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Muhammad Mustafa Arif is a final-year LL.B. (Hons) candidate at Pakistan College of Law (University of London). He is a regular columnist for The News International and The Friday Times , and has contributed legal commentary and opinion pieces to LEAP Pakistan. Demonstrating a strong commitment to legal research and writing, he has interned at leading law firms including Awais Law DRT, Bhandari Naqvi Riaz, and Raja Muhammad Akram & Co. Photo By Emad El Byed The rapid development and deployment of autonomous weapons with Artificial Intelligence (AI) represent a great innovation in contemporary warfare. These weapons can recognize and attack targets independently upon activation, without further human intervention, as illustrated by the United States Department of Defense . Often portrayed as drones or robots, they represent a profound shift in warfare . Neil Davison, a senior scientific and policy adviser with the International Committee of the Red Cross (ICRC) , emphasized, “Autonomous weapons are not a product of science fiction in a far-off dystopian future. They are an immediate humanitarian concern and need an urgent, international political response.”   This problem is particularly salient in Gaza, where the Israel Defense Forces (IDF) have deployed AI-targeting systems, raising grave legal, ethical, and humanitarian issues. The deployment of devices such as “Lavender” and “Gospel” has underlined the need for universal international regulation to protect civilians and comply with International Humanitarian Law (IHL).   Deployment of AI in Gaza   AI-powered autonomous weaponry has become a key player in modern warfare, raising serious ethical concerns. Israel has extensively incorporated AI into warfare, often using the Gaza Strip to develop and refine advanced military technologies before exporting them globally .   Israel has developed AI-based programs called “ Lavender ,” “ Gospel ,” and “ Where’s Daddy ? ,” which have played a critical role in identifying assassination targets.   Lavender is the most prominent AI-powered targeting system used by the IDF. It is designed to identify individuals associated with militant activities . It has been reported that, in the initial stages of the conflict, Lavender allegedly labeled 37,000 Palestinians as threat s . Further reports have indicated that the use of Lavender has contributed to thousands of civilian casualties .   Gospel is used primarily by the IDF to target buildings and infrastructure believed to be linked to militant groups. It assists the IDF in determining airstrike targets by analyzing intelligence inputs, satellite imagery, and intercepted communications. Reports suggest Gospel was involved in numerous strikes and contributed to significant casualties , though the exact number remains uncertain.   Where’s Daddy assists the IDF in monitoring individuals designated as high-priority targets . The system tracks the movements of such targets and notifies the forces when they reach home , increasing the likelihood of targeted strikes. According to reports from various platforms, the use of this tool has resulted in thousands of deaths, as it facilitates targeted killings that have often resulted in the deaths of family members and non-combatants in the vicinity.   In the ongoing conflict, Israel has heavily relied on AI to make life-or-death targeting decisions with minimal human involvement. It is pertinent to note that AI does not directly make decisions or cause the devastating events unfolding in Gaza. However, it heavily influences human decision-making due to cognitive bias. A key example is “ automation bias ,” where people overly trust machine-generated outputs and neglect to question or verify them, especially under time constraints. Similar to how ChatGPT cautions users that the system can make mistakes and they should double-check information, such caution is crucial in armed conflicts, as per the cardinal principle of distinction under IHL, which requires parties to an armed conflict to distinguish between civilian and military objects at all times. Over-reliance on AI tools in warfare without critical human oversight can lead to disastrous outcomes, including the unintended loss of civilian lives. This misplaced trust in AI magnifies risks and blurs the line between human judgment and machine error in critical situations.   Ethical Dilemmas :   AI has the potential to enhance nearly all aspects of military operations, from ‘strategic’ planning and troop deployment to personnel training. AI can optimize various warfare systems—including weapons, sensors, navigation, aviation support, and surveillance—by increasing operational efficiency and reducing reliance on human intervention. However, these systems must adhere to best practices and align with their specific functions.   Productivity : The United States , being the global leader in AI evolution, recognizes that war places immense physical and mental strain on soldiers, leading to fatigue and adverse medical conditions such as Post Traumatic Stress Disorder (PTSD) that can hinder focus, performance, and decision-making . This fatigue increases the risk of human error , potentially jeopardizing mission success and resulting in injuries or defeat.   AI, however, offers a solution by allowing soldiers to conserve their energy and allocate their time more efficiently, reducing the burden on them and improving overall effectiveness in the field. AI enhances decision-making by enabling more accurate data analysis, which improves targeting and reduces errors. Automated systems allow for quick decisions in combat, thereby minimizing mistakes. Drones and AI help identify and communicate potential threats , offering greater precision in detecting distant objects and providing a strategic advantage in preparing for attacks.   Over-Reliance : Lavender and Gospel utilize machine learning to differentiate between military targets, civilians, and civilian structures. However, if decision-makers act on their own without adequate scrutiny or supplementary information—an issue that has been reported —this could lead to attacks that harm the civilian population present. Typically, there is a “ human in the loop ” who reviews and approves or rejects AI recommendations. However, Israeli soldiers often treat these AI outputs as if they were human decisions, spending as little as twenty seconds reviewing a target before launching a strike. Army leadership reportedly encourages automatic approval of Lavender’s kill list, assuming its accuracy, even though Lavender has a minimum estimated error rate of 10% .   Guidelines for preventing civilian casualties emphasize patience in observation, as deliberate analysis leads to more informed decisions on lethal and non-lethal actions. Slowing decision-making is crucial in complex, high-stakes environments where rushed judgments obscure critical nuances. Military planning gives commanders time to assess the operational landscape, considering enemy forces, allies, civilians, and potential risks . As General Dwight D. Eisenhower observed, “ plans are useless, but planning is indispensable , ” emphasizing the value of thorough preparation in navigating unpredictable conflict scenarios.   Intersection of AI and International Humanitarian Law :   In addition to AI systems, Israel has also been deploying Lethal Autonomous Weapon Systems (LAWS) and Semi-Autonomous Weapons (Semi-LAWS) in the ongoing conflict. There is currently no universally agreed-upon definition of LAWS under international law, though some advancements have been made toward establishing one . Broadly, LAWS refer to weapons that, once deployed, can independently identify and engage targets without human input . The IDF has established the use of remote-controlled quadcopters , equipped with machine guns and missiles, to “ surveil, terrorize, and kill ” civilians sheltering in tents, schools, hospitals, and residential areas. Those in the Nuseirat Refugee Camp in Gaza have reported that Israeli drones often broadcast sounds of crying babies and women to deceive the residents and draw them out to areas where they can more easily be targeted.   Under IHL, the IDF is obligated to adhere to the principles of Jus in Bello with distinction , proportionality , and precaution in attacks . The principle of distinction requires belligerents to distinguish between military objectives and civilian objects and between combatants and civilians (Article 48 of Additional Protocol (AP) I to the Geneva Conventions (GC)). The principle of proportionality requires that an attack should not result in excessive civilian harm compared to the anticipated military advantage ( Article 51(5)(b) of AP I ). The principle of precautions in attack ( Article 57 of AP I ) requires armed forces to ensure that a target is a legitimate military objective and to suspend or seek delay with an attack if it becomes apparent that what they aim to do violates IHL. These requirements, through Customary International Law, are binding, whether human commanders or AI-Based systems make decisions, as responsibilities under IHL always rests with human operators and states .   