MJIL Online

MJIL Online brings you timely short-form articles that represent a wide range of views on contemporary issues in international law. The views and opinions expressed in these articles are those of the authors only.


Jose-Ignacio Saldana
Vol. 38 Associate Editor
On the eve of the historic referendum held in the United Kingdom (UK) to decide whether to leave the European Union (EU), Roberto Azevêdo, current Director-General of the World Trade Organization (WTO), discussed the implications that an exit from the EU could have on the UK’s status as a member of the WTO. Mr. Azevêdo highlighted the potential challenges in the need to re-establish trade relationships with the EU Member States and the rest of the countries with which the EU currently has trade agreements. He pointed out that the UK would need to “re-establish its terms of trade with the WTO” after its exit from the EU. [1] A number of issues arise out of this scenario, including whether it could be possible for the UK to obtain a realistic projection of its future membership status within the WTO before leaving the EU, and decide whether to halt “Brexit” in view of these considerations, if possible.

Despite the turmoil caused by “Brexit” and the number of talks currently taking place between EU Member States,[2] nothing has actually happened—legally speaking. Article 50 of the Lisbon Treaty provides that “[a]ny Member State may decide to withdraw from the

Katrina Fetsch
Vol. 38 Associate Editor
In recent weeks, a normally peaceable state has found itself rife with conflict as protests erupted over the construction of the Dakota Access Pipeline (DAPL) in North Dakota. The opposition began with the Standing Rock Sioux Tribe, who opposed the pipeline on the grounds that its construction would result (and indeed has resulted) in the destruction of important historical and cultural artifacts, including ancestral graves, and that the pipeline’s proximity to the area’s water source poses a grave threat to the tribe’s drinking water. The controversy has grown into a human rights movement of historic proportions with thousands of supporters traveling from across the country to Cannon Ball, North Dakota, to join the cause.[1] Recent involvement of the United Nations Human Rights Council showed the issue reach an international platform, yet it remains to be seen if the Tribal Chairman’s trip to Geneva will have any impact on the situation in the United States or if recourse for the tribe in international forums will be effective.

The DAPL comes on the tail end of the recent oil boom in the Bakken oil fields of western North Dakota. The pipeline, built by Dallas-based Energy Transfer Partners, would extend

Stephanie Zable
Vol. 38 Associate Editor
On October 17th, a hospital in Mirebalais, Haiti accepted a patient with cholera. By October 22nd cholera was well-established along the Haitian coast,[1] and a Haitian laboratory had confirmed Haiti’s first case of cholera in over a century.[2] In the six years since, the death toll of the Haitian cholera epidemic has reached at least 9,200, though reports indicate it could be much higher.[3] Some suggest that the reason for the rapid spread and high death toll is that Haitians had no immunity to cholera, as it had never before been seen in Haiti.[4] The disease was introduced into the country by Nepalese peacekeepers working at a base for the United Nations Stabilization Mission for Haiti (MINUSTAH). The base, located only two kilometers from the first reported cases, dumped untreated sewage into the nearby river, which fed into one of Haiti's main water supplies.[5] The humanitarian crisis caused by the rapid spread of the cholera was thus directly attributable to the UN presence.

The UN, however, has not been contrite. Even after the epidemic was tied directly to the peacekeepers and a Nepalese strain of the cholera virus, the UN insisted that the epidemic was largely due

Andrew Fletcher
Vol. 38 Associate Editor
There has recently been speculation by security experts and the Democratic Party that the Russian Government is using cyber-attacks to influence this year’s presidential election in the United States.[1] If true, the Russian Government could have the ability to shape America’s politics, while destabilizing its internal democratic system. Because of the threat that a cyber-attack potentially poses to a state’s democratic processes it is important to examine whether such an action is in violation of international law or norms and what, if anything, international law can do about it.

