Congolese Cobalt: A Growing Human Rights Catastrophe

By Rayna Alexander

Introduction

In the Democratic Republic of Congo (DRC), one of the world’s poorest countries, an increase in mass violence and internal displacement is the result of militia infighting over mineral reserves (M23 rebel group, for example) [1]. Since October 2023, 6.9 million Congolese people have been displaced due to violence and rebel attacks–400,000 the result of forced evictions from cobalt mining [2]. The blue-green mineral, cobalt, is at the forefront of the green revolution. Used in electric vehicles and lithium-ion batteries, global demand for the mineral is anticipated to double by 2030 [3]. More than sixty percent of the world’s cobalt is produced in the DRC [4]. The mineral is primarily extracted from the southern province of Lualaba near the country’s cobalt capital Kolwezi. Ironically, as global industries move towards “clean” and “green” electric technologies, the rush for cobalt amounts to a growing human rights catastrophe.

Background

Cobalt mining in the DRC is divided into two sectors: the formal industrial mining sector and the informal artisanal mining sector (an estimated fifteen to thirty percent of the artisanal mining sector is informal) [5]. Upwards of 200,000 artisanal miners, known as creuseurs, work in cobalt mines in the country, and more than a million others–including young children–are economically dependent on industries within the informal sector (marketing, sales, washing, etc.) [6]. Regardless of efforts to monitor the industry, artisanal cobalt is bought by roving traders, oftentimes through bribes, and distributed to maisons d’achats, or small shacks meant to be owned by Congolese nationals. However, many are managed by Chinese business operatives who circumvent the law through bribes and sell the ore to processing facilities that blend the mineral with industrial-mined cobalt. One anti-slavery activist noted, “There is no such thing as a clean supply chain of cobalt from the Congo” [7].

Analysis

Artisanal cobalt mines are often haphazardly dug, lack structural support, and are at risk of collapse. Frequent collapses suffocate the creuseurs trapped inside. The government agency, Service d’Assistance et d’Encadrement du Small Scale Mining, is responsible for regulating artisanal mining in Zones d’Exploitation Artisanale or artisanal mining zones in the Democratic Republic of Congo. However, the bureaucratic process of establishing official artisanal zones is both lengthy and costly [8]. Currently, not enough zones exist to accommodate the network of miners in the region. As a result, creuseurs often mine in unregulated areas or trespass in industrial mines. In the DRC, a lack of state government authority makes local, legal enforcement difficult outside of the capital of Kinshasa [9]. Often, military personnel respond to local sources of authority, as opposed to national ones. One analyst aptly noted President Felix Tshisekedi acts more as the mayor of Kinshasa, than as president of the Democratic Republic of Congo.

According to the International Labor Organization’s Minimum Age Convention (1973), the minimum age for hazardous work is eighteen years [10]. The DRC set its minimum working age to fourteen when it ratified the Convention in 2001 [11]. In Kolwezi, however, children as young as three aid in extracting the ore from mined rock slabs [12]. Artisanal mining supplements poor families’ incomes; 40,000 children (some as young as seven) work in cobalt mines for less than $2 a day [13]. Young miners are exposed to harmful byproducts, grueling physical labor, unsafe conditions, and exploitation. Some are even drugged to suppress hunger during extensive mining shifts [14]. Compared to the first six months of 2022, the increase in grave violations against children increased by forty-one percent in the first half of 2023 [15].

Children are among the most vulnerable of the Congolese people trapped in the mining industry [16]. Militias kidnap many children to work in cobalt mines. To make matters worse, the minimal compensation children receive for mining is funneled into the militia’s accounts. Congolese people are pressured not only by the lack of economic alternatives but also by armed militias forcing the poor to mine. Daily, parents deal with the horrific decision: “Do I send my child to school, or do we eat today?”[17]. The latter choice means grueling hours in toxic pits to earn fifty cents or a dollar that day. Given the scale of degradation, exploitation, and the lack of livelihood alternatives, one National Public Radio report claimed, “In the 21st century, this is modern-day slavery” [18].