The application of AI-based decision support systems since October 7th has claimed the lives of approximately 37,000 Palestinians , of whom many were civilians and children. The ICRC has pointed out that decisions on targets taken with the assistance of AI could result in civilian-military misidentification, which would violate the rule of distinction. Micheal Schmitt and Jeffrey Thurnher discuss the challenges of following principles of IHL by decision makers when deploying autonomous weapon systems. They note that reliance on AI for decision-making undermines proportionality , as current AI frameworks cannot generate well-informed human judgment concerning military gain at the expense of civilians. Failure to mitigate these dangers would render such AI-aided attacks illegal under IHL.   To clarify the potential dangers of AI-based military operations, the regulation of autonomous vehicles is a good analogy. Most jurisdictions forbid the use of fully autonomous driving systems on account of a 10% accident rate , deemed too high to ensure the safety of civilians. In the same vein, AI-targeting systems bear a 10% error rate , which provokes legitimate doubts about their ability to distinguish between military and civilian targets. Such an error rate significantly undermines respect for the principle of proportionality formulated in international law. In armed conflict, where decisions have long-term implications and the stakes involve matters of life and death, such errors lead to war crimes as formulated in the Rome Statute of the International Criminal Court .   Autonomous weapons systems (AWS) are not regulated directly by current IHL treaties , although their employment remains subject to general principles of IHL, notably through the Martens Clause . Codified in Article 1(2) of AP I and the preamble to AP II , the Clause provides that in situations not regulated by specific law, civilians and combatants continue to be under the protection of “the principles of humanity and the dictates of public conscience .” These principles include , for example, the obligation to protect civilians from direct attack, prohibition of weapons causing unnecessary suffering, and the requirement to respect human dignity, which is challenged when machines are delegated autonomous decision-making without human oversight. Its purpose, confirmed by the International Court of Justice (ICJ) in its Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1996) , is to establish a normative floor where legal loopholes are absent.   This norm applies to AWS, which—unlike human combatants—lacks the capacity for moral judgment, situational empathy, or discretion in applying rules like proportionality and distinction. Autonomous weapons can potentially violate the Martens Clause, since autonomous weapons struggle to comply with principles of distinction and proportionality. The ICRC Commentary points out that the Martens Clause is appealing to “ elementary considerations of humanity ” when treaty law is ambiguous. These are precisely the considerations threatened by AWS: their reliance on algorithms based on incomplete or biased data risks arbitrary targeting, civilian casualties, and decision-making untethered from ethical accountability. Thus, whether AWS is lawful under IHL is not an issue of whether they are automatically forbidden, but whether their use undermines the humanitarian safeguards IHL intended to uphold. The Clause acts as a normative anchor, ensuring that even when rules are absent, the conduct of warfare remains bound by fundamental principles of humanity and the dictates of public conscience.   Most legal and moral frameworks assume that humans should make decisions involving the taking of life or imposing severe consequences. The Hague Convention (IV) (1907) stipulates that combatants have to be “ commanded by a person ,” thus underpinning the necessity of human control in warfare. Removing human decision-makers from lethal targeting processes violates adherence to IHL and international human rights law. The position that “removing humans from the loop risks removing humanity from the loop” has the support of state practice and opinion juris . In the absence of significant human control, AI-driven targeting platforms can violate the right to life since they lack the necessary decision-making capacity to assess proportionality and necessity.   Conclusion :   The integration of AI-driven technologies into modern warfare—particularly as witnessed in Gaza—presents profound legal, ethical, and humanitarian dilemmas that challenge the foundational principles of IHL. Given these legal deficiencies, regulatory measures must be implemented to ensure compliance with IHL. The United Nations Group of Governmental Experts (GGE) on Lethal Autonomous Weapons Systems has proposed a legally binding instrument to govern the use of AI in warfare , emphasizing the necessity of human control over critical targeting decisions. This proposal and current interpretations of existing IHL principles can explicitly address the use of AI in armed conflict. States, too, must also incorporate AI-specific legal safeguards into their military doctrines to prevent violations of distinction, proportionality, and precautions in attack.   AI-driven military systems pose unprecedented challenges to the principles of IHL. The evidence suggests that AI’s current error rates and inherent limitations in assessing proportionality render its use in lethal targeting operations highly problematic under existing legal frameworks. Without such reforms, the unchecked militarization of AI threatens not only to erode the protective shield of IHL but also to normalize a future where accountability for war crimes becomes diffuse and the value of human life is subjected to the fallibility of machines.

About the Author: Inika Dular is an undergraduate student at the Rajiv Gandhi National University of Law, India. Image by Mathieu Stern available here Introduction Investment laws are the backbone of economic growth. They enable countries to attract foreign direct investment (FDI) and foster domestic enterprise. India emerged as the fifth-best investment destination for CEOs worldwide in PwC India’s 28th Annual Global CEO Survey at Davos 2025. Sanjeev Krishan, Chairperson of PwC India, believes that CEOs still hold certain reservations about investing in India due to “ regulatory complexity .” India’s investment framework has often been termed inconsistent and self-contradictory . Challenges lie in its dispute resolution mechanisms, incentives, and taxation policies, all of which are frequently misaligned with international legal principles. In contrast, Saudi Arabia’s new investment laws , which replaced the Foreign Investment Law of 2000 in February, align with its Vision 2030 goals of uplifting its economy, society, and culture, and reflect a forward-thinking approach. This article explores key lessons India can take from Saudi Arabia’s new investment laws and the way forward for the nation’s FDI prospects, particularly in light of international investment law, Bilateral Investment Treaties (BITs), and global dispute resolution mechanisms. Learnings for Indian Investment Law from Saudi Arabia’s Saudi Arabia’s new investment laws exemplify an investor-centric approach consistent with its national economic goals. By analysing its key provisions, several areas emerge where India’s legal framework could benefit from reform. Dispute Resolution Challenges Indian investment law can draw significant lessons from Saudi Arabia’s innovative dispute resolution mechanisms. The Kingdom has established specialised courts under the International Centre for Settlement of Investment Disputes (ICSID). ICSID’s investor-state dispute settlement ( ISDS ) framework provides a neutral, internationally recognised mechanism for resolving investment disputes. This enhances legal certainty by ensuring binding arbitration, rather than relying on domestic courts that may be perceived as biased or inefficient by foreign investors. Saudi Arabia has made remarkable efforts towards achieving a seamless dispute resolution framework, as reflected in its recent agreement with ICSID declaring the Saudi Centre for Commercial Arbitration as its exclusive centre. The framework promotes adherence to principles such as Fair and Equitable Treatment (FET) and protection from expropriation, both of which are essential for maintaining investor confidence. These provisions reduce FDI risks and promote a predictable business environment. Additionally, the new Saudi law introduces investment-related Alternative Dispute Resolution (ADR) mechanisms under Article 10 , offering investors flexibility and business-friendly avenues for resolving disputes.   In contrast, investment disputes in India are often routed through overburdened civil courts , resulting in delays and higher costs. For example, the World Bank’s 2024 Ease of Doing Business rankings estimate India’s average commercial dispute resolution time at 1,445 days , compared to Saudi Arabia’s 575 days . Despite India’s enactment of the Commercial Courts Act (2015 ), its impact remains limited . Moreover, India’s withdrawal from ISDS in new bilateral investment treaties reduces investor protection, making the country less attractive to foreign investors. India is not a signatory to the ICSID Convention and has moved from ISDS towards a 2015-approved BIT model . While India's 2015 Model BIT retains ISDS, it requires investors to exhaust local remedies for 5 years and narrows the definition of protected investments to exclude portfolio investments, making international arbitration much harder to access compared to traditional BITs.   