In July of 2016, the Democratic National Committee’s computer network was hacked and thousands of emails were released. The emails contained many embarrassing revelations, such as a concerted effort to undermine the candidacy of Bernie Sanders in the Democratic primary election, leading to the resignation of the Chair of the Democratic National Committee. Many security experts believe that the Russian Government was behind the hack, and the FBI has reportedly been working on building a case against Russia.[2]

There has since been rumors and speculation that the Russian Government could hack the voting systems in the United States to disrupt or determine the election results.[3]

International law is clear on

James C. Hathaway
Special Feature Seventh Colloquium on Challenges in International Refugee Law

James C. Hathaway 
The Michigan Guidelines on Risk for Reasons of Political Opinion

Catherine Dauvergne

Toward a New Framework for Understanding Political Opinion
Sharon Bassan
Shared Responsibility Regulation Model for Cross-Border Reproductive Transactions

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Category: Volume 37
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S.I. Strong
Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy

Charles W. Mooney, Jr. 
A Framework for a Formal Sovereign Debt Restructuring Mechanism: The Kiss Principle (Keep It Simple, Stupid) and Other Guiding Principles

Odysseas G. Repousis
On Territoriality and International Investment Law: Applying China's Investment Treaties to Hong Kong and Macao
Jesse W. Stricklan
Testing Constitutional Pluralism in Strasbourg: Responding to Russia's "Gay Propaganda" Law

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Category: Volume 37
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Christopher Balch
Vol. 37 Associate Editor
Although only the tip of the iceberg of a much larger problem, the rise of global sea levels may present novel legal issues for hotly contested territorial disputes in the Arctic Ocean.

According to the National Oceanic and Atmospheric Administration of the United States Department of Commerce, global sea levels have risen at a rate of .12 inches per year primarily due to thermal expansion caused by the warming of oceans and the loss of land-based ice due to increased melting.[1] The National Snow & Ice Data Center reports that March 24, 2016 will likely be the maximum extent of Artic Sea ice for the entire year and will thus represent the lowest maximum ever recorded.[2] NASA satellite photograph analysis illustrates that polar ice caps are melting at a rate of 9% every 10 years[3] and some scientists predict that the polar ice caps might completely melt as soon as 2040.[4] Conservative estimates predict that oceans will rise between 2.5 feet and 6.5 feet by 2100 and more bleak estimates include the melting of the Greenland ice sheet, which would push sea level rise to 23 feet, enough to submerge London, New York, and other major world

Tania Morris Diaz
Vol. 37 Associate Editor
Ordinarily, the term ‘reprisal’ is used to refer to a State’s deliberate violation of international law as retribution directed at another State for breaking international law.[1] However, in the lesser-known context of international human rights law, reprisals are measures taken with “the intent to deter or punish individuals who have opposed legislative or policy framework adopted by public authorities.”[2] The difference is that reprisals in the international law context operate horizontally among States, while reprisals in the international human rights law context operate vertically among various actors. Essentially, reprisals occur when “a state violates international law norms if it commits an act of violence against, or intimidates, or curtails the rights” of an individual. A state also violates international law norm if it fails to act in a way that contributes to a “climate of impunity and arbitrariness.”[3]

The ambiguity of the term ‘reprisals’ garners some criticism, however. It invites the assumption that such a retaliatory act is in response to unlawful behavior and thereby legitimizes the sanctions whilst accepting authorities’ denial of judicial guarantees.[4] Reprisals, by their nature, are crosscutting of a range of rights. They involve interactions among State and non-state actors, individuals and

Michael Pucci
Vol. 37 Associate Editor
In his 2009 article in Foreign Policy, Moisés Naím popularizes the concept of minilateralism, a type of multilateralism that “bring[s] to the table the smallest possible number of countries needed to have the largest possible impact on solving a particular problem."[1] Instead of relying on the post-WWII global institutions, many of which have become paralyzed because of their failure to adapt to changing power dynamics and requirement for world-wide consensus, minilateral organizations offer states an alternative type of international organization which is more limited in membership and scope.[2] In the domain of combatting terrorism, these organizations are particularly useful because they create soft law, incentivizing states to collaborate but not creating legal obligations.

