Rights Wire

The Human Rights Blog of the Leitner Center for International Law and Justice

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Developing strategies for advancing women’s rights using international law (part 2 of 2)

By  Carolina van der Mensbrugghe

“Why are you interested in learning more about women’s rights?” This icebreaker kicked off our training on women’s rights advocacy in Myanmar, and in response, one participant turned to me and said, “I used to love listening to a Burmese pop artist’s music until he came out with a song that compared women to pigs—lyrics noted that women would eat anything and everything if they didn’t have noses.” After noting the inherent misogyny in this Burmese “Blurred Lines,” she continued, “My brothers didn’t believe me when I told them our society isn’t equal, until I reminded them that they never have to ask permission to leave our house unaccompanied, never have to wash the dishes or do laundry. They agree with me now. These are moments I realized how important women’s rights are, and this is why I am here.”

On May 21, the Leitner Center helped to facilitate a dialogue on the international human rights legal framework with women’s rights activists in Myanmar. Our presentations were aimed at providing participants with ways to compliment international advocacy with the multi-pronged domestic strategies. As my fellow Crowley Scholar, Zahava Moerdler, discussed in part one of this two-part series on the Leitner Center’s recent training, we sought to empower and collaborate with women’s rights activists in Myanmar during our time there. As Myanmar undergoes its transition towards democratization, our capacity-building dialogue took advantage of a newfound space for dialogue on the nature and potential of human rights advocacy.

Our training also coincided with build up to the Committee on the Elimination of Discrimination’s Against Women’s (CEDAW Committee) review of Myanmar’s implementation of its international gender equality obligations, took place on July 6 .  This UN mechanism is a crucial international legal tool for advancing women’s rights due to the obligations it places on governments to enforce the treaty mandate, which enshrines the commitment to end gender-based discrimination in all sectors of society at the hands of both public and private actors. One of the civil society NGO participants, The Women’s League of Burma (WLB),  had recently submitted its shadow report  to the CEDAW Committee detailing gender rights violations, in particular the ongoing impunity for acts of sexual violence in ethnic conflict areas. WLB was notably eager to discuss strategies that representatives would present in Geneva at the CEDAW Committee review to stop these grave international crimes from continuing.

After a brief overview of the international legal framework, the focus of the May 21 dialogue narrowed to address how this framework protects gender equality. The discussion opened by asking the participants, “Do we need women’s rights when we already have human rights?” This question set the groundwork for an extended discussion on how certain laws and patriarchal values within Burma’s society have a disproportionately negative impact on women, including when intersectional social identities, including LGTI, rural and ethnic minorities, overlap.

A participant from Akhaya,  an organization dedicated to sexual health education, spoke of the detrimental impact the withholding of reproductive health has had on women in local communities. While health education is afforded to all, women are at best not taught about changes occurring during puberty and, at worst, are told that their menstrual cycles render them impure, with the ability to steal the hpoun (more of less, a concept of “masculine power”) of men.  While rural areas overall experience a greater impact, the participant noted that these views were pervasive and common in urban areas and all socio-economic backgrounds. This anecdote, among others, reinforced CEDAW’s importance in articulating a state’s obligation to not only enforce, but also to fully implement measures that eliminate practices entrenching gender equality.

The remainder of the dialogue consisted of unpacking how international law defines and protects against sexual violence in conflict, domestic violence, sexual harassment and damaging cultural norms and traditions that violate women’s right to marriage and family planning. When discussing international legal protections against domestic violence and sexual harassment, many participants expressed frustration towards government inaction on these issues. The government’s unwillingness to “interfere” in domestic partnerships or deal with “harmless” sexual remarks led participants to believe these were issues that place no imperative on action in the domestic civic space, let alone international spheres.

The solidarity among all the women as they shared of anecdotes addressing frustrations towards rights violations was palpable and, at times, infused with plucky and insightful humor. While discussing the substantial impact sexual harassment has on women’s career prospects and work life, one participant asked whether “mansplaining” is included as a violation under the law.