To make dispute resolution more effective, India should strive to align its international arbitration framework with the UNCITRAL Model Law on International Commercial Arbitration , which provides a uniform legal structure for fair and efficient arbitration. The model law strengthens investor confidence by ensuring procedural transparency, party autonomy, and enforceability of arbitral awards under the New York Convention, to which India is a signatory. This would help India balance its obligations under BITs while also reducing the threat of protracted litigation. Taxation Challenges and Investor Confidence India should also consider exploring tax policy reforms in line with recent developments in Saudi Arabia’s investment law. Saudi Arabia has aligned its tax policies with OECD’s international tax standards , particularly the Base Erosion and Profit Shifting (BEPS) framework, which aims to prevent tax avoidance by multinational enterprises and uphold global investment protection principles under BITs. Additionally, the Kingdom’s pro-investor, incentivised tax regime tackles bureaucratic hurdles and offers long-term stability guarantees. Its new Investment Law includes tax exemptions for up to 30 years in some sectors. These stable taxation policies contribute to investor confidence and predictability in Saudi Arabia.   India, in contrast, has had a history of retrospective taxation, which must be addressed to assure investors of a stable regulatory environment. Retrospective taxation is inconsistent with the FET standard under BITs. This standard requires host states to maintain legal stability and predictability. However, retrospective tax amendments, like the Finance Act 2012 , discourage foreign investors and lead to costly international arbitration cases against India. The Act empowered the government to impose a capital gains tax retrospectively on foreign investors by clarifying terms in the Income Tax Act 1961 . This led to major investment disputes such as Vodafone International Holdings B.V. v. Union of India (2012) – later also argued before the Permanent Court of Arbitration at the Hague – and Cairn Energy Plc v. Government of India (2020) , both of which were adjudicated against India in international arbitration. These outcomes damaged investor confidence because of uncertainty and unpredictability.    Although the Taxation Laws (Amendment) Act 2021 , which repealed the retrospective tax on indirect asset transfers, provided some relief, further reforms are essential. India should consider implementing Saudi-style tax stability agreements and binding advance rulings to prevent abrupt policy shifts, aligning with the OECD/G20 Inclusive Framework on Base Erosion and Profit Shifting (BEPS) . This would help attract long-term FDI while reducing legal disputes and enhancing clarity in tax administration. Bureaucratic Impediments India’s investment regulatory framework is governed by the Foreign Exchange Management Act (FEMA) 1999 and sector-specific policies . Bureaucratic delays and inconsistent legal interpretations continue to undermine the effectiveness of India’s FDI framework. The prevalence of bureaucratic delays and inconsistent legal interpretations has marred the whole FDI process. Conversely, Saudi Arabia’s single-window clearances and digital platforms boost efficiency in attracting FDI by streamlining regulatory processes. Following a centralized approach for approval, licensing, and regulatory compliance, the Kingdom’s Invest Saudi platform has contributed to a reduction in processing times and is targeting a twentyfold increase in FDI by 2030 . In its Vision 2030 program, Saudi Arabia has introduced several streamlined investment procedures to facilitate the establishment and operation of businesses.   Meanwhile, India’s current system requires investors to navigate multiple authorities, including the Reserve Bank of India and the Department for Promotion of Industry and Internal Trade , leading to inefficiencies. While the automatic route for FDI avoids some approvals, it is not sufficient. India should build on its Digital India progra m to develop a comprehensive single-window approach that enhances predictability, transparency, and regulatory speed, fostering a more attractive investment climate.   Unequal Treatment Lastly, India imposes sectoral caps and restrictive conditions on FDI, creating a fragmented and protectionist environment. For instance, India’s 2020 Consolidated FDI Policy restricts FDI in multi-brand retail to 51%, subject to government approval and mandatory 30% local sourcing requirements. Such regulatory hindrances and deliberate complexities have deterred global players such as Walmart and Carrefour from expanding in India. India’s full investment potential and enhanced global competitiveness can be achieved by adopting investor-friendly policies, such as reducing sectoral restrictions and promoting regulatory predictability, to foster long-term economic growth.   Saudi Arabia’s new law guarantees equal treatment for domestic and foreign investors. Additionally, the law aims to eliminate excessive regulatory burdens to facilitate seamless foreign participation. The Kingdom has also relaxed and liberalised its Negative List ( Annex (B) ) over the years to attract more investment. Negative List refers to a document outlining specific industries where foreign investment is restricted, prohibited, or subject to special regulations. India’s restrictions on foreign investments warrant reconsideration in light of the WTO’s Agreement on Trade-Related Investment Measures , which prohibits investment measures that restrict trade, such as local content requirements and trade-balancing measures.   The Way Forward for India In light of PwC India’s survey at Davos 2025 , now is the time for transformation. Meaningful reforms can help bridge the gaps between India’s and Saudi Arabia’s investment regimes and unlock India’s full economic potential. Saudi Arabian investment law demonstrates how a strategic framework can instill investor confidence, legal certainty, and efficiency in regulatory processes. India should consider adopting a similar approach to ensure its competitiveness as an investment hub.   The road ahead calls for a holistic approach; India should implement regulatory reforms by employing a single-window clearance and digitisation system, thereby accelerating approvals and eliminating bureaucratic hurdles. Equally important is the need for reform in the taxation system, along with the implementation of stability agreements and advance ruling systems to prevent arbitrary changes. Sector-specific incentives in special economic zones should be revived to attract high-end investments in emerging industries. Alongside investment dispute resolution, investor confidence will be strengthened through dedicated commercial investment courts and effective enforcement of arbitration awards. Finally, equal treatment of domestic and foreign investors will position India as a fair and transparent investment destination. Aligning with global best practices will empower India to emerge as a preferred and resilient destination for global capital.

About the Author: Lilit Arakelyan is a first-year law student and incoming Senior Articles Editor with the Berkeley Journal of International Law. Before law school, she studied international policy, classical studies, and engaged in human rights initiatives. At Berkeley Law, she has been exploring her interest in intellectual property law, and continues her work in human rights investigations at the Berkeley Law Human Rights Center. Photo by   Kelly Sikkema  on   Unsplash Canada’s investigation into social media platform X over its use of personal data to train Grok , its artificial intelligence (AI) model, encapsulates the tension between innovation and privacy rights in the evolving landscape of AI large language models (LLMs). The Office of the Privacy Commissioner of Canada (OPC) launched an investigation into whether X collected, used, or disclosed Canadians’ personal information  to train its AI chatbot without users’ consent. The inquiry was initiated following a complaint by a member of the Canadian Parliament who raised concerns about X’s use of Canadians’ data to train the chatbot to influence users’ political decisions . Shortly after, Ireland’s Data Protection Commission initiated  its own investigation into Grok’s training practices. Given the lack of AI-related laws, these parallel investigations highlight the legal ambiguity surrounding the use of personal data to train AI models. While countries like the United States emphasize the economic promise of AI development and discourage regulation of training practices, the European Union imposes substantial penalties against AI companies found in violation of  its privacy frameworks, such as the General Data Protection Regulation (GDPR) and its  pioneering Artificial Intelligence Act  (AI Act). Countries considering implementing AI-specific legal frameworks for the first time face the choice of determining what enforcement mechanisms to enact for effecting deterrence of the misuse of personal data: whether to follow the EU model and impose large financial penalties , or to rely on softer enforcement mechanisms, like compliance agreements and reputational consequences , under Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA).  