The Importance of a Treaty for Crimes Against Humanity

By Alexis Bloodsworth

Introduction

Currently, a treaty for crimes against humanity is absent from international law. Crimes against humanity are committed every day, and unlike war crimes or genocide, these crimes “do not engage State responsibility,” meaning that private individuals may be held responsible for committing them [1]. Similarly, unlike war crimes and genocide, which have dedicated international law treaties, crimes against humanity have not received the same treatment [2].  

In April of 2024, the United Nations (“UN”) Sixth Committee, per the General Assembly, will continue its consideration of a potential treaty for crimes against humanity in a resumed 78th session [3]. This session follows several other General Assembly sessions considering the item after the International Law Commission (“ILC”) proposed a set of fifteen draft articles to rectify this gap in international law [4]. These were titled “Draft Articles on Prevention and Punishment of Crimes Against Humanity” [5]. The Sixth Committee is set to decide on the treaty at the 79th session [6]. By discussing two of the main articles of the draft, we can hopefully understand why a treaty like this one is necessary.  

Background

What are crimes against humanity?  

Crimes against humanity were first recognized under international law in the 1945 Nuremberg Charter, but the Rome Statute of the International Criminal Court contains the newest and most thorough definition [7]. The definition of the Rome Statute provides: 

‘a crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: a. Murder; b. Extermination; c. Enslavement; d. Deportation or forcible transfer of population; e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; f. Torture; g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; h. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds; i. Enforced disappearance of persons; j. The crime of apartheid; k. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health [8]. 

What are the relevant lawmaking bodies? 

ILC and Sixth Committee  

The ILC was established by the General Assembly in 1947 under Article 13 (1) (a) of the Charter of the UN [9]. Its main purpose upon creation was to advocate for the development of international law [10]. As mentioned above, the ILC was the driving force behind the potential treaty when it released the draft articles. The Sixth Committee is the “primary forum for the consideration of legal questions in the General Assembly” [11]. All member states of the General Assembly have representation in the Sixth Committee [12]. The Sixth Committee is the body of the UN that will ultimately decide on the potential treaty [13].   

Analysis

As discussed above, a treaty for crimes against humanity is a significant piece missing from the puzzle that makes up international law. Even though crimes against humanity have been defined and even codified in the Rome Statute, the topic has never been given its own protections [14]. The two articles below will paint a broad picture of what the treaty could entail and what impact it might have.  

Article 3: General Obligations 

Article 3 of the draft articles includes general expectations that States will be held to by the proposed treaty [15]. The three general obligations contained in the draft are that (1) states have the obligation to not engage in crimes against humanity; (2) states must prevent and punish crimes against humanity regardless of whether they were committed during times of armed conflict; and (3) there are no exceptional circumstances that can be used to justify crimes against humanity [16]. 

Several draft comments provide notable insight into what these obligations might demand in practice. First, the comments discuss how the International Court of Justice has interpreted similar obligations in the past while applying the Convention on the Prevention and Punishment of the Crime of Genocide [17]. Relevant to the first obligation in this draft, the Court deemed that this obligation is not limited to a State’s own territory but wherever it is acting [18]. In interpreting an obligation like the second in this draft, the Court found that States should use their “best efforts (a due diligence standard)” in complying [19]. Lastly, the comments discuss how the formulation of the third obligation “relates to the conduct of either State or non-State actors” [20]. This approach encompasses individual behavior, which will prevent private people from using extraordinary circumstances as a defense to their crimes.  

Article 4: Obligation of Prevention 

Article 4 of the draft articles confers specific responsibilities on States that expand upon Article 3, Section 2: the duty to prevent crimes against humanity [21]. Article 4 says that for States to prevent crimes against humanity, they should promote legislative, administrative, judicial, or other preventive measures and cooperate with other States or intergovernmental organizations [22].  

Returning to the draft comments as well as the Convention on the Prevention and Punishment of the Crime of Genocide, we can gain insight into what things States are expected to do when fulfilling an obligation such as prevention [23]. Some of these expectations include protecting a State’s own population from the crimes, encouraging Member States to build their capacities to prevent, and appointing “focal points” for prevention [24]. Although these expectations were discussed initially in the context of genocide, they are appropriately transferrable here. In addition to discussing expectations in the genocide context, the comments also discuss the potential expectations for States, specifically in the context of crimes against humanity [25]. These include adopting national laws that promote early detection, reviewing those laws periodically, educating government officials on the State’s obligations, providing training for law enforcement, and, if an act is committed, investigating and prosecuting in good faith [26]. 

Finally, the comments discuss the importance of the second part of Article 4 by including text from the Charter of the United Nations [27]. One of the main purposes of the charter was to promote international cooperation to solve international problems [28]. Therefore, the second part of Article 4 directly aligns with this goal while also promoting the objective of preventing crimes against humanity.  

Conclusion

Although this is a dramatically broad overview of the proposed treaty, it hopefully sheds some light on the possibilities that are currently afoot. There is still a great deal of uncertainty regarding the outcome of this proposed treaty for crimes against humanity. However, regardless of the Sixth Committee’s final decision, the draft articles published by the ILC have revitalized an international interest in preventing and punishing crimes against humanity. 

[1] Trial International, Crimes Against Humanity, Trial Int’l, https://trialinternational.org/topics-post/crimes-against-humanity/ (last visited Mar. 12, 2024).  

[2] Q&A: Towards a Crimes Against Humanity Treaty, Hum. Rts. Watch, (Oct. 6, 2022), https://www.hrw.org/news/2022/10/06/qa-towards-crimes-against-humanity-treaty#Q2 

[3] Sixth Committee – Legal (78th Session), United Nations, https://www.un.org/en/ga/sixth/78/cah.shtml (last visited Mar. 13, 2024).  

[4] Id 

[5] Id 

[6] Id 

[7] Trial International, supra note 1.  

[8] Crimes Against Humanity, United Nations, https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml (last visited Mar. 13, 2024).  

[9] Home, Int’l Law Comm’n, https://legal.un.org/ilc/ (last visited Mar. 13, 2024).  

[10] Id 

[11] Sixth Committee (Legal), United Nations, https://www.un.org/en/ga/sixth/ (last visited Mar. 13, 2024).  

[12] Id 

[13] Sixth Committee – Legal (78th Session), supra note 3.  

[14] Q&A: Towards a Crimes Against Humanity Treaty, supra note 2.  

[15] Int’l L. Comm’n, Rep. on the Work of Its Seventy-First Session, U.N. Doc. A/74/10, at 47 (2019).  

[16] Id 

[17] Id. at 48. 

[18] Id 

[19] Id. at 49.  

[20] Id. at 53. 

[21] Id. at 54.  

[22] Id 

[23] Id. at 58. 

[24] Id 

[25] Id. at 59.  

[26] Id. 

[27] Id. at 61. 