Conclusion

For human rights abuses to be adequately addressed, holistic action must take place. Consumers of technology must demand publicized supply chains and further efforts to source cobalt ethically (including “fair trade” markings). Federal and international mandates requiring companies like Apple and Tesla to disclose supply chains and contracts would provide more transparency. Multinational corporations must demand more from suppliers, specifically Chinese corporations that are quickly monopolizing the industry. In addition, international investment must target domestic battery plants, lithium iron phosphate substitutes, and efficient cobalt recycling schemes. The failure of the Congolese government to provide ethical economic opportunities to the Congolese people must also be noted, and international aid agencies working in-country should support diverse economies.

One community leader noted, “Never have people of the Congo benefited from the mines of Congo. We only become poorer”[19]. Without strengthening domestic institutions, violence and exploitation will only continue, with the largest burden on the poorest Congolese. Realistically, however, the DRC has a long way to go to hold international actors accountable and establish authority over its territory. International investment must holistically address these issues; the wellbeing of hundreds of thousands of Congolese children depends on it.

1. Victoria Audu, The Back End of Genocide: How the Rush for Congo’s Cobalt is Killing Thousands, THE REPUBLIC (November 19, 2023), https://republic.com.ng/october-november-2023/congo-cobalt-genocide/?mc_cid=43f1099cf0&mc_eid=71fabbd389&utm_source=substack&utm_medium=email.
2.  Id.
3. Andy Home, Cobalt, Congo and a Mass Artisanal Mining Experiment, REUTERS (May 31, 2021), https://www.reuters.com/business/energy/cobalt-congo-mass-artisanal-mining-experiment-andy-home-2021-05-13/.
4. John Campbell, Why Cobalt Mining in the DRC Needs Urgent Attention, COUNCIL ON FOREIGN RELATIONS (October 29, 2020), https://www.cfr.org/blog/why-cobalt-mining-drc-needs-urgent-attention.
5. Michael Posner, To Meet Global Cobalt Demand, Companies Must Reform Mining Practices in the Congo, FORBES (February 9, 2023), https://www.forbes.com/sites/michaelposner/2023/02/09/as-demand-soars-for-cobalt-used-in-electric-car-batteries-heres-what-companies-need-to-do-in-the-democratic-republic-of-congo/?sh=50e84aab6471.
6. Home, supra note 3.
7. UNICEF, DR Congo: Children Killed, Injured, Abducted, and Face Sexual Violence in Conflict at Record Levels for Third Consecutive Year, (September 28, 2023), https://www.unicef.org/press-releases/dr-congo-children-killed-injured-abducted-and-face-sexual-violence-conflict-record.
8. Democratic Republic of Congo: “This is what we die for”: Human rights abuses in the Democratic Republic of the Congo power the global trade in cobalt, AMNESTY INTERNATIONAL (January 19, 2016), https://www.amnesty.org/en/documents/afr62/3183/2016/en/.
9.  Id.
10. Minimum Age Convention, 26 June 1973, No. 198 (entered into force 19 June 1976) [ILO].
11. Id.
12. Nicolas Niarchos, The Dark Side of Congo’s Cobalt Rush, THE NEW YORKER (May 24, 2021), https://www.newyorker.com/magazine/2021/05/31/the-dark-side-of-congos-cobalt-rush.
13. Sasha Rose, Cobalt Mining in the DRC, UNA-NCA (November 17, 2021), https://www.unanca.org/our-impact/news/coverage-cobalt-mining.
14. Niarchos, supra note 12.
15. UNICEF, supra note 7.
16. Terry Gross, How ‘Modern-Day Slavery’ in the Congo Powers the Rechargeable Battery Economy, NPR (February 1, 2023), https://www.npr.org/sections/goatsandsoda/2023/02/01/1152893248/red-cobalt-congo-drc-mining-siddharth-kara.
17.  Id.
18.  Id.
19. UNICEF, supra note 7.