The U.S.’s pro-growth economic  stance raises the question of whether  legal frameworks can compel private companies to stop misusing personal data without imposing costs that may “ stifle private sector innovation .” Thus, as these platforms are marketed as operating for the public’s benefit, policymakers may also grapple with the dilemma of  whether protecting individual privacy risks undermining the public good that these technologies aim to serve. What is Grok? Grok is an AI assistant developed by Elon Musk’s artificial intelligence company, xAI , to help X users accomplish tasks such as “ answering questions, solving problems, and brainstorming .” One week before Canada’s investigation, xAI  introduced Grok-3 , its“ Humorous AI Assistant. ” According to its website, X states that Grok was pre-trained using “a variety of data  from publicly available sources and data sets,” which were assessed and organized by human reviewers. xAI also indicates that it may utilize users’ X data from their profiles, posts, and engagement statistics to boost Grok’s understanding of human language communication, ability to provide accurate and engaging responses, “sense of humor and wit,”  and ability to remain politically unbiased .  The Grok investigations illuminate the tension between public and private value. Although LLM models like Grok promise public benefit, they are often trained on user-contributed data that was not provided for LLM and AI training purposes with informed consent . This practice raises important legal concerns under privacy law frameworks about the point at which leveraging large amounts of unfiltered personal data for technological innovation becomes unlawful exploitation, and even hinder innovation . Canada’s Privacy Framework: PIPEDA and Voluntary Standards At the federal level, Canadians’ privacy rights are anchored by the PIPEDA , which governs private-sector use of personal data, broadly defined as any information about an identifiable individual . Enacted over 20 years ago, the PIPEDA sets out ten Fair Information Principles,  including requirements for meaningful consent, purpose limitation, and security safeguards proportional to the relevant data’s sensitivity. However, the act’s enforcement can lack bite: the OPC can issue their findings, recommendations  for further prosecution, and a $100,000 CAD fine, but the greatest punitive force of the OPC’s investigations often relies not on sanctions, but the reputational costs that will likely follow. In contrast, the EU’s GDPR authorizes fines up to €20 million  or 4 % of their total global turnover, whichever is higher, for data protection breaches. Canada’s recent attempt to modernize its privacy and AI laws culminated in Bill C-27 , which included the proposed Artificial Intelligence and Data Act (AIDA) . AIDA sought to regulate “high-impact” AI systems and impose duties on developers, deployers, and managers to mitigate risks, aiming to ensure that “ Canadians can trust the digital technologies that they use every day .” However, the bill had several debated aspects , excluding protections against public sector use of AI, and leaving many details, such as the definition of “high-impact,” to be determined through future regulation. After more than two years in legislative limbo, AIDA died on the Order Paper in early 2025 after the prorogation of Parliament , leaving Canada without an AI-specific statutory framework. Non-Legislative Approaches In the absence of statutory reform, Canada has turned to institutional and voluntary mechanisms to guide the future regulation of AI. One such initiative is the Canadian Artificial Intelligence Safety Institute  (CAISI), which launched in 2024 with a $50 million budget. As part of Canada’s broader $2.4 billion national AI strategy , CAISI focuses on research into the safe development of AI systems and collaborates internationally on risk mitigation efforts. Canada has also introduced a Voluntary Code of Conduct on Generative AI , which dozens of companies have signed,  pledging to follow best practices. Canada’s investigation into X signals that the OPC interprets the training of AI models on personal data as a “use” of that data that must comply with the PIPEDA’s rules on consent, purpose limitation, and transparency, indicating a willingness to assert regulatory oversight through existing frameworks even in the absence of new legislation. Comparative Perspective: Europe and the United States On the international AI regulatory landscape, the EU takes the lead with the GDPR  and the AI Act . The GDPR already covers AI training when personal data is involved and allows regulators to impose multimillion-euro fines, such as Italy’s sanction against OpenAI  in 2024. The more recent AI Act, enacted in 2024 , marks a landmark shift in global AI governance. While the GDPR focuses on protecting individual rights in relation to personal data, the AI Act functions more like a product safety law , designed to ensure the secure technical development and deployment of AI systems. It categorizes AI tools by risk level and imposes strict compliance obligations for high-risk use cases, such as systems used in employment, law enforcement, or critical infrastructure. It also includes specific duties for general-purpose AI models, like those powering large language systems. Because of its extraterritorial reach, the AI Act applies to any company, regardless of location, that markets or implements AI systems within the EU.  Unlike the EU’s structured regulatory regime, the US takes a decentralized, flexible approach to AI governance . Many of the world’s most prominent AI firms—including X, Google, and OpenAI—are U.S. based, yet the country lacks a federal AI or comprehensive privacy law.  In 2023, the Biden administration issued an Executive Order on AI  urging Congress to enact data privacy legislation. The order emphasized responsible innovation, public protection, and privacy-preserving techniques, including the use of AI methods that enable model training without compromising the privacy of the underlying data. However, in 2025, the Trump administration issued a new Executive Order  on AI policy that shifted the focus from protecting users toward scaling AI technology. Now, the government emphasizes enabling high-quality training operations to be executed by applicants or their partners. While it called for setting new technical standards and security protocols, the order did not directly address privacy-preserving innovation.  Consequently, U.S. regulatory efforts remain fragmented. State laws attempt to fill the regulatory gap, for example, California’s CCPA  grants consumers the right to limit the sale and use of their personal data. In 2026, Colorado’s AI Act  will become the first comprehensive state-level legislation focused on regulating AI systems. At the federal level, the Federal Trade Commission relies on its consumer protection authority, while the National Institute of Standards and Technology ( NIST ) has developed a voluntary AI Risk Management Framework.  International Implications and Regulatory Convergence The investigation into X’s use of Canadians’ personal data for AI training serves as a microcosm of the legal challenges posed by artificial intelligence, highlighting the ongoing tension between technological progress and the adequacy of existing legal safeguards for users’ privacy and security. Canada’s current framework provides important protections that apply to AI platforms’ use of personal information, such as consent, purpose limitation, transparency, and security obligations. Yet, Canada’s legislature could not imagine the scale and complexity of AI training capabilities when it passed the PIPEDA or other relevant provincial laws. As a result, the PIPEDA do not sufficiently tackle all the legal challenges that rapid AI development may pose, especially when current frameworks are limited  in their enforcement powers. The stalled reforms in Bill C-27 leaves Canada relying on 20th-century legislation to tackle 21st-century AI issues, even as it champions AI ethics on the world stage .  Ultimately, achieving the balance between industry interests and adequate privacy protections is key. However, as these investigations demonstrate, whether states defer to industry interests, impose large fines, or settle compliance agreements, in a global AI race, no country regulates in isolation . The outcome of Ireland’s investigation will test once again whether the EU’s AI Act is sufficient to regulate how easily companies like X can use user data to develop their AI systems, although Ireland’s investigation comes one year after it’s previous case against X, which ended when the company agreed to stop training its AI systems using personal data collected from EU users . The question remains whether frameworks like the PIPEDA, despite lacking AI-specific  provisions or weighty financial punitive authority, can be effectively enforced to address cutting-edge AI training practices and protect against the exploitation of user data.  Yet, no matter how far-reaching the legal architecture, providing users the opportunity to opt out of the use of their data from LLM training models is a prudent exercise of corporate responsibility . The debate over AI growth and data privacy protections may not be settled by law or regulation, but by culture, as users who grew up in a world of mindless data exchange accept “information altruism” as the cost of participation . Laws safeguard interests that society deems protectable, but as users increasingly acquiesce to sharing even their most sensitive data, even voluntarily uploading their medical scans to Grok , experts are raising alarms. Amid growing reliance on AI, it remains uncertain whether new legal frameworks will emerge, or whether existing privacy protections will withstand evolving technological pressures.