[28] Id 

The Clothes Make the Man but the Woman Makes the Clothes: Fast Fashion and the Exploitation of Women of Color

By Katie Miller

Introduction

Fast fashion describes how clothing is poorly made to keep up with quickly emerging fashion trends and consequently engages in a cycle. Companies produce clothing rapidly and cheaply to meet the demands of fifty-two “micro-seasons”[1]. The cheaply made clothes cannot withstand multiple wears, so consumers must buy new clothes frequently, thus creating the “need” for numerous micro-seasons. Again, companies produce in a manner that is conducive to fifty-two micro-seasons, and so on. To balance profitability with the demands of weekly micro-seasons, fast fashion companies engage in exploitative labor practices such as overworking and underpaying garment workers.  

Although the exploitation of garment workers also occurs in the Western world [2], most Western companies practice offshoring, a form of outsourcing that labor from countries that have less labor protection laws. For example, foreign garment workers are not protected by domestic labor laws such as the National Labor Relations Act [3] in the United States or the National Minimum Wage Act 1998 [4] in the United Kingdom. Offshoring primarily occurs in Asian countries like Bangladesh, Myanmar, Cambodia, Thailand, China, India, Myanmar, Vietnam, and the Philippines [5], thus targeting women of color who are the majority racial demographic in those countries. China is the largest apparel exporter in the world, and in Bangladesh, the garment sector “was a USD 42.6 billion industry that accounted for about 82% of the country’s total export revenue” as of 2021-22 [6]. Because the garment industry dominates these countries’ markets, workers have few other options and are essentially forced to endure the brutal conditions of the garment industry. 

Exploitation Experienced by Women of Color Constitutes Modern-Day Slavery 

The feminization of labor [7] means that exploitative working conditions disproportionately affect women, especially those who perform unskilled manual labor such as garment work: “A key feature of globalization is the flexible and strategic employment of large pools of female labor willing to work for low wages at monotonous tasks” [8]. In 2020, “Of the 74 million textile workers worldwide, 80% are women of colour” [9].

After interviewing fifty-seven Bangladeshi garment workers, the International Labor Rights Forum found that “workers experience their workload itself as a safety issue, preventing necessary restroom or food breaks, causing managers to deny even medically necessary work leaves to which they are entitled, or forcing them to work late when safety may be more lax and accidents more likely” [10]. In addition to issues caused by an excessive workload, workers experience physical safety issues such as boilers and wires catching fire, inaccessible fire equipment, narrow fire exits, and visibly dirty facilities which frequently cause illnesses among workers – for which they cannot get sick leave [11]. Beyond physical safety issues, workers experience social safety issues such as sexual harassment and violence, usually committed by management [12], even in countries like Cambodia and India where there are laws forbidding workplace sexual harassment [13]. In Indonesia, the Jaba Garmindo factory was investigated for “the firing of pregnant workers and the harassment of trade union members” [14] who still have not been compensated with severance pay because the Fair Labor Association determined that “current international and national legal standards do not impose this responsibility [to compensate workers after a factory closure] on sourcing brands” [15].

Such severe exploitation and mistreatment are hardly different from the way colonial powers forced non-white people to endure slavery. In fact, in countries like India and Uzbekistan, there are direct parallels to slavery where people – including children – work in fields under poor working conditions to reap the cotton that will be manufactured into garments for the fast fashion industry [16]. Exploitation has even led to protests and riots. In 2017, workers in Myanmar making $2.63 per day started a riot in an H&M Factory to protest horrible working conditions [17]. 

International Labor Protections 

After the 2013 Rana Plaza disaster in which over 1,100 people were killed when a poorly-maintained factory in Bangladesh collapsed [18], more than 200 companies signed the Accord on Fire and Building Safety in Bangladesh (“Bangladesh Accord”), and 26 companies signed the Alliance for Bangladesh Worker Safety (“Alliance”) to implement safety reform measures such as inspections as well as corrective measures [19]. While the Bangladesh Accord provides remediation to address workers’ concerns, the Alliance did not allow for meaningful worker or union representation. The twenty-six company signatories were all apparel companies. The lack of representation was worsened by the fact that the Alliance only allowed workers to report concerns through a helpline that did not substantially address reports. In fact, soon after an inspection by the Alliance, “two workers were fired, in apparent retaliation for their union activities” [20].  As a result, workers were effectively discouraged from creating unions to represent their interests. Thankfully, the Alliance – which was responsible for 1.3 million workers in 714 factories [21] – ceased operations after its five-year term which ended in 2018 [22].  

As for the Bangladesh Accord, both apparel companies and unions are signatories, granting unions greater power in addressing and resolving safety issues: there is a binding arbitration process and union leaders are trained to understand the Bangladesh Accord and its mechanisms [23]. Inspection reports are also translated to Bangla and distributed in factories that do not have unions [24]. Despite the Bangladesh Accord’s valiant efforts, workers still face retaliation from factory management who verbally abuse workers and oppose unions and union formation [25].

The Bangladesh Accord was subsequently renewed in 2021 and again in 2023 when it transitioned to the International Accord for Health and Safety in the Textile and Garment Industry (“International Accord”) [26]. It establishes an agreement between trade unions and fashion brands to protect garment workers from “accidents that could be prevented with reasonable health and safety measures” [27] through “independent factory inspections, remediation, safety training, and an effective worker complaints mechanism” [28]. Signatories further commit to “exploring the expansion of [the International Accord’s] scope to include other human rights due diligence responsibilities” [29]. The legally binding International Accord creates Country-Specific Safety Programs (“CSSPs”) to be implemented in countries where offshoring is more common. CSSPs have been established in Bangladesh and Pakistan, with more to be established as the International Accord deems necessary. Although the International Accord provides hope for the protection of garment workers, there is still a gap in its coverage left unaddressed by the fact that the biggest fast fashion culprits like Shein and Forever 21 have not signed the International Accord [30]. 

Any solution to exploitative working conditions would likely shift the cost of production to the consumer, causing higher prices that may not be feasible for all consumers. However, the “Deloitte Access Economic report for Oxfam in 2017 found that paying a living wage to fast fashion garment workers throughout the supply chain may only increase the retail price of a garment by 1%. Similarly, researchers Hall and Wiedmann found that increasing the cost of clothing made in India by an average of 20c per item would be enough to lift all Indian garment workers out of poverty” [31]. This would give garment workers similar labor protections as those experienced by domestic workers at a very low cost.  

Conclusion

After the oil industry, “fast fashion is the #2 most polluting industry” [32]. In addition to its severe environmental impact [33], fast fashion creates a humanitarian crisis in which primarily women of color are exploited in the name of profit. To prevent gendered violence and unsafe working conditions, apparel companies must be held accountable for their role in exploiting these women. The government of the apparel companies’ home countries should require them to sign the International Accord and/or extend domestic labor protections to overseas workers.  