The Struggles Facing Women Asylum Seekers

By Allison Zajac

Introduction

Migrating to the United States (U.S.) poses special challenges for the women who undertake the task. Not only do these women face the same dangerous conditions that male migrants face, but they are also frequently the targets of sexual violence. A survey conducted by Amnesty International in 2010 found that approximately “six out of ten Central American migrant women and girls were raped while on the move in Mexico” [1]. Sexual violence is so pervasive that many women have sought to obtain emergency contraception in anticipation of being sexually assaulted, whether for survival or for “payment” for their passage [2]. For women who do successfully make it to the United States, the challenges are far from over. The immigration process is woefully unable to address the specific problems that female migrants face once they arrive [3]. Migrant women who may need obstetric or gynecological care have the added difficulty of locating services and maintaining contact with their physicians [4] or even face continued exposure to dangerous conditions while in the custody of U.S. officials [5].

New York City’s Roosevelt Hotel: Ellis Island 2.0 [6]

For the approximately 100,000 migrants who have arrived in New York City over the last year, Manhattan’s Roosevelt Hotel is a jumping point where service providers make contact [7]. Women migrants in need of prenatal care are referred to The Women’s Health Center at Bellevue Hospital, where the medical staff does their best to treat these women and their babies [8]. The vast majority of these women have had little-to-no prenatal care over the course of their journey to the U.S., which causes major concern for the health of the women and their children [9].

Additionally, many women who were sexually assaulted may have become pregnant from the incident and are re-traumatized by carrying the child of someone who assaulted them [10]. If the patient is under twenty-four weeks pregnant, the patient and their doctors discuss terminating the pregnancy [11]. However, in a post-Roe America, this option is not available to a lot of migrant women in the United States [12]. It is unknown how many women migrants who are sexually assaulted become pregnant, and further, how many are able to, if they choose to, terminate their pregnancies [13]. The United Nations advocates for more research to be done in this area, but most studies on migrants do not address the issues specifically facing women, nor do they capture many demographics that would be helpful in addressing these issues [14].

Despite all of the challenges, about 300 babies have been successfully born to migrant women in New York City over the last year or so [15]. However, some problems remain, such as how to maintain contact with these women – and their babies – when they do not have stable housing or even a way to be contacted [16].

What Happens Next?

The Biden Administration has recently extended Temporary Protected Status (TPS) to certain migrants arriving from Central America: namely, those migrants from El Salvador, Honduras, and Nicaragua [17]. Venezuela is also included in the countries which are currently eligible for Temporary Protected Status, but its application period was not extended by the Department of Homeland Security [18].

TPS is an immigration status granted by United States Citizenship and Immigration Services to certain individuals already in the U.S. who come from countries where conditions in the country prevent the individual from returning safely [19]. Being granted TPS allows an individual to work and live legally in the United States but is not a guarantee that the individual will be allowed to permanently stay [20]. However, applying for or being granted TPS does not preclude someone from obtaining nonimmigrant status or another immigrant benefit or protection [21].

The New York State Department of Labor is launching a program to help connect eligible migrants with jobs in industries facing labor shortages, like food service and health care [22]. This program may also help to address a problem that specifically drives women to migrate from Central and South America to the U.S.: currently, labor shortages in the U.S. align with types of labor that are attractive to women migrants, which serves as an extra incentive to brave the jungles – and face potential sexual assault – to make it to the United States [23]. The sexualized division of labor which exists in most of the world drives women into jobs as domestic and care workers [24]. These two problems may actually be able to collide in a way which may be advantageous to the domestic economy by placing women migrant workers, who often already have experience in areas of the U.S. workforce which are currently understaffed, in positions where they have an opportunity to thrive.  

Conclusion

While they are beneficial, domestic programs like the Biden Administration’s expansion of TPS to certain migrant groups or New York’s programs which help migrants seek jobs and health care can only go so far to tackle the problems facing women migrants. The reality is that much more research needs to be done on the conditions women migrants face as they come to the United States, and the challenges they face once they arrive. While sexual assault is most common while migrant women are traveling to the U.S., the threat does not end once they reach their destination. Many migrant women are assaulted while in the custody of U.S. immigration officials, often by other migrants [25]. More needs to be done to protect these especially vulnerable women who have already been through so much.