One such minilateral organization is the Financial Action Task Force (FATF), an organization under the umbrage of the Organization for Economic Cooperation and Development whose “original mandate was to explore ways in which states and intergovernmental organizations could deter, prevent and halt money laundering.”[3] This mandate was expanded to include terrorist financing after the 9-11 terrorist attacks in the United States.[4]

Comprised of thirty-four nations and two regional organizations, FATF primarily acts by publishing recommendations, called the “FATF Recommendations” and which now number forty, that

Daniel Mooney
Vol. 37 Associate Editor
Reports indicate that United States and Cuban officials and Major League Baseball have been holding private meetings in the past months to figure out a way to allow Cuban baseball players to come to the United States legally to play in the MLB.[1] These talks are the latest in a string of attempts by the Obama administration to warm relations with Cuba.[2] These attempts will culminate in late March when President Obama will become the first U.S president to visit Cuba since 1928. The president, while in Cuba, will attend an exhibition game in Havana featuring the Cuban National team and the Tampa Bay Rays.[3]

Over 200 Cuban baseball players have defected from their home country to play professional baseball. Cubans are subjected to more complex MLB rules than other baseball players for several reasons. First, Cubans are forced to defect from Cuba to play professional baseball.[4] The MLB bars “the discussion or negotiation with anyone in Cuba regarding the signing of any player in Cuba.”[5] Ergo, no scouts or team representatives can contact any Cuban player while they are in Cuba. This policy essentially forces Cubans who have MLB aspirations to abandon their home and establish

Cole Lussier
Vol. 37 Associate Editor
Domestic conflict in a small Central African country is once again leading the international community to reflect on its willingness to ensure human security and republican government in a nation long marred by violence and instability. Since April 2015, the Republic of Burundi has teetered on the brink of civil war, prompting concerns of possible ethnic cleansing and genocide.[1] With the memories of neighboring Rwanda’s genocide still weighing on the global conscience, the killings in Burundi have once again raised serious questions regarding the sanctity of state sovereignty and the moral urge to protect human life and democratic government.[2] 

Civil unrest erupted in Burundi in April 2015, following the announcement that President Pierre Nkurunziza would seek a third term in power.[3] To opposition members, this clearly violated the Burundi constitutional provision limiting a president to only two terms in office.[4] Yet, Nkurunziza’s supporters argued that this limit had not been reached because the president had been elected by the legislature for his first term in office, rather than the electorate-at-large.[5]

The ensuing dispute over domestic constitutional law was ultimately decided by the Supreme Court of Burundi, which among allegations of threats and the dissenting justice fleeing the country,

Jacob Greenberg
Vol. 37 Associate Editor
At the stroke of midnight on March 20, 2016, Greece began the process of designating all migrants arriving by boat for return to Turkey.[1] This major milestone in the refugee/migrant crisis was the product of deal struck by the European Union (EU) and Turkey just days earlier. Turkey agreed to receive and process all migrants arriving by boat in Greece. It will also sort those refugees fleeing war from other migrants.[2] The EU, in addition to paying to send the migrants to Turkey, has agreed to several other concessions. For each migrant the EU sends Turkey, the EU will resettle one vetted Syrian refugee. The EU will also send Turkey 3 billion Euros on top of the 3 billion it has already pledged to help it deal with the crisis, grant visa-free travel for Turks in Europe, and accelerate negotiations over Turkish accession to the EU.[3] 

Some analysts like The Economist are cautiously optimistic. Of the estimated 1.2 million migrants who entered Europe in the past year, most came through Turkey.[4] This plan both standardizes a system that badly needs organization and helps mitigate the incentive to illegally migrate to Europe.[5] Potential migrants will presumably be less

Christian Husby
Vol. 37 Associate Editor
On February 23, 2016, Tsinghua Unisplendour Corporation of China abandoned its attempted $3.78 billion purchase of a 15% stake in Western Digital, an American computer data storage company.[1] Tsinghua didn’t abandon the deal because it lost interest in the deal, and it wasn’t because it couldn’t get the financing; it was because of a decision by the Committee on Foreign Investment (“CFIUS”) to review the prospective deal.[2]

What is this committee that can scare off multi-billion dollar deals just with a threat of review? The CFIUS was organized in 1975 and charged with the duty of “monitoring the impact of foreign investment in the United States.”[3] At first, CFIUS’s powers were limited to requesting foreign governments to file reports about their foreign investment activities and to monitor investments.[4] This changed in the late 1980’s at a time of great fear in America about Japan’s economic rise.[5]