[1] Andrea Azevedo, The Impact of the 52 Micro-Seasons on the Environment, MEDIUM (Apr. 2, 2018), https://medium.com/@andreaazevedo_32670/the-effects-of-the-52-micro-seasons-on-the-environment-edd87951b74f

[2] See Ruben Rosalez, The Exploitation of Garment Workers: Threading the Needle on Fast Fashion, U.S. DEPARTMENT OF LABOR BLOG (Mar. 21, 2023),  https://blog.dol.gov/2023/03/21/the-exploitation-of-garment-workers-threading-the-needle-on-fast-fashion(“Garment workers [in the U.S.] who make the looks you love are paid some of the lowest wages in the nation, sometimes as little as $1.58 per hour – well below the legal minimum wage.”)see also Natalie KitroeffFashion Nova’s Secret: Underpaid Workers in Los Angeles Factories, THE NEW YORK TIMES (Dec. 16, 2019), https://www.nytimes.com/2019/12/16/business/fashion-nova-underpaid-workers.html#:~:text=In%20investigations%20conducted%20from%202016,by%20The%20New%20York%20Times (The U.S. Department of Labor “discovered Fashion Nova clothing being made in dozens of factories that owed $3.8 million in back wages to hundreds of workers”).

[3] See 29 U.S.C.A. § 151.

[4] National Minimum Wage: Policy on Enforcement, Prosecutions and Naming Employers who Break National Minimum Wage Law, GOV.UK (Feb. 20, 2024), https://www.gov.uk/government/publications/enforcing-national-minimum-wage-law/national-minimum-wage-policy-on-enforcement-prosecutions-and-naming-employers-who-break-national-minimum-wage-law#:~:text=The%20National%20Minimum%20Wage%20Act,or%20the%20National%20Living%20Wage. 

[5] Maya CheavFast Fashion and Outsourcing, CHAPMAN UNIVERSITY BLOG (Feb. 26, 2020), https://blogs.chapman.edu/sustainability/2020/02/26/fast-fashion-and-outsourcing/Jaclyn McCosker, The Impact of Fast Fashion on Garment Workers, GOOD ON YOU (Aug. 11, 2023), https://goodonyou.eco/impact-fast-fashion-garment-workers/#:~:text=And%20to%20increase%20profit%2C%20fast,%2C%20Vietnam%2C%20and%20the%20Philippines.  

[6] The Rana Plaza Disaster Ten Years On: What Has Changed? International Labour Organization (Apr. 2023), https://www.ilo.org/infostories/en-GB/Stories/Country-Focus/rana-plaza#intro [hereinafter The Rana Plaza Disaster]. 

[7] See Rebecca L. Zahn, Roger Blanpain, Susan Bisom-Rapp, William R. Corbett, Hilary K. Josephs, and Michael J. Zimmer. the Global Workplace: International and Comparative Employment Law, Cases and Materials20 Eur. J. Int’l L. 947, fn. 2 (2009) (“women account for 40% of the worldwide workforce but make up a majority of the working poor”).

[8] Laura A. Foster, Situating Feminism, Patent Law, and the Public Domain, 20 Colum. J. Gender & L. 262, 310 (2011). 

[9] Kalkidan Legesse, Racism is at the Heart of Fast Fashion – It’s Time for Change, THE GUARDIAN (Jun. 11, 2020), https://www.theguardian.com/global-development/2020/jun/11/racism-is-at-the-heart-of-fast-fashion-its-time-for-change

[10] Our Voices, Our Safety: Bangladeshi Garment Workers Speak Out, International Labor Rights Forum 58 (Dec. 2015), https://laborrights.org/sites/default/files/publications/Our%20Voices,%20Our%20Safety%20Online_1.pdf [hereinafter ILRF]. 

[11] Id. at 59-60.

[12] See Annie Kelly, Worker at H&M Supply Factory Was Killed After Months of Harassment, Claims Family, THE GUARDIAN (Feb. 1, 2021), https://www.theguardian.com/global-development/2021/feb/01/worker-at-hm-supply-factory-was-killed-after-months-of-harassment-claims-family. 

[13] See Aruna Kashyap, Tackling Sexual Harassment in the Garment Industry, HUMAN RIGHTS WATCH (Dec. 11, 2017), https://www.hrw.org/news/2017/12/11/tackling-sexual-harassment-garment-industry#:~:text=Similarly%2C%20in%20Cambodia%2C%20workplace%20sexual,how%20to%20perform%20their%20tasks.  

[14] Uniqlo and the Women Owed $5.5 Million, CLEAN CLOTHES CAMPAIGN (Mar. 6, 2020), https://cleanclothes.org/news/2020/uniqlo-and-the-women-owed-55-million

[15] Jaba Garmindo, Indonesia, FAIR LABOR ASSOCIATION (Jul. 8, 2021), https://www.fairlabor.org/reports/jaba-garmindo-indonesia/ 

[16] See David Browne, Child Labour and Exploitation in India’s Cotton Fields, EQUAL TIMES (Jun. 12, 2015), https://www.equaltimes.org/child-labour-and-exploitation-in?lang=ensee also Forced and Child Labour in the Cotton Industry, WORLD VISION ACTION (2012), https://www.worldvision.com.au/docs/default-source/buy-ethical-fact-sheets/forced-and-child-labour-in-the-cotton-industry-fact-sheet.pdf?sfvrsn=2#:~:text=This%20occurs%20when%20children%20are,of%20their%20health%20and%20education29.

[17] See Cheavsupra note 5. 

[18] The Rana Plaza Disaster, supra note 6. 

[19] See ILRF, supra note 10 at 69. 

[20] Id. at 73.

[21] An Industry Transformed: Leaving a Legacy of Safety in Bangladesh’s Garment Sector, Alliance for Bangladesh Worker Safety Fifth Annual Report 9 (Nov. 2018), https://bangladeshworksafety.files.wordpress.com/2023/08/alliance-fifth-annual-report-2018.pdf 

[22] See generally Alliance for Bangladesh Worker Safetyhttps://bangladeshworksafety.org/.  

[23] See ILRFsupra note 10 at 78.

[24] Id. at 79.

[25] Id. at 81-82.

[26] International Accord for Health and Safety in the Textile and Garment Industry, 1 November 2023, https://internationalaccord.org/wp-content/uploads/2023/11/International-Accord-for-Health-and-Safety-in-the-Textile-and-Garment-Industry-1-November-2023_Public-Version.pdf (entered into force 1 November 2023).  

[27] Id. at 1.

[28] Statement on Agreement on International Accord Framework for Health and Safety Programs (Nov. 6, 2023), https://internationalaccord.org/wp-content/uploads/2023/11/Statement_Agreement-on-International-Accord-framework-for-Health-and-Safety-programs-Updated-on-20-Nov-2023.pdf 

[29] International Accord, supra note 26 at 1. 

[30] See generally Signatories of the International Accordhttps://internationalaccord.org/signatories/?_signatory_categories=international-accord&_paged=3. 

[31] McCosker, supra note 5.

[32] Azevedo, supra note 1. 