[1] Amnesty International, Invisible Victims: Migrants on the Move in Mexico. Amnesty International London, AMNESTY INTERNATIONAL (April 28, 2010).

[2] Id.

[3] UN Women, How migration is a gender equality issue, (2020). https://interactive.unwomen.org/multimedia/explainer/migration/en/index.html.

[4] Jasmine Garsd, Migrant mothers arriving in New York find support, hope – and lots of challenges, NATIONAL PUBLIC RADIO, (October 10, 2023). https://www.npr.org/2023/10/10/1204273159/migrant-mothers-new-york-bellevue-womens-health-pregnancy#:~:text=In%20the%20last%20year%2C%20NYC,mothers%20returning%20with%20their%20newborns.

[5] Amnesty International, supra note 1.

[6] Garsd, supra note 4.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] See Roe v. Wade, 410 U.S. 113 (1973). But see Dobbs v. Jackson Women’s Health, 597 U.S. __ (2022), which overturned Roe and permitted individual states to decide their own restrictions on abortion.

[13] The State of New York allows abortion up to 24 weeks gestation. Center for Reproductive Rights, After Roe Fell: Abortion Laws by State: New York, CENTER FOR REPRODUCTIVE RIGHTS, (2023). https://reproductiverights.org/maps/state/new-york/#:~:text=In%202023%2C%20New%20York%20enacted,York%20access%20abortion%20via%20telemedicine.

[14] UN Women, supra note 3.

[15] Garsd, supra note 4.

[16] Id.

[17] U.S. Citizenship and Immigration Services, Temporary Protected Status, (2023). https://www.uscis.gov/humanitarian/temporary-protected-status.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] New York State, Governor Hochul Announces 18,000 Jobs Available to Asylum Seekers and Migrants as Part of Statewide Initiative to Move Individuals Out of Shelter and Into Independent Living, NEW YORK STATE, (October 2, 2023). https://www.governor.ny.gov/news/governor-hochul-announces-18000-jobs-available-asylum-seekers-and-migrants-part-statewide.

[23] See UN Women, supra note 3.

[24] Id.

[25] Amnesty International, supra note 1.

Ethnic Divisions in the Balkans Create a Serious Crisis for the United States

By Zacheray William Womer

What was Yugoslavia?

The former Yugoslavia is proving to be a failed experiment of foreign intervention, and its current status may have large implications across the world as less powerful populations continue to deal with the post-imperial power vacuum. Yugoslavia was a socialist federation of nations, as the successor state of the Kingdom of Yugoslavia [1]. Within the federation were the modern countries of Slovenia, Croatia, Bosnia and Herzegovina, Serbia, and Montenegro, as well as the autonomous Provinces of Vojvodina and Kosovo [2]. These countries have immense ethnic, theological, and economic divisions between one another [3]. The federation is where the West, East, and Middle East converge. The federation bordered the Soviet Client States of Hungary, Bulgaria, and Romania, was situated quite close to Turkey, and had been invaded many times by its predecessor the Ottoman Empire, while also bordering Italy and Austria [4]. Yugoslavia existed as a proverbial hornet’s nest that could rage at any moment, but was routinely pacified by its strong leader Josip Broz Tito.

Further keeping divisions at bay was the foreign aid plied into the federation by both the United States and the Soviet Union, aid which was provided because Yugoslavia was formally not aligned with the West or East, providing them immense economic benefits, and thus an incentive to stay united [5]. After the death of Tito and the downfall of the Soviet Union, ethnic tensions in Yugoslavia rose just as foreign aid plummeted [6]. This resulted in Slovenia, Croatia, Macedonia, Montenegro, Bosnia and Herzegovina, and the autonomous Kosovo voting overwhelmingly for independence from Yugoslavia [7].