Participants were empowered by the knowledge that international law obligates the government of Myanmar to end impunity for all acts of gender discrimination—including those that occur in the bedroom or the workplace, spaces often deemed outside government oversight. The international legal framework by no means provided the solution, but rather supported and strengthened the strategies devised to develop meaningful policy reform in these ill-attended areas.

The conversation subsequently shifted towards connecting interaction with UN with domestic advocacy. Participants cited the current climate of cultural norms and traditions, as the major impediment to gaining traction with local officials and society at large—women’s initiatives and activists are often de-prioritized and segregated from overall peace process, investment projects and development deals shaping the country’s future.

Change in this respect, must come from within, and by one mind at a time. However, by the end of the training, the participants discovered renewed excitement and newfound tools to engage with and apply pressure in solidarity with the international community.

Carolina van der Mensbrugghe is a 3L at Fordham Law School. She was a 2015-16 Crowley Scholar in International Human Rights.

Photo credit: Carolina van der Mensbrugghe

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.


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The fight for paid internships at the United Nations

By Sarah Ben-Moussa


Scattered shoes are displayed at the steps of the United Nations Headquarters in New York as a show of solidarity with interns and young people who are underrepresented around the world. Credit: Sarah Ben-Moussa

On Nov. 10, 2015, a group of unpaid interns, led by the Fair Internship Initiative (FII), demonstrated outside the United Nations Headquarters in New York City in recognition of International Interns Day. As a protest against the United Nations practice of hiring unpaid interns, the group staged a flash mob.

Attendance was uncertain, given the reports of rain for that day, but in the end, approximately 20 interns gathered outside, umbrellas in hand, in front of a row of scattered shoes. They each held signs that collectively spelled out “unpaid is unseen,” a phrase that has been gaining traction in the international intern sphere. In an interview with Alessandro Greppi, an organizer with FII, he explained that the phrase alludes to the lack of representation at the U.N. of young people in developing countries who cannot afford individually to finance an unpaid internship, and whose home states cannot afford to send them. The image of scattered pairs of shoes, similarly, was meant to symbolize all of the young people that were unable to represent themselves.

After the gathering, the interns made their way into the General Assembly building, where they were allegedly stopped by security, who asked them to put away their signs, as protesting is prohibited inside the U.N. itself. Vice News reported that two security guards from the U.N.’s Emergency Response Unit also demanded that the pictures taken by Vice be deleted.

Later that evening, FII hosted a panel on youth employment featuring Ahmad Alhendawi, the Secretary General’s Envoy on Youth; Bettina Hasel, Human Resources Specialist in the UNICEF New Talent Team; Elizabeth Niland, Social Affairs Officer of U.N. Focal Point on Youth; Ian Richards, President of Staff Unions and Associations; and several other representatives and consultants. The panel covered the issue of remuneration for interns, but also focused heavily on other reforms for interns, including reforming the de-centralized nature of internships within the U.N. and the possibility of a scholarship fund for candidates unable to pay their way through the program. Protests against unpaid internships and programs such as these have gained more attention over the past year.


The practice of unpaid internships has invigorated protests since news of David Hyde, a 22-year-old intern living in a tent in Geneva this summer, made international headlines. The story was later found to be staged, in an effort to create a documentary on the struggle of unpaid interns. But, many have claimed that the reality is not far off, with demonstrations on International Interns Day taking place around the world in cities such as Geneva, New York, Melbourne, Paris, Chennai, Brussels and Trento. Students and interns have mobilized all over, arguing that unpaid internships at the U.N. go against the very values of the U.N., including non-discrimination and equality.

One of the organizations borne out of the global movement is the Fair Interns Initiative. It started as a weekly meeting of interns, and has quickly gained traction since the summer of 2015, with as many as 30-40 interns attending weekly events In an effort to clarify their demands, the FII specifies in its mission statement that they are seeking needs-based allowances or stipends for interns who are not funded by their university or another institution, fair and equal representation of interns and an intern focal point in the Office of Human Resources Management (OHRM). Their main focus is on securing these policy changes at the United Nations, given its prominence in the international field. They hope an organization such as the United Nations can set a precedent, which many other organizations can follow.