[33] See Kirsi Niinimäki,The Environmental Price of Fast Fashion,Nat Rev Earth Environ 1, 189–200 (2020), https://doi.org/10.1038/s43017-020-0039-9

Congress and Crisis: Navigating the Complex Terrain of U.S. Foreign Policy Toward Ukraine

By Kenneth Gatten III 

Introduction

This article explores the role of the U.S. Congress in formulating United States foreign policy, particularly in response to Russias renewed invasion of Ukraine in 2022. Examining the constitutional framework that grants Congress certain powers in foreign policy matters, the article describes interactions between the legislative and executive branches through congressional committees, budget allocations, and high-profile visits abroad. The focus then shifts to Congresss role in shaping U.S. foreign policy towards Ukraine, showcasing a decade-long history of support and a recent breakdown in bipartisan consensus. The diverging views within Congress reflect broader ideological shifts, revealing the delicate balance between legislative and executive powers, partisan differences, and strategic considerations impacting U.S. involvement in Ukraine. The article concludes by highlighting the critical consequences of political battles in Washington for Ukraine, emphasizing the urgency of addressing these challenges in the broader context of international relations. 

How Congress Can Participate in Foreign Policy Making 

Benjamin Ginsberg and Kathryn Wagner Hill, professors at the Johns Hopkins University Center for Advanced Governmental Studies, provide a detailed overview of how Congress is empowered by the Constitution to participate in the foreign policy making process, how Congress has exercised its powers historically, and how its powers have evolved [1]. Based on these factors, the authors contend that the executive has marginalized the legislative branch in the realm of foreign policy making. This has occurred, they argue, through a struggle founded on the overlapping nature of the powers given to them by Articles I and II of the Constitution. 

Article I of the Constitution gives Congress the power to declare war, raise armies, regulate commerce [2], and ratify treaties and the appointment of ambassadors [3]. Article II makes the president commander in chief of the armed forces [4] and confers upon the executive the power to negotiate treaties, recognize foreign emissaries, and appoint ambassadors and consular officials [5]. Overlap is evident in many of these powers: how, in practice, does Congress enjoy the exclusive power to declare war while the president is commander in chief of the armed forces? How does the president appoint ambassadors when a potentially hostile Congress must ratify their appointments? 

In The Federalist No. 64, John Jay wrote of a struggle over the exercise of these powers, where the president has the advantages of better access to information, a greater capacity for secrecy, and an ability to act more quickly and decisively than Congress [6]. Alexander Hamilton believed, moreover, that the Constitution granted presidents the power to take the initiative in the foreign policy realm and undertake actions based on their own judgments of the national interest [7]. The U.S. Supreme Court has generally supported the Hamiltonian view of the president’s role in foreign policy [8]. For example, Justice George Sutherland ruled in the Court’s 7-1 opinion on the landmark 1936 Curtiss-Wright case that the president was the “sole organ of the federal government in the field of international relations” [9]. 

Executive agreements—whereby the president enters a politically binding obligation to another country without ratification by the countries’ legislatures—are one tool the president uses to marginalize Congress in conducting foreign policy. Usually, executive agreements are made pursuant to an act of Congress, but sometimes, they make commitments that the Senate would not lend two-thirds support. Congressional-executive agreements, which only require a simple majority in both houses of Congress, are another tool. U.S. membership in the World Trade Organization and the North American Free Trade Agreement (“NAFTA”) were confirmed by Congressional-executive agreement. A third highly powerful tool is national security directives, a specific form of Executive Order. These can compel the foreign policy bureaucracy to enact a variety of policies, including enforcing sanctions, performing military actions (such as airstrikes), gathering intelligence, and more [10].  

But while Congress has often deferred to the president, in recent years, it has not always given in. In 2015, for example, Congress invited Israeli Prime Minister Benjamin Netanyahu over President Obama’s opposition to address a joint session on the president’s efforts to strike a nuclear arms deal with Iran [11]. Eventually, nearly fifty Republican senators signed a letter to the Iranian government undercutting the Obama administration’s negotiations and potentially setting the terms of discussion in the United Nations Security Council, forcing the administration to take a tougher stance [12]. 

In both houses of Congress, standing subcommittees of the appropriations committees are tasked with determining funding for executive agencies including the State Department, foreign aid programs, and other matters. So, the Senate and House can cut or withhold funds for presidential priorities with which they disagree. In 2012, for example, Representative Kay Granger of Texas used her position as chairwoman of a House appropriations subcommittee to block $450 million in aid to Egypt that had been requested by the Obama administration [13].  

Congressional committees in the foreign policy realm include the Senate and House Foreign Affairs Committees, House and Senate Armed Services Committees, and House and Senate Intelligence Committees. These committees often question executive branch officials about matters of foreign policy. Members of these committees occasionally travel overseas for information gathering, as well [14]. Visits can be low- and high-profile, depending on the situation. In 2022, Nancy Pelosi made international headlines by traveling to Taiwan and provoking a military response from China that included the flying of military drones and firing of missiles over the island, violating Taiwan’s airspace in an act of intimidation [15]. 

Congress’s Participation in the Formulation of U.S. Foreign Policy Toward Ukraine 

There is a nearly decade-long history of Congressional support for military assistance to Ukraine. Before Russia launched its renewed invasion in 2022, Congress had authorized $2.8 billion in military assistance following Russia’s initial invasion in 2014 [16]. Following the 2022 invasion, during 2022 and 2023, Congress authorized $48.7 billion total of supplemental appropriations to fund security assistance to Ukraine [17]. Most notable were its increases of the funding cap for the Presidential Drawdown Authority (“PDA”) from $100 million to $11 billion for 2022 and to $14.5 billion for 2023, and its $18 billion in total appropriations to the Department of Defense’s Ukraine Security Assistance Initiative (“USAI”) during the two fiscal years [18]. The USAI funds long-term weapons contracts, while the PDA empowers the President to authorize the transfer of articles and services from U.S. stocks, up to a funding cap established in law. Most military aid has been sent under the PDA. 

After the invasion in February 2022, Congress acted quickly to authorize these funds, fast-track the confirmation of Bridget Brink as U.S. Ambassador to Ukraine [19], conduct visits to Kyiv to gather information and express solidarity [20, 21, 22], and convene with North Atlantic Treaty Association (“NATO”) Secretary General Jens Stoltenberg in May 2022 [23], among other actions. Bipartisan delegations visited Ukraine in the months following the renewed invasion, often speaking to Ukrainian President Volodymyr Zelensky and stopping in the city of Bucha, where civilians were executed and buried in mass graves by Russian soldiers during the Battle of Kyiv. Congressional visitors included Republicans Senator Steve Daines and Representative Victoria Spartz in April 2022 [24], Speaker Nancy Pelosi and a small delegation of Democrats in May [25], and a senior delegation including House Armed Services Committee Chair Adam Smith in July [26].  

Over time, however, bipartisanship has broken down as views about U.S. obligations toward international institutions such as NATO, which ostensibly act to reduce conflict and secure mutual benefits for member states, have bifurcated within the Republican caucus. It could be said that some Republicans in Congress advocate for a Reagan-esque assertion of U.S. power on the world stage, while others support the growing, isolationist “America first” wing of the caucus [27].  