War and peace in Yugoslavia

Upon talks of independence, Serbia utilized the Yugoslav military to wage war against Slovenia, Croatia, Kosovo, and Bosnia, wherein the latter three genocide and ethnic cleansing were committed against Croats, Bosniaks, and the Albanians of Kosovo to advance Serbia’s goal of creating a “greater Serbia.” [8]. Conflict in the region was ended due to a series of foreign interventions and agreements headed by the United States [9]. The most notable is The Dayton Agreement, which created the current issues in Bosnia and Herzegovina [10]. The agreement created a continuing partition of Bosnia and Herzegovina into two states, the Serbia Republika Srpska (“RS”), and the Bosnian-Croat Federation of Bosnia and Herzegovina (“BiH”) [11]. This left the country with two legislatures and three Presidents.

Further exacerbating divisions was the “two schools under one roof” policy of the agreement which created ethnically partitioned schools in Bosnia and Herzegovina [12]. Ironically the United States Supreme Court found such a policy was an egregious violation of human rights in its nation [13]. The Office of the High Representative (“OHR”) remains the most controversial provision of The Dayton Agreement, as it continues to plague the nation’s politics. The High Representative (“HR”), which is the head of the OHR, is an externally appointed figure that can impose legislative authority by adopting its resolutions without the input of the county’s elected leaders and the OHR can remove officials at will [14]. These great powers, wielded by a bureaucrat sent to the Balkans by the West, continue to cause the Serbs, Croats, and Bosniaks alike to demonstrate against the OHR [15].

The end of peace?

In the summer of 2021, the RS and its leader, Milorad Dodik, defied the outgoing HR Valentin Inzko, who imposed a sweeping set of laws requiring citizens not to celebrate, or deny the 1995 Srebrenica massacre [16]. In response, the RS passed laws of the opposite decree [17]. The RS has no power to oppose the OHR, but since the newly appointed Christian Schmidt took the position, they have completely ignored the HR’s existence and the RS is preparing to leave Bosnia and Herzegovina [18].

The Croats and Bosniaks are at odds as well. A dispute over election law and Croatian representation has been waged for some time [19]. On election night the Croats won out as Christian Schmidt modified the election law that night [20]. Now the Croat Democratic Union of Bosnia and Herzegovina (the Croatian ethnic political party representing Croats in BiH known as “HDZ BiH”) can no longer block the forming of a government as they have in the past [21]. The change also elevates the Croat HDZ BiH’s influence in the region in the form of more seats in parliament enraging Bosniaks [22]. Although this move perturbed the Bosniaks, it allowed the BiH to form a government and appoint a President for the first time since 2018 [23].

Russia, Ukraine, and Bosnia and Herzegovenia’s future

While there is established influence from the West in the region, Russia also plays in the sandbox of the Balkans [24]. Russia has no military in the region so rather than using direct force, the Russians support nationalist extremists in Serbia and RS, hoping to upend the western status quo in the Balkans [25]. Russia also leverages its influence over the energy sector in the Balkans to influence political actors [26]. The potential of Balkan nations joining NATO is of great interest to Russia. Russia had previously tried a coup d’etat in Montenegro to prevent them from joining NATO [27]. And after they invaded Ukraine, the Russian Ambassador to Bosnia and Herzegovina, Igor Kalbukhov, made a veiled threat, “Ukraine’s example shows what we expect. Should there be any threat, we will respond.” [28]. In 2023, emboldened by the actions taken by the Russian Federation, RS President, Milorad Dodik, has threatened to leave Bosnia and Herzegovina, has banned the OHR from entering RS, and plans to meet with the leaders of Russia, Hungary, and China this month to discuss the separation of Bosnia and Herzegovina into two ethnic states [29]. If Dodik were to go ahead with what he was threatening, it would present an international crisis. Not simply because a sovereign would be dismantled, but because this would be a crisis as it would pit the United States’s international power directly against the Russian Federation. For RS to leave, they would be defying international authority laid down by the most powerful country in the world, and the United States had shown no sign of flinching. The only reasonable way that Dodik could even hope to succeed would be through the help of the Russian Federation, after all, they refused to approve Christian Schmidt as the new HR, which led Dodik to believe he was illegitimate [30]. This situation should cause all international observers to feel perturbed. WWI started because a Bosnian Serb assassinated a Western monarch in Sarajevo, causing Russia to come to the aid of Serbia and into war with Germany. The only major difference in this potential conflict, the region’s hegemon is not Germany, but the United States.