About the Author: Liam Roche , LL.B., is a Master of Laws (LL.M. 2025) candidate at UC Berkeley School of Law, specializing in law and technology, advanced international law, attribution, and the regulation of non-state entities under international legal frameworks. He has published in several outlets, including Lawyers Without Borders, on topics such as international law, the protection of fundamental rights, and gaps in international accountability standards. Image Credit: U.S.A. National Aeronautics and Space Administration Introduction Nearly five years have passed since the first signing of the Artemis Accords , a multilateral, international agreement  outlining critical principles in relation to activities in space. The instrument has been heralded by many parties as being a catalyst for substantial development  for the field of space law in the modern context. Despite this, however, the Artemis Accords have a number of remaining gaps and ambiguities which bring their efficacy into question. This post will examine the Artemis Accords in their present state and analyze the remaining gaps in the field of international space law. Finally, it will assess how these gaps could be clarified and remedied in international law to ensure critical principles of space use and exploration are upheld. Background The Artemis Accords are only the latest in a series of international agreements and treaties surrounding the use and control of space and its resources. The first of these, and the one which laid the groundwork for the modern international space law, was the Outer Space Treaty of 1967  (OST). The instrument was largely a response to the space race between the USA and USSR along with the growing fear that countries could use their rapid development of space technology to place weapons systems in space. The OST outlined several core principles governing national activities in outer space, including: the prohibition of national appropriation or sovereignty claims over celestial bodies; the freedom of all nations to explore space; the responsibility of states for national activities conducted in space; and a ban on the placement of weapons of mass destruction or other weapons in orbit.  Next, the Moon Agreement  (MA), which was introduced in 1979 and currently has seventeen parties, was a further specification on the regulations afforded by the OST with respect to specific activities on the moon and other celestial bodies. This instrument was largely a restatement of the OST with specific focus placed onto scientific operations. However, it contained additional clarifications regarding subsurface operations on the moon as well.  Finally, the Registration Treaty  (RT), introduced in 1974, has since been signed by over seventy nations. This treaty contains specific obligations for the reporting of launched objects into space. The treaty requires that parties disclose the name of the launching State, an appropriate designator of the space object or its registration number, the date and territory or location of launch, and the object’s function.  A New Era of Space and Space Law Following the introduction of these international instruments, there has been an immense boom in the use of space and space activities generally. New nations  have begun conducting space activities, international collaborative efforts  in space have become more mainstream with initiatives like the International Space Station, and private actors have begun to play a much more central role in the outer space context. With these developments, alongside the substantial technological advancements, the treaties have become increasingly important instruments in international law. However, although they represented a significant step forward at the time, the treaties and agreements have not kept pace with modern challenges. Gaps and ambiguities have emerged, highlighting the pressing need to modernize the treaties for contemporary adaptation.  Enter Artemis The Artemis Accords (2020), a multilateral agreement between nations concerning the use of space, have marked a significant development in the field. They provide modern clarifications to the OST, building on the foundations established by both the OST and MA. Additionally, the Accords introduce new and specific standards and interpretations for space activities.  Collaboration & Transparency The Accords lay out a number of methods by which international collaboration on space efforts can be facilitated. Firstly, the parties agree to establish standards for technologies used in space— an effort aimed at unifying and streamlining operations while also increasing the accessibility of space for scientific discovery, exploration, and innovation.  Registration & Debris Management In addition, the Accords address what has become a growing problem in space: orbital debris and object registration. With the amount of space activity increasing, the problem of “space junk” and knowing precisely where and what objects are in space has become an increasingly present concern. To this end, the Artemis Accords have outlined commitments to limit the amount of harmful debris and establish a standardized and unified registration system which complies with the Registration Treaty.  Space Resources Finally, and most significantly, the Accords outline a novel interpretation of the OST concerning the use and appropriation of resources. The most relevant provision in this area is section 10(2) which states that “[t]he Signatories affirm that the extraction of space resources does not inherently constitute national appropriation”. This is in reference to Article II of the OST which prohibits national appropriation by claim of sovereignty or otherwise.  By incorporating this provision, the signatories clarify their interpretation of Article II as  addressing only territorial claims of complete sovereignty and not resource appropriation. This marks a significant development as it paves the way for nations and private industry to engage in resource extraction from asteroids, other planets, and additional celestial bodies through mining operations.  Remaining Issues Despite these clarifications and refinements to existing law, the Artemis Accords do not wholly iron out the creases present in the OST and subsequent international instruments. Peaceful Purposes The Accords have put forward that they are only binding on operations conducted in the context of peaceful purposes. This limitation is noteworthy, as the scope of what constitutes “peaceful use” has remained a significant and unresolved issue since the adoption of the OST. As mentioned, the OST outlaws the placement of weapons in outer space, including weapons of mass destruction. One issue under the OST is the possibility of a space-based missile interception system such as the SDI proposed by President Ronald Reagan in 1983 and whether such a system could be classified as a “weapon” under the instrument. As the term is not defined, it does bring into question whether a defensive military asset could be classified as  such. The Artemis Accords, by expressly stating so in Section 3, do not address this issue at all, leaving it to be determined by a potential future international treaty. Private Industry Another critical gap the Artemis Accords have failed to regulate is the role of private companies  in the modern landscape of space activity. While the accords acknowledge the existence of these actors in multiple sections—for example, Section 8 concerning the release of scientific data expressly states that it “is not intended to apply to private sector operations unless such operations are being conducted on behalf of a Signatory”—they stop short of imposing concrete obligations. This omission is significant, as neither the OST nor other instruments provide for clear regulations on the obligations of non-state entities, such as requirements to register, cooperate, or even restrict their activities in space . Non-Binding Most critically, while the Artemis Accords modernize international space law in several respects—particularly by clarifying aspects of the OST and other instruments—they are not legally binding. By using language including “intend” and “note” among others, the Accords are able to form what is effectively a unified outlook on space activities and a collective interpretation of outer space law without creating any direct obligations or establishing any frameworks by which disputes or issues could be resolved.  Conclusion To conclude, it is undeniable that the Artemis Accords have marked a substantial new era of outer space regulation and international space law. The Accords present a unified set of principles, interpret existing instruments in a modern setting, and outline how conduct in space can adhere to international legal principles in today’s rapidly evolving space race. However, they are not binding and fail to address immense issues— including the classification of military assets as weapons under the OST and the obligations of private companies and other non-state entities operating in space. Because of these glaring omissions and the lack of a comprehensive framework in which these gaps can be addressed, the field of international space law remains largely unsettled. Despite appearances, the Artemis Accords do not constitute the binding treaty needed to govern the current and future use of space.