In 1987, Fujitsu, a Japanese informational tech company, proposed to purchase an 80% stake in Fairchild Semiconductor, a U.S.-based company, for over $200 million, but the deal was ultimately called off due to heavy pressures from the U.S. government.[6] Following this, in 1988, Congress passed the Exon-Florio Amendment. Exon-Florio responded to the

Angela Ni
Vol. 37 Associate Editor
Vol. 38 Managing Note Editor
Free speech and separation of political spheres in China have always been tenuous. Publishing houses and bookshops in Hong Kong have spent years churning out books banned on the Chinese mainland, often focusing on poorly sourced secrets and rumors about the top echelons of China's ruling Communist Party.[1] However, the recent arrest of five Hong Kong citizens, who published books that revealed critical and salacious information regarding the Chinese leadership, ignited citywide protests and debates about Hong Kong’s true political status.[2] One of the booksellers, Lee Bo, disappeared from his warehouse in December 2015 when his publishing company was to publish a book on Chinese president Xi Jinping's alleged love affairs before his political ascent.[3]

Since the United Kingdom handed over sovereignty of Hong Kong to China in 1997, the “one-country, two-systems” regime has consistently come into political and legal controversy. Hong Kong has markedly disparate laws from China, which is the result of a 50-year compact between China and the UK, which administered Hong Kong before the handover, known as Basic Law.[4] Under Basic Law, Chinese legal authorities have no jurisdiction in the city.[5] Furthermore, it guarantees rights such as freedoms of

Sihang Zhang
Vol. 37 Associate Editor
About a week ago, Britain's Prime Minister David Cameron announced June 23rd as the date for a referendum on the country’s membership to the European Union.[1] On that date, the British people will make their most important decision for the future of their country. The influence of the vote will spread deep and far outside of the country, with serious global economic impact.[2]

While the advocacy of Brexit—Britain departing from the European Union—has been expressed for several years, the prospect has been increasing in popularity. Today, largely thanks to Europe’s migration crisis and financial crisis around the euro, the poll shows Brexit is not a mere theoretical idea, but a real possibility, with some surveys even finding a majority of voters wanting to exit the EU.[3]

While David Cameron, together with his top ministers and Britain’s largest businesses clearly desire to remain in the EU (arguing that Britain should remain in order to retain its position and rule-setting influence in the EU and mitigate negative repercussions from other members by renegotiation with EU[4]) Vote-For-Leave side also enjoys prominent supporters including the justice secretary, Michael Gove, and London's mayor Boris Johnson, who has alleged that David Cameron has

Katherine McGuigan
Vol. 37 Associate Editor
Vol. 38 Business and Development Editor
On February 1, 2016, the World Health Organization declared a Public Health Emergency in response to the Zika virus outbreak.[1] While the WHO does great work to monitor and control many international health concerns, lately it has drawn criticism for its lackluster response to crises. These criticisms were particularly acute regarding the Ebola outbreak. Many believe that if the WHO had taken action right when the outbreak was first reported, hundreds of lives could have been saved.[2] The Zika virus presents an opportunity for the WHO to learn from the mistakes it made dealing with the Ebola outbreak so that it may more effectively combat this latest international health crisis.

Zika is a disease that transmitted by mosquitos. People infected with the virus generally suffer from a mild fever, skin rashes, joint pain, and a headache for a period of two to seven days.[3] While these symptoms are relatively minor, the disease has risen to the level of international concern because of its apparent correlation with microcephaly—a condition when a baby is born with a significantly smaller head and brain.[4] The number of babies born with this syndrome has dramatically increased in the

Virginia Koeppl
Vol. 37 Associate Editor
Vol. 38 Article Editor
On December 26, 2015, China sent three armed vessels, one of them designed to carry four cannons, into Japan’s territorial waters surrounding the Senkaku Islands in the southern part of the East China Sea.[1] This is the first time that the People’s Republic of China has sent armed vessels into waters claimed by Japan.[2]

The sending of these three vessels signals a new phase of incursions intended to expand China’s control over the Senkaku Islands, and possibly the Ryukyu Islands.  The Senkaku group consists of eight uninhabited islands, with a total land area of less than seven square kilometers which lie roughly 120 nautical miles northeast of Taiwan, 200 nautical miles east of mainland China, and 240 nautical miles southwest of Japanese Okinawa.[3] Despite their size, these islands are of immense economic and strategic importance.[4]