Reasonable Use of Criminal Law Interpretation- An Example of DUI in China and the U.S.

By Jiahang Ding

I. Introduction

Globally, drunk driving is the biggest risk factor for traffic accidents. For people between the ages of fifteen and twenty-nine in Europe, drunk driving is one of the leading causes of death. [1] According to statistics from the U.S. National Highway Traffic Safety Administration, driving under the influence (DUI) -related car accidents cause about $37 billion in damages each year. [2] According to Chinese official statistics, in just the first half of 2019, there were 1,525 fatal traffic accidents in China due to DUIs, resulting in 1,674 deaths, and 7,512 non-fatal traffic accidents due to DUIs. So, drunk driving-related car accidents are very important to the field of criminal law due to their connection with the protection of personal safety and social public safety.”

II. The legal barriers in criminal law interpretations between China and the U.S.

The main controversy in criminal law interpretations revolves around the principle of legality in crime and punishment. The classic expression of this principle is that acts are not considered criminal and cannot be punished if they are not clearly defined by the law. However, the realization of this wording is based on two assumptions: (1) the law’s provisions are already very clear, with no ambiguity, and the general public can understand the explicit provisions of the Criminal Law, and (2) the law’s provisions are highly perfect, and the entire logical system itself consistent. Based solely on the explicit provisions of relevant legal articles, a fair and reasonable outcome can be achieved for the facts to be applied to the law. For proponents of the omnipotent code theory, this is a self-evident truth. However, through the historical development of human legal civilization, it is known that these two assumptions represent an ideal scenario for describing the law and are challenging to establish in practice due to numerous legal limitations.

Therefore, there is a need for tools that break the limitations of the law, and one of these tools is the principle. Its function is to grant judges discretionary power, thereby narrowing legal loopholes and resolving contradictions.

III. Analysis of the Interpretation of Criminal Law

In U.S. criminal law, the determination of each crime involves three elements: (1) the act (actus reus); (2) the individual’s mental state at the time of the act (mens rea); and (3) the causal relationship between the act and the result. In case law, there are numerous considerations regarding the individuals and their actual circumstances. The principle of legality in criminal law states that “there is no crime without law” and “there is no punishment without law.” The fundamental meaning of this principle is that criminal acts, their types, and elements must be defined in advance by legal provisions. Acts that are not expressly defined as crimes in criminal law cannot result in conviction and punishment. Legal interpretation should be restricted, primarily in two aspects: (1) it should be limited to the definitive meanings specified in legal texts, and (2) it should be constrained by the mainstream understanding of the application of the law. These limitations form a progressive relationship, meaning that in legal concepts, we should first understand them based on their literal meanings.

Furthermore, we should not solely rely on a literal interpretation but also consider the specific context for a comprehensive understanding. [3] Article 11, Paragraph 2 of the Universal Declaration of Human Rights stipulates: “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”

IV. Overcoming Legal Interpretation Issues

Firstly, language itself is inherently ambiguous and vague, leading to uncertainty and diversity in the patterns it expresses. The same sentence, with different punctuation, or even different pauses, can convey completely distinct meanings. Secondly, the ambiguous terms in the law are not necessarily legislative errors but rather reflections of the legislator’s intent. They make “ambiguity” a tool of legislation, enabling a legal provision to adapt to various real-life situations. This is a strategy employed by legislative bodies to cope with unexpected events.

Thirdly, humans differ from machines; anyone’s rationality is limited. Law, as a combination of human rationality, cannot be perfect. Being a human-made creation, it can have deficiencies in legislative technique and might even make errors in value choices. Coupled with the relative certainty of the law and the complexity of real-life situations, the law demands judicial authorities to interpret the law. The judges’ discretionary power acts as a safety net clause, allowing the law to be interpreted broadly to fill in the gaps, and to a certain extent, eliminate the drawbacks inherent in written laws. According to the principles of interpretation, judicial authorities should: (1) if the Criminal law contains explicit provisions, have no right to expand them to situations decided by the legislative body, but the court can interpret the provisions favorably to the defendant in a rough and broad manner; (2) if the Criminal Law is unclear or can be interpreted in certain aspects, judges should deeply understand the true meaning of the law and strive to apply it in those areas; and (3) if there is “doubt” in the law, not obligated to choose the “most favorable restrictive interpretation for the defendant.” The real meaning of the law must be found through general interpretative methods.