One proponent of the latter viewpoint is Representative Scott Perry, Chairman of the House Freedom Caucus. Perry questioned officials at the three main agencies tasked with oversight on aid provided to Ukraine during a hearing held by the House Foreign Affairs Committee on March 29, 2023 [28]. After the three officials provided testimony attesting to finding no evidence of misuse, Perry rhetorically demanded further “assurance that none of that money that’s being sent to arguably one of the most, if not the most, corrupt country on the planet is being misused, misspent, lost.” Fellow Freedom Caucus member Representative Marjorie Taylor Greene is one of the Republicans [29] in Congress who opposes providing assistance to Ukraine because she believes it is fighting “a losing war” and should pursue “peace talks” [30].  Ranking Republicans in both houses of Congress have signed a letter pressing the Government Accountability Office to ensure “mechanisms are in place to assess whether assistance is reaching its intended beneficiaries in Ukraine” [31].  

Senate Minority Leader Mitch McConnell dismisses his Republican colleagues’ suspicions about aid misuse [32]. He maintains that assistance for Ukraine is being spent on “rebuilding our industrial base” and “destroying the armies of one of our biggest rivals” [33]. He also emphasizes the importance of the role played by European allies who “have done quite a lot” by contributing aid themselves and “housing a bunch of refugees who escaped” [34]. McConnell stated during a CNN interview in October 2023 that he believes providing assistance to Ukraine in collaboration with NATO allies is a vital U.S. strategic interest [35]. 

But in authorizing new assistance for Ukraine, McConnell must strike a deal with Republican leaders in the House, on whom there is immense pressure to accommodate a narrative that the U.S. faces a financial tradeoff between assisting Ukraine and shoring up the U.S. southern border. On August 10, 2023, the White House penned a letter to Speaker of the House Kevin McCarthy requesting the inclusion of an additional $24 billion in assistance for Ukraine in the 2024 government budget [36]. But due to Republican opposition to the measure, President Biden had to settle for a stopgap budget bill in November that included no assistance for Ukraine [37]. On December 6, 2023, Republicans in the Senate went so far as to vote down a supplemental aid bill for Ukraine, with an eye toward exacting concessions on border security from President Biden and Democrats in Congress [38].  

A group of Senate Republicans and Democrats unveiled on February 4 a bipartisan bill that addressed Republicans’ concerns about southern border security while providing aid to Israel and Ukraine. However, former President Trump called it “a great gift to the Democrats” heading into the 2024 presidential elections [39], and Senate Republicans ultimately voted the measure down [40]. On February 13, the Senate passed a standalone bill to provide aid to Israel and Ukraine, but passage in the House remains uncertain as Greene has threatened to bring a motion to vacate the speaker if Johnson introduces a bill that fails to address southern border security [41]. 

Unfortunately, political battles in Washington constitute an existential issue for Ukraine [42], where delays in assistance mean a sharp drop in firepower and an increase in casualties for their armed forces [43]. The Department of Defense has asked Congress for $18 billion to replenish stocks drawn down under the PDA, but President Biden must either wait for Congress to authorize the funding or draw down U.S. defense stockpiles without being able to replenish them [44]. “We feel hostage to the internal political struggle in the United States,” said Yehor Cherniev, a Ukrainian lawmaker who serves on the country’s National Security Committee, in an October interview for Foreign Policy [45]. 

Conclusion 

The breakdown of bipartisan support for assistance to Ukraine since Russia’s renewed invasion of 2022 reflects an ideological shift within Congress, with diverging perspectives on U.S. obligations toward allies and international institutions. Specifically, while some Republicans in Congress scrutinize aid to Ukraine, alleging misuse, others stress the strategic importance of supporting Ukraine’s fight against Russian aggression in collaboration with NATO allies. Prevailing views about the U.S. facing a tradeoff between border security and assisting Ukraine reveal the balance that exists between Congressional powers, partisan differences, and the strategic considerations guiding U.S. involvement in Ukraine. However, while U.S. assistance to Ukraine is held up in Congress, Kyiv faces the prospect of reduced firepower and higher casualty rates in its fight against Russia’s reconstituting armed forces. 