In the meantime, as long as internships remain unpaid, FII said they wish to see a change in the visa granted to interns so they at least may seek part-time work in supporting themselves in their host country, as well as a possibility for basic health insurance provided by the U.N. However, their long-term goal remains the eventual remuneration of interns.

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“Unfair, unpaid, is unseen” has become a mantra among the movement for the remuneration of interns, invoking the notion of equal work for equal pay, as well as contesting the representation bias present in many international organizations. Interns gathered outside of the United Nations Headquarters in Geneva Switzerland, to protest the U.N. practice of unpaid internships. Photo courtesy of ILO Intern Board.


In an interview with FII, Greppi said that the U.N. is failing to uphold the principle of non-discrimination, as articulated in the International Covenant on Economic and Social Rights (ICESR). There is a stark disparity in representation in the U.N. internship program, with most interns hailing from Europe, according to a 2015 report by the Secretary General. By offering only unpaid internships, the U.N. has created a de-facto restriction to internships, limiting access to those who can afford to do unpaid work or are lucky enough to secure outside funding, which tends to be individuals who are either from more affluent or developed nations.

Aside from violating the principle of non-discrimination, FII argues that the unpaid internship program violates the U.N. Charter and the Universal Declaration of Human Rights (UDHR). Specifically, FII wrote in a joint letter to Secretary Ban-Ki Moon on Aug. 14, 2015 that the program violates Article 8 of the U.N. Charter, which states that, “the United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.” They argue that the U.N. internship policy places an “indirect restriction” on qualified young people, creating a structural barrier for many. Additionally, they also cite Article 23 of the Universal Declaration of Human Rights, which states that, “[e]veryone, without any discrimination, has the right to equal pay for equal work” and that “everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” Thus, the exclusion of interns under this umbrella is a direct violation of the UDHR, FII said.

In response to the letter and its arguments, the Office of the Secretary General issued a response, explaining that the conditions of service fall into the purview of the General Assembly, and that any change to this policy would require a vote of the majority of the General Assembly.


Despite the backlash against unpaid internships, many have touted the benefits of these experiences. For one thing, there is a tangible benefit gained in experience and connections made through internships, a hiring practice that has existed for several decades. A letter from the U.N. Office of the Secretary-General in response to FII highlighted the fact that while there is no financial compensation, the internship program was designed to enhance the educational experience of interns and allow students to interact with other professionals and interns. The value of first-hand experience in an organization is one that should not be understated.

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Scattered shoes are meant to represent the many young people who are unable to represent themselves, says FII. Photo courtesy of ILO Interns Board.

However, in a world where organizations and companies are increasingly relying on unpaid interns to simply get work done, unpaid internships can be exploitative. They can displace paid employees, have interns performing menial tasks and not be beneficial in the employment search process. In the U.S., the Second Circuit Court of Appeals explored how unpaid internships at for-profit companies could be regulated in the landmark ruling, Glatt v. Fox Searchlight Pictures. The court ruled that unpaid internships are legal so long as the interns are the “primary beneficiary.” Among the factors to be considered in making this evaluation, the court highlighted that companies should consider the extent to which internships are tied to an intern’s formal education, the receipt of formal credit and if interns’ work complements or displaces paid employees’ work. Although this ruling may pose a set of problems (i.e. overlooking type of work and overall educational status) and it only applies to the for-profit sector, the legality of unpaid internships in the United States could serve as a standard or starting point for the U.N. and international community, especially in the wake of recent international unrest over unpaid internships, and increasing pressure on member states in the General Assembly to act.

Within the context of the U.N., most internships are offered to those who have obtained or are currently pursuing graduate degrees. While many gain a benefit from the learning experience offered by the U.N., it is often outweighed by the inability of interns to transition out of the intern sphere. Specifically, many interns, both in the U.N. and in other spheres, are facing a barrier to enter the workforce through the existence of what many have deemed to be “perpetual internships,” exchanging one internship for another, often without financial compensation, well beyond an affordable amount of time. With recent budget cuts to U.N. staff, it is even more unlikely that the U.N. will be expanding its entry-level recruitment. In fact, in light of these staff cuts, and without a central regulating mechanism for its internship program, it calls into questions the amount of work interns are expected to complete, and where the line between a learning experience and entry-level type work begins. Further complicating the transition is the fact the U.N. has a six-month hiring freeze, preventing interns from being hired for at least six months after they complete their internship, a practice FII is pushing to eliminate.