Additionally, a crucial role of the law is to maintain social public order, which requires something stable to uphold the order. The stability of the law is its advantage. Modifying legal provisions requires extensive time and careful consideration. The speed of legal modification can never keep up with the pace of social development. Changes in social life will inevitably push the law’s lagging issue to the forefront. Excessive and frequent amendments to the law might not be beneficial since incessant legislative changes contradict the law’s function of maintaining order. If the law itself lacks stability, how can it maintain order?

V. The different determinations of DUI in China and the U.S.

Laws on drunk driving vary from country to country and from region to region, which mainly include three points: (1) different blood alcohol content for recognizing driving; (2) different specific facts for recognizing drunk driving; and (3) different penalties. There are two main aspects to the determination of drunk driving in China: Firstly, in terms of the object of the crime, drunk driving violates the safety of highway transportation as well as the safety of pedestrians, vehicles, and other public facilities, which is usually referred to as “traffic safety”. [4] “Traffic safety” involves the transportation process that puts the lives of many people at risk, including significant health and property concerns. In addition, according to the regulations issued by the General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China titled “Thresholds and Testing for Blood Alcohol andBreath Alcohol Concentration for Vehicle Drivers,” drunk driving refers to the behavior of vehicle drivers with a blood alcohol concentration equal to or greater than20mg/100ml but less than 80mg/100ml. [5] Drinking and driving refers to the driving behavior where the blood alcohol content of the vehicle driver is greater than or equal to 80mg/100ml. It can be seen here that DUI in China only considers alcohol but not other situations such as drug use.

States in the U.S. have different laws regarding drunk driving, and this article is mainly based on the laws of Pennsylvania. According to specific cases, it is not difficult to see, even if there are no personal injury traffic accidents, once the police find that the driver’s alcohol content is higher than the legal standard, the driver will be detained in custody and then sentenced by the criminal judge. The drivers with the lowest alcohol content can be sentenced to one week of imprisonment, while the drivers with the heaviest alcohol content can be sentenced to one year of imprisonment. In Pennsylvania, however, the rules regarding DUI mean that it is illegal to operate a vehicle after consuming alcohol, drugs, or other controlled substances. Driving while intoxicated (DWI) is very similar to DUI. However, DWI simply means that someone is operating a motor vehicle while intoxicated. DUI means that the operator of the vehicle is under the influence of illegal drugs, prescription drugs, or alcohol. DUI is commonly used in Pennsylvania to describe this type of offense, so when charged in this state, the charge may not be DWI. Penalties also vary in Pennsylvania depending on the alcohol
content.

VI. U.S. Controversy in DUI – Actual Physical Control

Reasonable grounds for a DUI offense in the U.S. include: a person is guilty of DUI if he or she operates a vehicle while intoxicated. This includes two things: (1) intoxication and (2) driving or operating a vehicle while intoxicated. The first aspect can be determined by many factors, for example, Missouri police will decide if a person is intoxicated based on a variety of signs of intoxication, including bloodshot eyes, slurred speech, odor of alcohol, difficulty walking, and refusal to take a sobriety test. The criteria for a DUI offense may vary from state to state, but in general, U.S. law defines a DUI as a Blood Alcohol Concentration (BAC), which is a unit of measurement expressed as the amount of alcohol per liter of blood. In most U.S. states, the legal standard for drunk driving is usually: Adults Twenty-one years of age and older: Typically, the legal standard for drunk driving is a BAC of 0.08%. If a driver’s BAC exceeds this standard, he or she is considered to be driving while intoxicated. Minors under the age of Twenty-one: For minors, the legal standard for drunk driving is usually stricter. Many states require that a minor’s BAC cannot exceed 0.02% or 0.00%.