Under the international law of the sea, control of the Senkakus may convey exclusive economic rights to nearly 20,000 square nautical miles of undersea resources.[5] Art. 76(4)(a) of the Convention on the Law of the Sea declares that “[f]or the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond

Ashley Harshaw, Vol. 37 Associate Editor
Following North Korea’s long-range rocket launch on February 7, 2016, South Korea and the United States are urging for strong sanctions against the Kim Jong-un regime. But, it is unclear what kinds of sanctions will be effective in influencing North Korea’s behavior. The successful functioning of the rule of international law depends on the consent of states. Since North Korea seeks to remove itself from the limitations of international legal norms, what is the legal framework in which other countries may retaliate against North Korea?

South Korea and the U.S. maintain that North Korea’s rocket launch violated international law, as set out in various United Nations Security Council resolutions banning North Korea from rocket launches using ballistic missile technology.[1] North Korea insists that the launch was merely a satellite for peaceful purposes.[2]

A series of retaliatory actions has already taken place between the rival Koreas and the U.S. Shortly after the February 7 launch, South Korea suspended operations at the Kaesong industrial zone, a jointly run factory park located in North Korea, as punishment.[3] In retaliation, North Korea expelled all South Korean workers from Kaesong, froze the assets of South Korean firms, and put the area under military

Christine Prorok
Vol. 37 Associate Editor
Vol. 38 Online Content Editor
In a world where information posted to the Internet is so widely available and difficult to control, data privacy can seem out of reach. However, a right that was recently recognized in the European Union has attempted to push back on the notion that once information has been posted online, it is lost into the void. “The right to be forgotten” is the right of Europeans to request information be removed from a search engine when that information is “inadequate, irrelevant or no longer relevant, or excessive in relation to [the purposes for which it was processed or collected] and in the light of the time that has elapsed.”[1] The Court of Justice of the European Union (CJEU) established this right and emphasized the need for sensitivity for the data subject’s private life.[2] The search engine implicated in this case was Google, an American-based company. However, that did not prevent the court from ordering the removal of the link in question, because Google Spain processed the information.[3]

This judicial decision left many questioning the status of freedom of expression and access to information.[4] With a new European data protection law on the horizon,

Corina McIntyre, Vol. 37 Associate Editor
In October 2015, the European Court of Justice (“ECJ”) struck down the U.S.-E.U. transatlantic “Safe Harbor” pact used by thousands of companies to transfer European citizens’ data to the U.S. For 15 years the Safe Harbor pact had “allowed more than 4,000 companies to avoid cumbersome E.U. data transfer rules by stating that they complied with E.U. data protection law.”[1] The E.U. argued that the pact “exposed Europeans to mass surveillance by the U.S. government” and failed to provide necessary privacy guarantees.[2] The ECJ held that the pact violated Europeans’ privacy rights and that E.U. member states can consequently override the pact.

The decision affected an estimated 4,500 companies that store customers’ personal data. The practical consequences of the ruling were predicted to initiate a costly effort by companies to preserve their ability to “transfer Europeans’ personal data to the U.S. before regulators move[d] in with fines or orders to suspend data flows.”[3] And the economic ramifications are hardly insignificant. In addition to storing human resource type documents, the data was used in the online advertising business to the tune of billions of dollars in trade.[4]

Since the decision, E.U. and U.S. regulators have been in negotiations

Sung "Chris" Lee
Vol. 37 Associate Editor
Vol. 38 Online Content Editor
Low steel prices have been driven by Chinese steel glut: China is dumping steel globally to get rid of the massive excess supply. As China shifts away from growth driven by the manufacturing industry, it is flooding the worldwide steel market with its excess capacity. China plans to cut some of the excess capacity by 100 to 150 million tons as part of an effort to restructure its economy, but it did not specify the deadline.[1] 

The steel industry is in a state of turmoil, as steel manufacturers continue to bleed with losses. And among them, European manufacturers—including ArcelorMittal and Tata Steel—have taken the biggest hit. With steel sectors in European countries, including the UK, at the brink of collapse, steel manufacturers are now pleading for a tariff on Chinese steel imports.