Many have argued that unlike multi-million dollar companies, the U.N. does not have the financial resources to pay its interns. While the idea that the U.N. is strapped for resources is not a new one, the inherent problem is the organization’s willingness to paint internship remuneration as a frivolous expense, rather than just compensation for labor. The United Nations, especially in the light of its recent staff cuts, thrives on its internship program, employing over 4,000 interns worldwide. Just compensation for labor should be the U.N.’s first priority.


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In honor of International Interns Day, the ILO Interns Board, in conjunction with the Geneva Interns Association, held a panel discussion on the issue of unpaid internships at the International Labor Organization Headquarters in Geneva, Switzerland. Photo courtesy of ILO Interns Board.

A modern jobs market needs a modern approach to internship programs. The United Nations, and many other organizations, needs to fundamentally restructure their internship practices in order to keep pace with the changing job market and the needs of young professionals. It must shift from its practice of ad-hoc unpaid internships, to a far more regulated and centralized paid program, to prevent abuses in the program and to obtain the greatest benefit for both parties.

In reality, this shift may lead to a drastic decrease in the number of interns the organization is able to employ, both due to monetary concerns but also due to the legal difficulty in moving so many young professionals to new countries for such short and frequent periods of time. Paid internships means fewer internships, and fewer internships means more competition. However, this is not necessarily a bad thing. The benefit imposed from creating a more competitive environment for interns ensures the most talented young professionals are being drawn to the organization, a long-term value that the organization has not calculated into their analysis. Additionally, opening the doors to increased representation of developing countries gives a value to the organization, both in perspective and in legitimacy.

The legality of unpaid internships continues to be a hot button topic both within the borders of the United States and in the larger international sphere. The United Nations is at a crucial juncture—its stance on the nature of unpaid internships sets the tone for many states. As an example of the principles and norms in the international community, they bear a responsibility in setting precedent like no other organization. The choice on what to do with that responsibility is in their hands.

Sarah Ben-Moussa is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Header Photo Credit: Sarah Ben-Moussa

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The war against the “investor”: investor-state dispute resolution and ambiguity in international law

By Meric Sar

Investor-state dispute resolution (ISDR)—an international procedure that allows an investor to enter into arbitration with a foreign government for violations of their property rights—is at a difficult crossroads. Enacted through international treaties, ISDR is facing a legitimacy crisis and skepticism from all ends of the political spectrum, from developing and developed countries alike. Many critics argue that ISDR undermines human rights and states’ regulatory powers.

While ISDR is far from being flawless as a dispute resolution mechanism, many such critiques only undermine the legitimacy of a very important judicial forum that is—and has been—essential for the development of modern international law. The real risk that we are facing today is not the occasional unjust decision by an ISDR tribunal, but the systemic persistence of states in restricting the capacity of international tribunals to develop and fine-tune the substance of international law. ISDR and international investment treaties are vehicles that, if used effectively, can bridge enormous gaps between theory and advocacy at the intersection of human rights and sovereign responsibility.


Throughout its history, international investment law faced constant political resistance from developing countries. The legal norms developed in this field rely on a delicate political equilibrium achieved after a centuries-long, painful—and often bloody—struggle between western states and developing nations seeking to find a way to de-politicize investment disputes (see Gunboat politics). At the same time, they wanted to ensure the rule of law in nascent political systems. Especially, the notion of holding a sovereign state liable for its treatment of a foreign merchant based on an “international” law standard stood at the core of academic disputes, especially in the legal traditions of the post-colonial countries.