  1. Benjamin Ginsberg & Kathryn Wagner Hill, Congress: The First Branch (2019).  
  2. U.S. Const. art. 1, § 8, cl. 3, 11, 12. 
  3. U.S. Const. art. 2, § 2, cl. 2. 
  4. U.S. Const. art. 2, § 2, cl. 1. 
  5. U.S. Const. art. 2, § 2, cl. 2. 
  6. Alexander Hamilton et al., The Federalist papers (2019), https://guides.loc.gov/federalist-papers/text-61-70.  
  7. Alexander Hamilton & James Madison, Letters of Pacificus and Helvidius (1976).  
  8. Ginsberg & Hill, supra note 1, at 213-238.  
  9. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). 
  10. Presidential Directives (2022), https://www.phe.gov/s3/law/Pages/Directives.aspx (last visited Feb 1, 2024).  
  11. Ginsberg & Hill, supra note 1, at 213-238. 
  12. Kathleen H. Hicks et al., Congress, Foreign Policy, and the Public, Beyond the Water’s Edge: Measuring the Internationalism of Congress, 10–18 (Sept. 26, 2018).  
  13. Ginsberg & Hill, supra note 1, at 213-238. 
  14. Hicks et al., supra note 12, at 10–18.  
  15. Jude Blanchette et al., Speaker Pelosi’s Taiwan visit: Implications for the indo-pacific, Center for Strategic and International Studies (Aug. 15, 2022), https://www.csis.org/analysis/speaker-pelosis-taiwan-visit-implications-indo-pacific.  
  16. Christina L. Arabia et al., CRS Report No. IF12040 (2024), https://crsreports.congress.gov/product/pdf/IF/IF12040.  
  17. Id.
  18. Id. 
  19. Andrew Desiderio, Senate unanimously confirms Brink as Ukraine ambassador, Politico (May 18, 2022), https://www.politico.com/news/2022/05/18/senate-unanimously-confirms-brink-as-ukraine-ambassador-00033654.  
  20. Brad Dress, Why Republicans are Souring on Ukraine, The Hill (Nov. 29, 2023), https://thehill.com/policy/defense/4331169-why-republicans-are-souring-on-ukraine/.  
  21. Zoe Richards, Two GOP lawmakers become first U.S. officials to visit Ukraine since Russia’s invasion, NBC News (Apr. 14, 2022), https://www.nbcnews.com/politics/congress/two-gop-lawmakers-become-first-us-officials-visit-ukraine-russias-inva-rcna24504.  
  22. Top U.S. delegation visits Kyiv, vows to ensure continuing support (July 23, 2022), https://www.reuters.com/world/europe/top-us-delegation-visits-kyiv-vows-ensure-continuing-support-2022-07-24/.  
  23. NATO Secretary General Welcomes US Congress Delegation to NATO Headquarters, NATO (May 20, 2022), https://www.nato.int/cps/en/natohq/news_195748.htm.  
  24. Richards, supra note 21.  
  25. Michel Martin & Jason Crow, U.S. congressional delegations meets with Ukrainian leaders in Kyiv, NPR (May 1, 2022), https://www.npr.org/2022/05/01/1095839377/u-s-congressional-delegations-meets-with-ukrainian-leaders-in-kyiv.  
  26. Top U.S. delegation visits Kyiv, vows to ensure continuing support, supra note 22.  
  27. Dress, supra note 20. 
  28. Oversight, Transparency, and Accountability of Ukraine Assistance: Hearing before the U.S. House of Representatives Committee on Foreign Affairs, 118 Cong. (2023). https://www.congress.gov/118/chrg/CHRG-118hhrg52399/CHRG-118hhrg52399.pdf. 
  29. Lauren Sforza, Senate Republican says US needs to accept Ukraine will “cede some territory” to Russia, The Hill (Dec. 10, 2023), https://thehill.com/homenews/senate/4352409-senate-republican-says-us-needs-to-accept-that-ukraine-will-cede-some-territory-to-russia/.  
  30. Mike Lillis, GOP infighting over Ukraine creates minefield for speaker Johnson, The Hill (Jan. 19, 2024), https://thehill.com/homenews/house/4417036-gop-infighting-ukraine-speaker-johnson/.  
  31. Jim Risch & Michael McCaul, Risch, McCaul Demand Information from Gao on U.S. Assistance to Putin’s Unprovoked War on Ukraine (Dec. 8, 2022), https://www.foreign.senate.gov/press/rep/release/risch-mccaul-demand-information-from-gao-on-us-assistance-to-putins-unprovoked-war-on-ukraine.  
  32. Interview with Mitch McConnell, U.S. Senator, CBS (Oct. 22, 2023).  
  33. Id. 
  34. Id. 
  35. Id.  
  36. Shalanda D. Young, Letter regarding critical needs for the American people, The White House (Aug. 10, 2023), https://www.whitehouse.gov/omb/briefing-room/2023/08/10/letter-regarding-critical-needs-for-the-american-people/.  
  37. Alexander Bolton, McConnell backs speaker’s spending proposal despite lack of Ukraine money, The Hill (Nov. 14, 2023), https://thehill.com/homenews/senate/4307868-mcconnell-backs-speakers-spending-proposal-despite-lack-of-ukraine-money/.  
  38. Karoun Demirjian, Republicans block aid to Ukraine, jeopardizing its fight against Russia, The New York Times (Dec. 6, 2023), https://www.nytimes.com/2023/12/06/us/politics/senate-ukraine-aid-bill.html.  
  39. Brett Samuels, Trump calls border bill ‘a Death Wish’ for Republican Party: ‘Don’t be STUPID!!!’, The Hill (Feb. 5, 2024), https://thehill.com/homenews/campaign/4448556-trump-calls-border-bill-a-death-wish-for-republican-party-dont-be-stupid/. 
  40. Lisa Mascaro & Kevin Freking, Senate passes $95 billion aid package for Ukraine and Israel, fate uncertain in House, PBS (Feb. 13, 2024), https://www.pbs.org/newshour/politics/senate-passes-95-billion-aid-package-for-ukraine-and-israel-fate-uncertain-in-house. 
  41. Siobhan Hughes & Lindsay Wise, Mike Johnson’s Chaotic House Searches for Path on Ukraine, Wall Street Journal (Feb. 16, 2024), https://www.wsj.com/politics/policy/mike-johnsons-chaotic-house-searches-for-path-on-ukraine-9b84cd7a. 
  42. Robbie Gramer, How congressional chaos hampers U.S. aid to Israel, Ukraine, Foreign Policy (Oct. 16, 2023), https://foreignpolicy.com/2023/10/16/congress-israel-ukraine-house-speaker-republicans-foreign-policy/.  
  43. Jack Detsch & Robbie Gramer, U.S. budget deal has Europe questioning American resolve on Ukraine, Foreign Policy (Oct. 3, 2023), https://foreignpolicy.com/2023/10/03/ukraine-war-congress-battle-funding-republicans-balk-ukraine-aid-russia/.  
  44. Arabia, supra note 16.  
  45. Detsch & Gramer, supra note 43.  

The Influence of the United States of America’s Legal System on the Legal System of Latin America

By Luisa M. Penagos

Introduction

Historically, the term “legal system” has been used to describe the unity of “rules, procedures, and institutions” [1] that nations around the world have found it necessary to regulate and establish order in their territory. Taking into account the differences in culture and ideology among all countries, the authority for those rules, procedures, and institutions is derived from many sources. Some of them include the people of the nations as the sovereign power, the conventions of constitutions as the supreme law, and finally, a democratic and republican organization composed of executive, legislative, and judiciary powers. Accordingly and based on a comprehensive review of history, this article will provide a brief overview of how the majority of countries in Latin America, have more similarities with the Legal System of the United States, than with the legal systems of their colonizers such as the United Kingdom of Great Britain (UK), Spain, and the Netherlands.  

To accomplish the objective, firstly, this article provides a brief description of the legal systems of the United Kingdom of Great Britain, Portugal, and Spain, focusing on the differences with the United States. Secondly, it will study the main sources of the legal system in the United States. Finally, by examining these differences, this article will show the similarities between North America and Latin America and explore the possible reasons for these countries to follow the United States.  

Description of the United Kingdom of Great Britain, Portugal, and Spain’s Legal Systems 

The United Kingdom of Great Britain, Netherlands, and Spain are founded on a monarchy and a parliamentary democracy as the structure of government. This means that the King or Queen represents the sovereign and serves as the “head” of the state power, a position reached through inheritance [2]. On the other hand, however, the Parliamentary is the unique democratic expression of the people [3]. The high power over the King or Queen, for example, is detailed particularly in Article 2 of Spain’s Constitution, which describes how the King has the power to create and disband courts, propose optional presidential candidates, serve as the commander in chief of the armed forces, and enact laws [4].  Portugal, however, moves away from monarchy as the structure of its government and establishes a democratic and republic government.  In Portugal, the legitimacy lies in the representatives of the people in accordance with the principle of the Constitution as the supreme law [5] because it is an expression of the will of the people.  

Conversely, in contrast to monarchy governments, there is not a strong development nor differentiation concerning the concept of a “supreme law”, the specific role of the constitution is to define the boundaries between the people and the government. This limited role is shown in the absence of a clear provision that defines the powers and scope of the government, as many legal scholars have analyzed this topic as well as the fact UK’s parliament can enact laws without limits [6].  

Description of the United States of America’s Legal System 

The legal system of the United States of America differs from the legal systems of Europe in several important ways. Firstly, it is a republic founded on a structure of presidentialism and federalism formed by the states. There is no authority of a king or queen because the sovereignty and legitimacy of power lie with the people [7]. These aspects are interpreted according to Akhil Reed Amar “as not merely a text but a deed a constituting. We the People do ordain” [8]. The power is between the legislative, executive, and judiciary.  The members who compose the first two branches are chosen by the people, and although Congress has control over the judiciary, it can be determined as a control given by the people who vote for them [9].  

The United States Constitution in comparison with European constitutions studied above, is clear in defining and limiting the government powers through Articles 1, 2, and 3. These Articles and the corresponding sections explain detail by detail the qualifications, requirements, and functions of Congress, the President, and the Courts [10]. This serves to reduce the possibility of an abuse of power against the people who composed the nation, and it is a reflection of the supremacy of the Constitution over any other law, even over the authority of the states.  