About the Author: Laiba Imran recently completed her Bachelor of Laws degree with Honors at the Pakistan College of Law, Punjab University. During her time as a student, she served as President of the Debating Society. She is currently the Director and Research Associate at the Technology Law Research Society, a non-partisan and non-profit think tank in Pakistan focusing on the intersection of law and technology. Laiba has also worked as an intern at the Chamber of Advocates Supreme Court Barrister Aitzaz Ahsan, and at esteemed law firms, including the Chartered Institute of Arbitrators Pakistan, Minto & Mirza, and AUC | Law. Her publications address critical societal issues in Pakistan, incl uding minor children, youth, and democracy, unilateral divorce, and gender-based inequities. With a foundation in legal drafting and analytical skills, Laiba is committed to bringing about meaningful change in Pakistan, particularly in areas where women face systemic injustice.   She can be reached at  laibaimran8500@gmail.com . Since Israel initiated its military aggression in Gaza on October 7, 2023, or the Nakba of 1948, Palestinians have been confronted with a dystopian reality. Despite the ongoing situation in Gaza, Israel has categorically denied all allegations of human rights violations and genocide, asserting that its military is " the most moral in the world ." Israel employs well-worn strategies to obfuscate its transgressions by denying the humanity of its targets. The systematic dehumanization of Palestinians through the use of a " language of genocide " bears resemblance to previous instances in which groups have been targeted with similar rhetoric, such as the " merciless Indian savages " in America or the " untermenschen non-Aryans " in Europe. Indeed, dehumanization constitutes an integral phase in the commission of genocide. The process of dehumanization serves to mitigate ethical reservations concerning the act of killing, as it enables the perception of the victims as no longer human and, consequently, as being different from us and inferior. This phenomenon is exemplified by the cheers from Israeli citizens, encouraging the devastation in Gaza, and the chanting of " Death to Arabs " with other racist slogans. Furthermore, there is the incitement of racism by the IDF (Israel Defense Forces) and Israeli leaders. These instances underscore Israel's strategic employment of state-sanctioned hate to nurture societal acceptance for the ongoing genocide in Gaza.   This analysis examines Israel's actions in Gaza after October 7, 2023, contextualizing them within International Humanitarian Law (IHL) and the wider legal and moral implications. It is imperative to acknowledge that legal principles are non-reciprocal, meaning that they apply regardless of the opposing party's actions. Attributing blame to the actions of another party, citing imbalances of power, or other forms of injustice, cannot justify violations of these principles, such as the deliberate targeting of civilians or the imposition of collective punishment.   Key Principles of International Humanitarian Law The Swiss government formally established International Humanitarian Law (IHL) with the 1864 Geneva Convention and has since evolved significantly. By the late 20th century, IHL enshrined several key humanitarian principles, including: The distinction between civilians and combatants The protection of those hors de combat (i.e., “out of action due to injury or damage”) The prohibition of unnecessary suffering The principles of necessity and proportionality These principles are designed to protect civilian lives and preserve human dignity, even in the context of armed conflict. From Additional Protocol I to the Geneva Conventions (1977): Article 48 (Basic Rule): "Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives." Article 41(2): "A person is hors de combat if: (a) He is in the power of an adverse Party; (b) He clearly expresses an intention to surrender; or (c) He has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself."   According to the modern perspective articulated by Theodor Meron , a former judge for the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and the International Residual Mechanism for Criminal Tribunals (IRMCT) , the “humanitarian rights system directly addresses the responsibility of governments vis-a-vis populations over which they exercise power, authority, or jurisdiction, largely regardless of nationality.” The purpose of international law is to prevent any state from pursuing only its own national interests at the expense of human dignity or integrity , and to hold states accountable when they do so. This framework is equally applicable to unequal and asymmetric party relationships , like the dynamic between Israel, the occupier, and Palestine, the occupied state. Article 42 of the Fourth Hague Convention defines an occup ied territory as one that is “ placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” An d an occupying power is a foreign state that assumes unconsented-to effective control over a territory to which it has no sovereign title.” A “belligerent occupation” is one in which “the occupying power exercises provisional and temporary control over [a] foreign territory.” By th ese definitio ns , Israel has belligerently occupied Palestine since 1967 , a status affirmed by the International Court of Justice (ICJ) in its July 19, 2024, Advisory Opinion .   Because Israel is an occupying power under IHL, it is bound by certain duties towards the population, and it is not permitted to acquire sovereignty over the territory. Israel has a dual obligation to protect the lives and property of the inhabitants of the occupied territories and to respect their sovereignty . In addition, I HL prohibits specific tactics of war and attacks on vulnerable groups , including children, civilians , and the wounded or sick.   International Law Violations in Gaza Preservation of Life and Property It is evident that Israel has not fulfilled its legal obligations in accordance with the laws of belligerent occupation, outlined in Articles 42-56 of the 1907 Hague Regulations , the Fourth Geneva Convention , and Additional Protocol I , by not pursuing the preservation of life and property. In contrast to the preservation of the lives of Palestinian children and sick or injured civilians, Israel has employed carpet-bombing tactics in densely populated areas of Gaza, including the Jabalia Refugee Camp, Khan Younis, Deir el-Balah, and most recently, Rafah, designated as the last "safe zone ." Consequently, according to Gaza’s Ministry of Health, more than 50,000 Palestinians have been killed since Israel launched its military offensive on October 7 in the wake of deadly Hamas attacks. The cumulative effects of Israel’s war on Gaza could mean the true death toll could reach more than 186,000 people . Furthermore, the use of heavy munitions, including dumb bombs, bunker busters, thermobaric bombs, and white phosphorus , many of which are prohibited under international law , has further exacerbated the devastation. These operations, justified by Israel as necessary to eliminate Hamas , have resulted in the deliberate targeting of children, pregnant women, and medical patients with live ammunition and targeted air strikes. Survivors' testimonies reveal other violations such as field executions, detention , and enforced disappearances in military detention centers such as Sde Teiman , and the use of mass graves for its 'Ghost' operation in Gaza. The IDF has treated Palestinian abductees like " animals ,” refusing to distinguish between innocent civilians and armed combatants. In addition to deliberately targeting civilians, Israel has also violated Article 56 and 57 of the Fourth Geneva Convention by purposefully destroying and damaging civilian infrastructure such as hospitals, including Gaza’s largest functioning medical center Al-Shifa Hospital , United Nations Relief and Works Agency (UNRWA) schools and universities ,   orphanages , and Gaza’s only functioning wheat mill and water plant . Israel's deliberate targeting of civilian welfare structures has led to the near-total collapse of the social fabric of Gaza and pushed millions of people to the brink of famine. Such attacks constitute grave war crimes under Article 54 of the 1977 Protocols to the 1949 Geneva Conventions, which prohibits “starvation as a method of warfare.” Moreover, Israel's decision to target protected buildings, such as educational institutions, hospitals, and historical monuments , also constitutes a serious crime under Article 8(2)(b)(ix) of the Rome Statute .   Economic Warfare and Humanitarian Crisis The concept of respecting sovereign rights entails the acknowledgement of a state's legitimate authority over its territory and resources. However, the status of Gaza remains a subject of contention, with various parties contending that it is a sovereign entity and others asserting that it is under occupation. As of 2007, Israel has kept Palestine under a strict military and commercial blockade, a form of economic warfare that has turned Gaza into "the largest open-air prison in the world. " In 2024, t he ICJ ruled that Israel's presence in the Palestinian territories is unlawful , thereby emphasizing that Israel lacks the right to exercise sovereignty over these regions.   Despite the ruling, Israel continues to enforce strict blockades. The Israeli border control has prohibited the entry of numerous essential items , including cement, tar, irrigation pipes, and fabric, into Gaza. These materials are crucial for the reconstruction of structures that were partially or wholly destroyed during Operation Cast Lead , a 22-day military offensive that resulted in significant fatalities in Gaza in 2009. This policy was most recently reviewed by Israeli authorities to enforce a total siege of the Strip following the events of 7 October .   Israeli border control has also withheld critical medical supplies , including anesthetics, anesthesia machines, oxygen cylinders, ventilators, water filtration systems, cancer medications, water purification tablets, and maternity kits. In May 2024, over 15,000 tons of their relief supplies awaited Israeli approval to enter Gaza. These restrictions have had a profoundly detrimental humanitarian impact on the civilian population in Gaza, severely impeding their ability to rebuild and access essential healthcare services at a time when 96% of the water from Gaza's sole aquifer is unfit for human consumption and children's access to water and sanitation in Gaza continues to be restricted and insufficient . There are also numerous instances of acute respiratory infections, diarrhea, and jaundice .   This obstruction of humanitarian assistance, coupled with targeting aid workers, further violates IHL. According to the UN, up to 254 aid workers have been deliberately targeted since the beginning of Israeli aggression on Gaza, a serious violation of IHL under Article 8(2)(b)(iii) of the Rome Statute . Moreover, Israel has made allegations of involvement in terrorism against UNRWA, along with the countries that provide financial support to the organization, without providing evidence to substantiate these claims. These allegations aim to hinder UNRWA's and other countr ies’ operations in the Gaza Strip. A New Look at International Law Despite appeals for accountability, international mechanisms recognize certain limitations. On November 21, 2024, resulting from an inquiry into war crimes and crimes against humanity, the International Criminal Court (ICC) issued arrest warrants for two high-ranking Israeli officials: Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, Israel’s former Minister of Defense.   However, it is crucial to acknowledge the intricacies of the legal process and the need to address the systemic causes of conflict, such as economic, political, and military hegemony, which have been responsible for seven decades of military occupation, ethnic cleansing, and economic warfare. Furthermore, the United Nations Security Council's (UNSC) reluctance to swiftly pass a resolution regarding Gaza is attributable to political pressures from the United States . At the time of composing this article, the United States had utilized its veto power forty-six times to block resolutions that addressed Israel or supported Palestinian statehood.   For an extended period, Israel has strategically employed the terms " self-defense ," " terrorism ," and " antisemitism " to maneuver within the global political landscape, effectively countering the demands of the Palestinian people. It has presented a unilateral and partial interpretation of international law, ultimately shaping the international order in its favor. This strategic approach has reshaped the rules-based international order to serve as a means to an end for various geopolitical agendas. Notably, despite the gravity of the transgressions—namely genocide , annexation , and apartheid —Israel continues to operate within an alternative rules-based order that affords it a degree of protection.   In the aftermath of October 7th, the Gaza conflict has given rise to a novel unipolar paradigm within the global legal order, one that is predicated on the principles of victor’s justice and global inaction. It is imperative to examine the rationale behind a state's ability to profess adherence to legal principles while simultaneously disparaging international bodies and displaying impunity for their genocidal actions. The international community's apparent paralysis and inability to halt the ongoing genocide in Gaza have exposed the inherent limitations of international law, whether intentional or not. This situation underscores the pressing need for a new order free from the constraints of "security" hegemony, jurisdiction restrictions, and political actors. Preserving the sanctity of life demands the implementation of such a new order.