As the current negotiations for the Trans Pacific Partnership treaty (TPP) and Transatlantic Trade and Investment Partnership (TTIP) continue—both of which include an investor-state dispute resolution clause—the western world has strongly criticized treaty arbitration for the first time. Today, investor-state arbitration’s opponents include Joseph Stiglitz, a renowned Nobel laureate and development economist. He says, “[ISDR] is about rewriting the rules of how our economy works, tipping the balance of power in favor of big businesses at the expense of workers and the public here and in partner countries.” Yet, these concerns often tend to reflect a very narrow understanding of ISDR, which fails to grasp its essential function in the realm of international law.

Most critics argue that ISDR is inherently biased in favor of wealthy investors. However, in reality, small and mid-sized businesses and individuals have accounted for about half of all cases brought to investment treaty arbitration. Another popular argument argues ISDR as an adjudicative process constitutes an undemocratic and “arbitrary” interference with the powers of sovereign states. But, this argument represents a simplistic fallacy as well, and it ignores the foundational tenets of state responsibility under international law. An essential attribute of state sovereignty is the ability to enter into international treaties and thereby restrict a state’s own sovereign powers. On the flip side, within the same treaty, a state can empower a neutral tribunal to adjudicate any claims to be brought against itself by third parties for alleged breaches of any such treaty. The vast majority of bilateral investment treaties (BITs) executed by states (even the treaties executed between two developing countries) are almost identical in terms of their substantive provisions, often merely reflecting the minimum standards of treatment recognized under customary international law. Likewise, the “arbitrariness” claim blatantly overlooks the complexity of ISDR as a legal field. In reality, ISDR is a sophisticated system with a variety of procedural and substantive checks and balances to answer most of the concerns raised by the general public.


The skepticism of ISDR in the western world particularly intensified after two controversial cases, which are currently pending before arbitral tribunals. Brought against the governments of Australia and Germany, the cases have a common theme. In both lawsuits, investors seek just compensation for the monetary effects of certain regulations on their investments. These recent regulations were adopted by both governments in the public interest to address legitimate health and environmental concerns. More interestingly, in both cases, countries that are traditionally perceived to have developed democratic institutions and judicial systems find themselves as defendants.

The fact that the plaintiffs in the cases were tobacco and nuclear power companies only amplified the public’s outrage. Why was a commercial company allowed to circumvent domestic legal systems and undermine the “democratic process” of regulatory rulemaking? How could a three-person tribunal consisting of non-judicial legal experts with no political liability be granted so much power over the policies of a democratically-elected government?


Following these cases, the Australian government became the first developed country declaring that it will stop including ISDR clauses in its future BITs. Germany and France voiced strong opposition against the inclusion of an ISDR clause in the U.S.-European trade agreement that is currently being negotiated. Likewise, the U.S. revised its model BIT by delineating greater exceptions for labor, health and environment related regulations.

The current events come after a steady trend of withdrawals, beginning in the mid-2000s, from the International Centre for Settlement of Investment Disputes (ICSID) Convention by countries such as Venezuela, Bolivia, Ecuador, and Venezuela, all of which have questionable democratic accountability records. Likewise, in 2009, Russia withdrew from Energy Charter Treaty, which envisaged an ISDR mechanism to handle the disputes arising from the treaty’s application. The future of ISDR looks even bleaker, when the recent wave of skepticism in western society about ISDR is read together with this greater picture.

This concerted effort of western states in restricting the adjudicative powers of ISDR tribunals intends to protect states’ regulatory “police powers against potential legal challenges that can be brought via ISDR. However, although the legal theory of regulatory taking argued in the aforementioned cases may sound over-the-top for the laymen, regulatory taking is a well-established doctrine under the fifth amendment of U.S. Constitution and various other national legal systems. Thus, if the regulatory taking concept—providing compensation to an investor for being unfairly singled out in bearing the burdens resulting from the adoption of a regulation—is not an alien concept to the Western legal system, then should we not expect western states to advocate for the development of similar standards under international law so that it can serve to hold undemocratic regimes responsible? More importantly, what message about the health of international law is conveyed to the rest of the world when a developed state chooses to question the legitimacy of an international dispute-resolution mechanism to which it has given binding power, rather than first honoring the remedies and raising the legal defenses made available by such a venue?


In his controversial article on the current predicament of the human rights and international law, titled “The case against human rights”), Eric Posner, a professor at the University of Chicago Law School, argues that ambiguity and lack of proper interpretation mechanisms are the greatest problems facing human rights and international law.