Brief Overview of Select Latin American Legal Systems  

Latin American countries were colonized by Europe, mainly by the monarchy government of Spain, however to this day, there are more differences in the form of government and legal system than similarities, despite the significant influence of Europe on the continent.  

The most notable characteristic is that there is no monarchy authority in any of the twenty countries including Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, and Venezuela. The form of government in the majority of these countries is republic and presidentialism, being the people and the majoritarian control the justification of power in the government. Similarly, most of these countries declare the sovereignty of the government in the people just like in the United States in the preamble of their constitutions [11]. The form of government established in these countries as republican democracies implies that the powers are divided also in legislative, judicial, and executive, considering the concern about the possible abuse of power. For this reason, each constitution designates certain powers between the branches to maintain a balance between them. Finally, their supreme law is the constitution as an expression of the people over any other law, decree, or resolution that Congress may issue in the future.  

The proximity of Latin American countries to the United States can be attributed to several factors, one key factor is the development of the legal system. By the time Latin American countries gained independence, the United States had already established its legal framework. while Latin American countries were independent mostly after 1836 [12], the United States claimed its independence on July 4th of 1776 [13]. This earlier development of institutions and form of government works for Latin America as a model of successful democratic governance against colonial rules. Also, as a result of the independence the United States experienced earlier development in aspects such as commerce and trade compared to Latin American countries. This implies how these last countries adapt in their system rules that allow an easy cooperation with North America.  

Conclusion

In summary, Latin America, inspired by the successful legal development of the United States, established governments structured as democratic republics, centered around presidentialism. In these systems, power is divided among three branches, each with specific functions aimed at preventing abuses of power and maintaining a system of checks and balances. Most importantly, sovereignty resides with the people, eliminating monarchy and establishing the constitution as the supreme law, superior to any branch of government.

[1] Legal Information Institute (LLI), “Legal Systems” https://www.law.cornell.edu/wex/legal_systems#:~:text=A%20legal%20system%20is%20the,uses%20its%20own%20legal%20system (last visited Feb. 10, 2024).  

[2] Constitución Española [Spanish Constitution] (as promulgated Dec. 27, 1978), art. 57, title II.  

[3] The Role of Monarchy, “The Royal Household”, https://www.royal.uk/role-monarchy (last visited Feb. 10, 2024).

[4] Constitución Española [Spanish Constitution] (as promulgated Dec. 27, 1978), art. 62.  

[5] Constituição da República Portuguesa [Constitution of the Portuguese Republic] (as promulgated Apr. 2, 1976), pmbl, art 3, 6, 18. 

[6] The Constitution Explained, “The Constitution Society”, https://consoc.org.uk/the-constitution-explained/the-uk-constitution/#why-is-the-uk-constitution-different (last visited Jan. 15, 2024).  

[7] U.S. const. pmbl. 

[8] Reed A. Akhil, America’s Constitution: A Biography, (1st ed 2005).  

[9] U.S. const, art. I, § II; art. III, § I. 

[10] Id 

[11] Some examples of the people’s sovereignty are included in the following constitutions: Political Constitution of the Republic of Costa Rica, art. 9; Constitution of the Republic of El Salvador, preamble; Constitution of the Federative Republic of Brazil, art. I, § I; Political Constitution of the Republic of Colombia, preamble.

[12] The Declaration of Independence 1776, “Office of the Historian” https://history.state.gov/milestones/1776-1783/declaration#:~:text=By%20issuing%20the%20Declaration%20of,political%20connections%20to%20Great%20Britain (last visited Feb. 25, 2024).

[13] Latin Independence Days, “Smithsonian Latino Center”, available at https://latino.si.edu/hhm/latin-independence-days#:~:text=The%20Age%20of%20Revolutions%20began,Rico%20and%20Cuba%2C%20gained%20independence (last visited Feb. 25, 2024).  

 

 

How the Housemaker Gets the Deserved Share in Divorce- Comparison Between China and the U.S.

By Yanyan Pan

Housemaker is a position typically held by married women. It refers to women who take care of the family full-time and do not work outside the home. According to the China Bureau of Statistics, if maternal love can be counted, the value of a housewife’s work in a year can reach at least 1.24 million yuan (about 170,000 U.S. dollars) [1]. It is undeniable that housemakers play a vital role in stabilizing marriage and family relationships, while sacrificing corresponding economic rights and voice. Therefore, how to balance this is an important part of the law. This article intends to focus on the housework compensation system, compare the differences between the Chinese and American systems, and analyze the reasons behind it. 

I. Housework Compensation System in China 

A. History

The most important statute regarding marriage and divorce at that time, The Marriage Law of the People’s Republic of China (2001) already contains the relevant contents. Article forty states “In the case both husband and wife agree to separately own the property they respectively obtain during the existence of their marriage and either of them has spent considerably more effort on supporting children, taking care of the old or assisting the other party in work, etc, this party shall be entitled to demand the other party to make compensations at the time of divorce, and the requested party shall make compensations” [2]. However, it is clearly shown that the application of this clause needs to meet the requirement that both parties agree on a separate property system. In fact, under the social conditions of that time, few couples would make such an agreement, which makes the system shelved. 

In 2010, Zhang Xiaomei, a member of the Chinese People’s Political Consultative Conference, proposed “wage-based housework”. Although the specific content is slightly absurd (a husband pays his wife a salary), it reflects society’s recognition of the value of the housemaker and the concern for their interests. As a result, it further promotes the development of the system. 

In 2021, the Civil Code of the People’s Republic of China came into effect, and Article 1088 established the housework compensation system, which is a provision that further recognizes the value of housework. Revised from the 2001 version, the update eliminated the requirement that financial compensation for divorce only applies under the agreed property system. Instead, it expands the scope of economic compensation, encompassing both the statutory property system and the agreed property system. Additionally, it provides a specific method of compensation that “it should be agreed upon by both parties. If an agreement cannot be reached, it shall be adjudicated by the People’s Court” [3]. The parties are encouraged to engage in consultations and reach decisions independently, adhering to the principle of autonomy in private matters. 

B. Institutional Analysis

There is no doubt that in the process of development, the housework compensation system has consistently upheld the principle of respecting the value of housework. This is based on the requirement of the marriage institution, which seeks to address the issue where the value of household labor is primarily appropriated by one party during divorce. Firstly, housework is an indispensable part of maintaining a family and is the responsibility of both spouses. As illustrated before, when one party bears more family obligations, it will inevitably make them sacrifice more and occupy their time and energy which should be invested in self-realization. Therefore, the right to claim for housework compensation is a right granted to a specific subject when divorcing. It is also a reflection of correctly evaluating the contribution of housework or assistance to the family and realizing the substantive equality of the relationship between the couple. 