But so far, the response from various European governments have been meek. Europe has imposed 13% tariffs on Chinese imports as a remedial measure, but this is criticized as a toothless measure.[2] The proposed tariff on Chinese steel imports have similarly been condemned as a “slap in the face” for the UK steel industry.[3] On February 8th 2016, Ministers from France,

Alicia McCaffrey
Vol. 37 Associate Editor
Vol. 38 Note Editor
Many law students are familiar with the Argentina bonds arbitrations because of their popularity in Transnational Law classes. These Argentina bonds arbitrations are one example of a genre of cases debating the legality of strict government regulations. These scenarios generally involve a government wanting to place fairly extreme regulations on a multinational corporation in order to reach some sort of public policy goal, and a multinational corporation that argues the regulations are so extreme as to be practically expropriating its business or violating the “fair and equitable treatment” provisions in the countries’ bilateral investment treaty (BIT). A new set of these kinds of cases has emerged recently as multinational corporations, together with the countries in which they are headquartered, challenge the Australian government’s “plain packaging” requirements for cigarettes.

In 2010 Australia committed to implementing strict packaging requirements for cigarette packaging by 2012.1 The packaging, commonly referred to as “plain packaging,” mandates that cigarette packages display large images and warnings about the health effects of smoking. Only the name of the brand is displayed in small, plain text at the bottom of the package. Britain and Ireland have similar regulations.[i]

The first arbitration regarding the validity

Forthcoming Author in the Press: S.I. Strong
Volume 37 Issue 1 of the Michigan Journal of International Law is nearing publication, and one of our authors has been discussing the topic of her article.

Kluwer Arbitration Blog recently published a piece written by MJIL author S.I. Strong that previews her forthcoming article on international commercial arbitration.

Professor Strong writes that, while a "reasoned" or "fully reasoned" award is required by the agreements that govern international commercial arbitration, there is relatively little scholarship as to why this requirement is necessary or what this would even look like in a legal regime that includes elements of both common and civil law.

Professor Strong's forthcoming article in Volume 37 will fully unpack the reasoned award requirement, how to write such an award, and provide key comparative insights between common law and civil law legal systems in this arena. In the interim, Professor Strong's paper is available here.

Joon Yoo
Vol. 37 Associate Editor
Vol. 38 Executive Editor
Across the United States, the recent trend among many wealthy foreigners interested in luxury U.S. real estate is the use of limited liability companies, or LLCs, in purchasing high-end properties in total secrecy and anonymity. For the last several years, “nearly half the residential purchases of over $5 million were made by shell companies rather than named people”[1] and in 2014, over 80 percent of the units of a landmark luxury property in New York City were sold to shell companies.[2] In terms of dollar amount, roughly “$8 billion is spent each year for New York City residences that cost more than $5 million each.”[3]

The problem with allowing shell companies like LLCs to purchase real property without requiring them to disclose any names of individuals is that foreign money involving illicit gains or sources can be safely hidden from the reach of official investigations and scrutiny of other countries. While today’s federal banking guidelines instruct banks to make reasonable efforts to avoid giving aid to those who try to move corruption money, there is no identical guideline or legal obligation imposed on transactions involving foreign money coming into the U.S. via shall companies

Christina Foster, Vol. 37 Associate Editor
North Korea, the self-declared nuclear state, claims to have successfully tested a hydrogen bomb.[1] The testing occurred at 10:00am local time on January 5, 2016[2] and is one of several experiments carried out by leader Kim Jong-Un and the late Kim Jong-Ilin what is becoming a routine violation of international law. Last May, U.S. Secretary of State John Kerry accused North Korea of “flagrant disregard for international law,”[3] and the country is clearly showing no signs of letting up. While the United Nations Security Council has adopted several resolutions which impose sanctions on North Korea, these resolutions are merely soft laws that lack teeth. Even more problematic are the conflicting international policies and wavering stances of powerful nations, such as China and the United States. To achieve the objectives of the resolutions that target North Korea’s nuclear program, the leading countries of the world need to effect stricter sanctions and follow through as a united front.

While North Korea’s nuclear proliferation is just one of many international concerns that the United States and its allies currently face, in Pyongyang, developing a nuclear program has long been at the forefront of the government’s ambitions.[4] To North Korea,

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