The first problem is the ambiguity in defining human rights and international norms, which allows governments to rationalize almost anything they do. The vast quantity and diversity of rights often fall short of providing clear guidance to governments. Quite often, protection of a certain right conflicts with securing another. For example, governments often legitimize torture by claiming that torture is a necessary to ensure their citizens’ right to security. Likewise, governments use the right to self‑determination often as a defense for alleged violations of international law. The same dichotomy is valid for freedom of expression and the right to not to be discriminated. Benefiting from institutional reputation and constitutional legitimacy, domestic courts provide a permanent seat to reconcile such normative conflicts in domestic legal systems. However, the jurisdiction of international courts are often established in an ad hoc fashion, and there is not an all-encompassing international court which can serve a function in developing such norms under international law in a way similar to the one of domestic courts.

Posner points out that the lack of institutionalization as the second core problem. The lack of a consensus among states about the scope of certain rights and international norms makes it difficult to establish a hierarchical system for interpreting and enforcing norms of international law. This leaves governments with almost complete discretion on how to interpret international law and enforce their policies as they see fit. In some ways, it is a race to the bottom. In order to avoid being held liable by an international institution, states inherently hesitate to give any binding authority to any international institution at all. This causes international law to function only to the extent when there is a clear and short term benefit for a government to do so.


Given these issues, ISDR may actually have a role to play in strengthening international law and human rights. The general skepticism of states towards international law and adjudication renders those few institutions that we have at our hands ever more valuable. And interestingly, investor-state dispute resolution turned out to be one of the few judicial venues of international law that witnessed a steady rise in the last decades in adjudicating certain claims against sovereign states. Despite the popular skepticism towards ISDR, it may prove to address the ambiguity and institutionalization problems of international law as pointed out by Posner. The problem is: how can we expect the proper development of international law without providing authority to an international tribunal to adjudicate claims addressing such problems?

Indeed, the ISDR system is not perfect. An ordinary case may take years to reach a conclusion. The legal costs associated with filing and advocating a claim may easily amount to millions of dollars. Some claims brought via ISDR amount to billions of dollars may create a heavy burden on any country’s budget, let alone for one at an especially fragile situation economically. Likewise, the dual activities of some practitioners, acting both as a lawyer and an arbitrator in different cases, pose professional and ethical problems.

But despite its inadequacies and shortcomings, ISDR represents an important evolutionary step in the development of international law. It is revolutionary in the way that it provides individuals (at least those who qualify as an “investor”) a direct standing in the interpretation and shaping of international law. By offering a venue to private advocacy, ISDR enriches the landscape of international law. Generating valuable case-law, jurisprudence of ISDR offers guidance to states and fine-tunes various norms of international law. Often acting as a venue of transnational administrative law, ISDR tribunals deal with disputes involving competing interests of individuals and governments. At the very intersection of states’ prerogative powers and their obligations under international law, the tribunals consistently try to figure out ways to reconcile the tension between international law and domestic legal systems, between democratic governance and corporate risk-taking, and between human rights and sustainable development.

Contrary to popular belief, ISDR tribunals do not adjudicate in a vacuum. An ordinary ISDR tribunal consists of reputable experts of international law, often with distinguished academic backgrounds. Different than judges who often benefit from special immunities affording them life-long job protection, arbitrators have strong incentives to preserve their reputations as fair and competent adjudicators. Theoretical predispositions of prominent arbitrators on issues of state responsibility tend to differ from each other quite often, which naturally balances out overly liberal interpretations of international law. ICSID tribunals especially work to maintain transparency and often accept amicus curiae from stakeholders in the community. Furthermore, ISDR has sophisticated procedural rules, which allow for a quasi-appellate review to ensure the fairness of awards under well-established principles.

Current criticism of ISDR fails to take into account the very important function of ISDR in fine-tuning the interpretation of international law when it meets real life conflicts. As a venue, ISDR provides us a tremendous opportunity to give meaning to what we care the most.

Meric Sar is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: Marc Treble/Creative Commons