About the Author: Laurel Fletcher is the Chancellor’s Clinical Professor of Law and Director, Global Rights Innovation Lab Clinic, UC Berkeley School of Law and the 2025 Recipient of Riesenfeld Award. This Article is a transcript of her recipient speech from the 2025 Riesenfeld Symposium: Lawyering for Peace. Introduction I am so grateful to Berkeley Journal of International Law for honoring me with this year’s Riesenfeld Award. I remember sitting in the audience when Professor David Caron received the first Riesenfeld Award. This was soon after I started teaching at Berkeley. I remember so clearly my sense of awe listening to David and his accomplishments and feeling the impossibility of bridging the distance between what I could hope to achieve and a contribution that would be worthy of similar recognition. I am humbled that you have placed me in the company of past awardees and leaders in the field including the two here tonight: Professor Richard Buxbaum and Judge Joan Donoghue. I admire each so deeply. I. Human Rights in Time of Global Realignment I must begin by noting that I’m receiving this award at a moment when the foundations of the international world order are under assault. The United States is reconfiguring a world security regime based on this country’s historic alliance with democracies. The President undermines international law with talk of acquiring Canada, Gaza, Greenland, and the Panama Canal. Signaling a retreat from European allies, it appears US foreign policy will be dictated by a narrow view of self-interest and raw power. We are facing a very grim new international world order. In this one, which our colleague Professor David Grewal terms “ nuclear Westphalia ,” [1] the only States with full rights of sovereignty are those with nuclear weapons. Those without? They will either look to develop nuclear capability or seek security guarantees through States that do.   In this very sobering moment, I’d like to address the contemporary role of international law and lawyers. I do so by suggesting that we need to accept some hard truths as we make our way forward. A.     The conventional ways of defending international human rights are outmoded. The modern human rights movement can proudly trace its rise in international influence to exposing the truth of government repression and terror by condemning those abuses as violations of international law. In the past, within a world order knit together by the rule of law, Amnesty International (hereinafter as Amnesty) and Human Rights Watch (HRW) pioneered naming and shaming tactics to draw international attention to human rights violations. In an era when a State’s global legitimacy was tied to its compliance with international law, nongovernmental organizations like Amnesty and HRW could leverage monitoring and reporting to great effect. Yet the world has changed, and this model is no longer fit for purpose. International law and institutions face the challenges of regulating actors and phenomena for which the system was not designed. International law takes the formal sovereignty of States as its organizing principle. Our institutions were not designed to address the diffuse, transboundary, and destructive effects of the climate emergency, the power of Big Tech and digital technology, or abuses committed by multinational corporations. These threats to human freedoms are only accelerated by the rise of authoritarianism and the abandonment by powerful States of a commitment to the idea of truth that can be shown by facts. This Administration has moved from “alternative facts” [2] to “counter-factual facts.” Yesterday’s democratically elected leader defending their country against invasion becomes today’s dictator. [3] The United States, once the democratic world’s most powerful State, is no longer a reliable ally. B.     International lawyers need to develop new theories and strategies suited to the new global moment As someone whose career trajectory roughly coincides with what HRW founder Aryeh Neier refers to as “ a golden age ” [4] of human rights, it is painful to come to terms with where we are today. I think back to just over ten years ago when the Secretary General of the United Nations declared we were in the age of accountability . [5] It seems like ancient history. It certainly feels like a bygone era. If naming and shaming States into compliance is no longer the potent tool it once was, what comes next? I see hopeful signs for the continued relevance of international rights. We have seen exciting developments where advocates used courts to develop international law to address the climate emergency [6] in domestic contexts. Scholars and activists in the Global South are using intersectional approaches — advancing pluralistic interpretations of rights that encompass Indigenous epistemologies and building what may be called not universal but pluriversal rights . [7] It is exciting to see North-South coalitions using human rights frameworks and institutions to address systemic economic inequality. None of these strategies rely on exposing violations as their primary vehicle to change the world. All of them are using international law as part of social movement mobilizations, leveraging the differential power [8] of nongovernmental actors within the human rights movement in interesting and productive ways. This is the future. And we, lawyers trained in the Global North, have unique opportunities to be part of it by applying new theories, new tools, and new collaborations. Thus, I have re-examined my own work to ask: How can I contribute, through Berkeley Law, to this moment? II. The Case for Leveraging Technology for Rights Advocacy In thinking about this question, I’ve come to realize that, to meet the moment, human rights advocacy must take into account the pervasiveness of technology and harness it to advance justice. To do so, I am starting a new clinic at the law school called the Global Rights Innovation Lab Clinic, or GRIL. In building this new clinic, I am guided by the questions Professor Carolyn Patty Blum and I asked over twenty-five years ago when we started the International Human Rights Law Clinic: How can international law and we as international lawyers help address urgent human rights problems? Today, one powerful but underutilized tool at our disposal is the ability to leverage data and digital technologies. When we think about technology and law, most of us think about how law can regulate technologies to prevent abuses of individual and collective rights. Over the past decade, questions of global governance of technology have taken more and more of my attention. These questions grew more pressing not because I sought them out, but because I could no longer ignore the weaponization of technology. Perpetrators increasingly use digital tools to target human rights activists, and I worked with clients to craft legal strategies and fight back. Whether it was working to free imprisoned activists in countries throughout the Arab Gulf region or fighting against cybersecurity laws that criminalized human rights groups around the globe, I helped to document violations, write policy briefs, and file petitions by relying on client testimony and other conventional forms of proof gathered through traditional lawyering methods. But technology can also be used to advance the protection of rights. This is what some call public interest technology , [9] or data for good. [10] Human rights advocates are just beginning to harness the full potential of what this area has to offer. It is here, at the intersection of technology and global rights, that I see great opportunity for a new clinic to fill a service gap, leverage new technology tools, and train students for legal advocacy in the digital age. III. Global Rights Innovation Lab Clinic To do so I’m working with Valentina Rozo Angel , a human rights data scientist, to create GRIL with a mission to harness digital tech to advance global rights advocacy. And harness we must if we are going to keep up with global challenges. We need to bring new tools to address the large-scale violations of armed conflict, the climate emergency, surveillance capitalism, and other transnational threats to societies. We see an opportunity to help advocates access and analyze a sea of relevant data to identify the prevalence of violations, patterns of harm, and paths of responsibility to build cases for justice. We hear from groups that they need help expanding digital storytelling and data visualization to engage and enlarge public support for human rights cases and values. Equipped with new methods of data analysis, we plan to work with advocates to