influence, and if they perceive the
scales are even enough that their independent efforts shall be justly rewarded. In other words, as
idealism supplants idle preoccupation with wealth, and as rule of law displaces antiquated rules
of force and power, so too can human rights and justice be ascendant in the spirit of those who
dared to dream all throughout history.
Conclusion
This article posited our world is suffering from an unconscionable lack of order – legally,
socially, economically, morally and ethically. Private and public stakeholders in the system have
articulated enduring support for human rights and the rule of law, but in practice there are too
many examples of serious derogation from those principles to consider the rhetoric as wholly
meaningful or sincere. The world is both physically and mentally at war with itself, awash with
capitalist enterprise seeking to exploit resources and people in every country, with little apparent
concern for the present human condition, much less the potentially bleak future. Arms trades
proliferate under the pretense of bona fide free trade and national security partnerships; the
environment is under threat from companies motivated only by profits; poor and powerless
minority groups continually suffer hostilities, discrimination, and the worst forms of injustice.
Nearly every conceivable offensive behavior has been prohibited in treaty law, domestic statute
and regulation, but a world powered by capital does not frequently enough check the behavior of
the rich and forceful few who do the most damage.
There are seemingly infinite solutions to the immense problem set we currently face, but
without the political will to acknowledge our faults and engage a problem-solving process, there
exists only a growing divide between spoken commitments to self-control and the practical
realities devoid of such discipline. At this stage, more research and conversation are required
regarding issues discussed in this article. Governments and private interest groups should jointly
and severally readdress core values on matters of human rights, corporate governance, public
administration, and civilized conduct. New narratives should emerge pertaining to power
imbalances, and novel strategies should arise with the aim of eliminating double-standards. In
the end, our political states, like individuals and corporations, should respect the rule of law not
because of punitive measures awaiting those who violate it, but because of the innate value of
mutual regard for privacy, freedom, security, and inviolable human rights.