To be specific, exercising rights needs to meet several conditions below. First, unlike twenty years ago when the couple needed to agree on separate property, housework compensation no longer needs to consider the property system implemented by the two parties during the marriage. Secondly, one in the couple should bear more family obligations compared to the other listed in the Civil Code, such as raising children, caring for the elderly, assisting the other spouse with work and so on. Assuredly, the applicable circumstances of divorce financial compensation are not limited to the above three aspects, and any obligation for the benefit of the family (i.e. housework) should be included. Thirdly, the compensation must be proposed by one party on its own initiative, and the court may not proactively apply. This is also a manifestation of the principle of no trial without complaint. Last but not least, the claim should be proposed at the time of divorce which is based on the original purpose of this system design. Such compensation is set to make up for the potential economic disparities that divorce may bring about. What’s more, the system strongly adheres to the principle of autonomy, which means that if both parties have reached an agreement on the amount of household compensation, that agreed-upon amount will be given priority without the need for further judicial assessment. 

C. Existing Problems

In 2021, in a divorce case that concluded in Fangshan District, Beijing, the housewife, shouldered most of the housework in the family. According to the divorce economic compensation clause, the court determined that in addition to the equal division of the common property of more than 100,000 yuan between the two parties, the husband also needs to pay the woman 50,000 yuan for the economic compensation. Although the value of housework cannot be measured simply by money, how to definitively achieve the purpose of compensation and reasonably quantify the value of labor is an important test that this system is faced with. Through the judgments on the China Judgments Online Website, it can be observed that the courts primarily decide based on the following standards. Firstly, housework and common market services are not the same, and calculating them based solely on market prices may not be that fair, but it is of reference value. Furthermore, the extent to which the parties undertake housework, the financial capacity of the paying party, as well as the local economic conditions and living standards, are also important factors for the courts to consider. However, these are all outcomes of the court’s discretionary judgment and are determined based on the specific circumstances of each case. There is no objective and impartial measurement method for these considerations. As a result, in the revised draft of the Law on the Protection of Women’s Rights and Interests, it was proposed that an appropriate evaluation system should be introduced to improve the implementation of the housework compensation system, which is an issue worth considering. 

II. Housework Compensation System in the U.S. 

Looking at the relevant legal sources of American law, there is no direct clause about the housework compensation system, but it appears as a factor in determining property distribution in divorce and has improved with the development of time. At this point, it is very similar to that of China. Specifically, these early statutes disproportionately disadvantaged women because during the last few centuries, the participation of women in the workplace was much less than that in the house. It is taken for granted that women are supposed to devote themselves to the family. Meanwhile, as these statutes pay more attention to monetary income, they have failed to account for the contributions of the spouse as homemaker and child-raiser. 

A. Similar Clauses

Although there is no unified code in the common law system, Article 307 of the 1970 Uniform Marriage and Divorce Act of the United States makes similar provisions, stipulating that the court shall divide community property, without regard to marital misconduct, in just proportions after considering all relevant factors including the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker. In addition, based on the existing judicial precedents, it can also be seen that although different jurisdictions allow the recognition of different factors, “The contribution made by both spouses to the acquisition of marital property, including the contribution made by the housewife is one of the important factors considered by most courts in the distribution of divorce assets” [4]. This will serve the purpose of fairness. 

B. Related System—Spousal Support 

Spousal support refers to the alimony or maintenance payments made by one party to another after divorce, when one party experiences financial hardship and the other has the ability to provide economic support. It is also called maintenance or alimony. It is essentially one part of the divorce relief system. As illustrated before, China’s current housework compensation system is still in its infancy and has not yet achieved the ideal implementation results. Housemakers, as the vulnerable party who have been unemployed for a long time, are naturally important targets for alimony. Therefore, although there is no clear housework compensation system in the American legal system, the alimony system also demonstrates the same goal: to protect the lives of divorced parties and reduce the negative impact of divorce on the parties and society. 

The alimony theory views marriage as a contract between a couple who agrees to unite their social and economic futures through marriage and divorce as a breach of that agreement. Despite fair distribution of joint property in modern no-fault divorce, the alimony system still needs to compensate for women’s post-divorce vulnerability and maintain their pre-divorce living standards [5]. Another theory for the award of post-divorce alimony is economic. From the perspective of the division of assets and liabilities between the parties after divorce, this perspective is more closely related to the housework compensation system. Because economic means income, the spouse’s invisible contribution to the marriage is not properly represented, although these services are valuable [6]. As a matter of fact, there may not be any direct benefit when the court decides on the division of property. However, there is no doubt that what homemakers do contributes to the assets of the family, making it particularly necessary for alimony to be implemented. Additionally, homemakers often choose to become homemakers because they view it as a type of investment. They have incurred opportunity costs and assumed corresponding risks; therefore they should evidently receive compensation upon divorce. 

There are two kinds of spousal support: permanent and rehabilitative. Permanent spousal support is generally appropriate when the disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities lost in the course of the marriage [7]. Rehabilitative spousal support is awarded in a divorce proceeding to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status by providing a disadvantaged spouse an opportunity to acquire an education, training, work skills, or experience to become self-supporting [8]. The choice of these two remedies is judged on the individual circumstances of the case and is intended to ensure that the parties equitably share the impact of the overall reduction in their respective living standards. 

III. Conclusion

Based on the content above, it can be found that the divorce relief systems in both countries fully reflect the respect for housewives and the pursuit of substantive equality in the relationship between spouses. Only the emphasis is slightly different. Although China’s civil law has set up special provisions for housewives, the implementation conditions are still insufficient and need to be improved. At the same time, there is no alimony system, and the content of divorce relief is only approximate. The specific amount, implementation, and other factors are still pending. The inception of the alimony system within American marriage law occurred early on, leading to the establishment of a relatively thorough and comprehensive framework aimed at safeguarding the more vulnerable party within a marital union. By drawing upon valuable aspects and refining them, certainly, the law can better balance the relationship between spouses and uphold the interests of the disadvantaged party. 

1. Cynthia Lee Starnes, Alimony Theory, 45 Fam. L.Q. 271 (2011). 

2. Gao liu-zhi, On the Legislative Completeness of Compensation for Homework on Divorce. 22 Hebei L. Sci. 48-51 (2004). 

3. Ho-Po Crystal Wong, Credible Commitments And Marriage: When The Homemaker Gets Her Share At Divorce, 82 J. Demographic Econ. 241-279 (2016). 

4. Chen Li-juan, Legal and Economic Analysis of the Right to Claim Compensation for Housework, 79 Collection Women’s Stud. 5-8 (2007). 

5. Zhanhuiyu, What exactly does the 50,000 yuan housework compensation compensate?—An analysis of the housework compensation system in the Civil Code, Shantou Government, https://www.shantou.gov.cn/sfj/qwpfzt/qwpfzt/yasfdxpfalk/content/post_1885739.html. 

6. Duyang, Zhaoli, The Civil Code “awakens” the housework compensation system. How is the amount determined? Legal Daily, https://www.chinacourt.org/article/detail/2021/06/id/6106929.shtml. 

7. Harry D. Krause & David Meyer, Family Law of the USA in a Nutshell, 5 Thomson Bus., 311-324 (2007).

8. Diana S. Friedman et al., Theories About Why States Allow Alimony, TXCLE-AFL 7-V (2020).