The second point, however, is more difficult to argue; it is not necessary to witness the suspect driving while intoxicated, and circumstantial evidence can be relied upon, but it must be proven by sufficient circumstantial evidence. But what kind of circumstantial evidence can adequately prove that the suspect was driving the vehicle in an intoxicated state is controversial. In many cases, even if the suspect is in the car and the vehicle is not moving, that still does not adequately prove the suspect drove the car in a drunken state.

I conclude that the following are the main types of circumstantial evidence as to whether the suspect was operating the automobile: engine running, vehicle location, and other evidence proving that the defendant was driving the vehicle. Engine running is a prerequisite to the actual physical operation of the vehicle, and vehicle location is what helps us reason when and how the vehicle was moving. When an officer finds an unconscious or sleeping person in a stationary vehicle, the officer has probable cause to believe that the person is operating the vehicle. If the person is seated behind the steering wheel and the keys are in the ignition, that person is considered operating the vehicle. And the engine is running if the person is seated behind the steering wheel, the keys are in the ignition, and the person is operating the vehicle. [6]

The following are examples of relevant case law: Finding the defendant had actual control of the vehicle when found parked in an alley on the way home to pull over with engine running, [7] finding the defendant asleep in a parked car with headlights on and engine running, found the defendant had actual control, [8] when the defendant was found sleeping on side of the highway with three-quarters of his car protruding from the highway, headlights on and engine running, found actual control, [9] finding the defendant in actual control of automobile when found sleeping in his automobile, which at that time was not moving but was parked in the middle of the road. [10] Even if the motorist was found asleep behind the wheel of a moving car, there was no actual control because the car was not removed from the parking lot of the bar where the motorist was intoxicated. [11]

VII. China’s Controversy in DUI – Roads

Similar to DUI in the U.S., the offense of drunk driving does not concern itself with whether or not a person is killed or injured or financial damage occurs; as long as the act of driving while intoxicated occurs, the suspect can be punished. However, compared to the U.S., where the minimum sentence for DUI is one week in jail and the maximum sentence is one year in jail, China’s penalties are lighter, with the maximum sentence being a custodial sentence because other crimes can be punished when a DUI causes a serious danger to public safety. In China, the situation of the crime must meet the following four points: “road,” “driving,” “motor vehicle,” and “drunkenness.”

However, the determination of what qualifies as a “road” leaves a lot more room for interpretation. [12] But with the development of scientific information technology and transportation, there is no way to specifically exclude through the qualification of which places or roads are not the possibility of public access. At present, the concept of “road” is more controversial than the parking lot of drunken dangerous driving behavior, A sampling of China’s adjudication documents network several cases found in the vast majority of cases show that drunk driving in parking lots is still punished. However, a few drunk drivers were exempted from criminal penalties, and analysis of the judgments found that these cases of drunk driving in parking lots without criminal penalties need to meet the following two points: (1) special occasions: special parking lots should not be recognized as “roads;” and (2) specific time: late at night or early in the morning in the parking lot. Due to the scarcity of
people in and out of the parking lot, it does not have the quality of being used for
public transportation. Moving a car for a short distance after being drunk should be the same as the wilderness road, which does not have the abstract danger, and thus is not considered to be the type of drunkenness.

VIII. Conclusion

The fundamental purpose of the offense of drunken driving is to protect personal safety as well as the public safety of society. Nowadays, with the development of highway transportation, we should minimize the occurrence of personal injury and property damage caused by drunken driving. The role of the law is not to focus on the level of punishment, but to act as more of a warning and education. Combined with the U.S. and China for the determination of the crime of drunk driving and penalties, the incriminating aspects of the appropriate expansion of the scope of the road, even in the parking lot for a short period of time should also be recognized as drunk driving. Whether there is drunkenness or actual physical operation, should be examined more strictly, combined with the state of the engine, vehicle location and other circumstances to be analyzed. In principle, drunk driving should not be criminalized for people who do not drive under the influence of alcohol, nor should ordinary people be discouraged from driving under the influence of alcohol.