expose hidden patterns in open-source information or public databases. We are eager to explore generating new kinds of evidence with digital 3D modeling of crime scenes or using satellite images to produce damage calculations in support of human rights litigation. These techniques elevate human rights lawyering tools to align with the digital age. In GRIL, law students will work alongside technologists and data scientists. They will acquire tech literacy in an advocacy context. They will enter the profession with a first-hand understanding of how machine learning, data modeling techniques, generative AI, and other methods can support legal practice. We must be strategic about how and where we intervene. We need to invest in spaces where facts and truth still matter. Remember, human rights cases win on the facts. This means we will identify opportunities before independent courts at the national, regional, and international levels. It also means equipping international bodies with accurate facts because there are contexts, like in judgments from the International Court of Justice, where independent fact-finding will be amplified. When international institutions are effective, they can still impact State behavior and persuade a broader audience in the court of public opinion. GRIL is eager to support communities closest to the ground to tell their stories, consolidate support, and reach new audiences. This may push human rights advocates outside of our comfort zones and into spaces of cultural production and public education, whether that is through collaborations on museum exhibitions, interactive online curricula, or even video games.   GRIL may not necessarily work in all these areas. We are guided by the needs of directly impacted communities and the opportunities available to us through the university’s resources. We are cognizant of the embarrassment of riches in the technology and human rights spaces in which we sit.   We aim to complement the work of Berkeley Law’s Human Rights Center. Its Digital Investigations Lab led by Alexa Koenig has pioneered techniques [11] to collect and analyze publicly available digital information in support of accountability for atrocity crimes. GRIL aims to apply additional data analysis tools to open-source evidence to help build cases for clients seeking accountability for violations of human rights and international criminal law. The law school’s Samuelson Law, Technology & Public Policy Clinic has long been a leader in clinical teaching on tech governance. I look forward to a productive working relationship with the clinic. Applying technology in a rights-compliant manner must be at the center of GRIL. Ethical human rights lawyering means that we “do no harm,” and I am delighted to have such expert and generous colleagues to advise and help guide this work. Conclusion I want to end with some important acknowledgments The Riesenfeld Award recognizes my contribution to the field of international law and human rights. A contribution that in turn is the product of a web of collaborations and support that spans years and decades. The International Human Rights Law Clinic (IHRLC) was my professional home for more than twenty-five years, where I worked alongside and learned immensely from Professor Roxanna Altholz . The Clinic sits within Berkeley Law’s larger clinical program, where I have been graced with wonderful clinical colleagues whose support and advice have made me a better teacher. I want to thank my current and former students, the heartbeat of clinical education, who inspire me every semester. My colleagues here at Berkeley and beyond are a constant source of support and intellectual renewal when I need it most. It is through your engagement that I can see more clearly the flaws in my work and get ideas for how to improve it. I want to recognize Professors Eric Stover and Harvey M. Weinstein . When they invited me to participate in the early work of the Human Rights Center , they set the trajectory of my career and I am forever grateful. I owe a bottomless debt of gratitude to my family for their support of my work over the years, despite its tax on our household. Our daughter asked me when she was young why I choose my work over my family, traveling so frequently. I told her that I was trying to make the world a better place. She paused and said: “It’s not working.” What she couldn’t understand then is that fighting for human rights is its own reward and change may visible only over a long period. Whether I was sitting with former Guantanamo detainees who were trying to make new lives after their release; male survivors of sexual violence in Uganda fighting for reparations; or advocates of illegally imprisoned human rights activists , I have always felt that it is an honor to serve clients, community partners, and frontline advocates advance human rights. They have trusted me and the institutions I represent to strengthen their struggle for justice and I have tried to be worthy of that trust. As international lawyers, we are equipped with a special set of tools. We cannot use them like a magic wand, but we can be strategic legal counselors to victims and communities. We can work in solidarity to support their rights struggles, identify opportunities to advance justice and serve them as they travel that journey. That is the lesson that Stephan Riesenfeld taught me. I met Steve just after I graduated law school, and I sought his advice on how to use international law to prosecute war crimes in the Balkans. At the time, the International Criminal Tribunal for the former Yugoslavia had no accused in custody, and its prospects for gaining jurisdiction over any were dim. Human rights advocates were in despair; we saw the tribunal as our only hope for justice. Steve waived off these concerns. He told me that States could prosecute accused war criminals in their territory under the theory of universal jurisdiction. “But what about all the domestic legal challenges,” I asked. “No, no, no!” he shouted at me. “The law is there. You’ve just got to make it work!” So, my last thank you is to Steve for his admonition. I’ve been trying to follow your advice ever since. Thank you again for this recognition. [1] David Grewal, From American Empire to Nuclear Westphalia , Compact (Mar. 03, 2025) https://www.compactmag.com/email/5962afe7-6d44-497e-b5a3-2597d179b467/?ref=compact-newsletter . [2] Brian Stelter,  Kellyanne Conway: Trump White House Offered ‘Alternative Facts’ on Crowd Size , CNN (Jan. 22, 2017, 3:44 PM),  https://www.cnn.com/2017/01/22/politics/kellyanne-conway-alternative-facts/index.html . [3] Gabriela Pomeroy & George Wright,  Trump Calls Zelensky a ‘Dictator’ as Rift Between Two Leaders Deepens , BBC News (Feb. 19, 2025),  https://www.bbc.com/news/articles/cjev2j70v19o . [4] Aryeh Neier, The International Human Rights Movement: A History 184 (Course book ed., Princeton Univ. Press 2020). [5] Press Release, Security Council, Sec'y-Gen. Hails Int'l Crim. Ct. as Centrepiece of ‘New Age of Accountability,’ Urges Enhanced Coop. with Sec. Council, U.N. Press Release SC/ 10793 (Oct. 17, 2012). [6] See generally César Rodríguez-Garavito, Litigating the Climate Emergency How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action(Cambridge Univ. Press 2022). [7] See generally The Pluriverse of Human Rights: The Diversity of Struggles for Dignity (Boaventura de Sousa Santos & Bruno Sena Martins eds., 2021) [8] Join Our New Cohort: ESCR-Net Launches Feminist Participatory Action Research Initiative , ESCR-Net (Mar. 3, 2025), https://www.escr-net.org/news/2025/escr-net-launches-feminist-participatory-action-research-initiative-join-our-new-cohort/ . [9] The Public Interest Technology University Network , PIT-UN (last visited Mar 25, 2025), https://pit-un.org/about-us/ . [10] Datasets for Good , PIT-UN (last visited Mar 25, 2025), https://pit-un.org/datasets-for-good/ . [11] Berkeley Protocol on Digital Open Source Investigations: A Practical Guide on the Effective Use of Digital Open Source Information in Investigating Violations of International Criminal, Human Rights and Humanitarian Law , U.N. Doc. HR/PUB/20/2.

About the Author: Stefanie Uhl studied librarianship at Stuttgart Media University, Germany. She also holds a Master’s degree in Educational Management. She works as the head of a public library in the Stuttgart region of Germany. In 2024/2025, she is also giving lectures in information pedagogy at Stuttgart Media University. Since 2021, she has been a PhD candidate at the University of Lucerne, Switzerland, at the Lucerne Graduate School in Ethics of the Institute of Social Ethics where she is working on her PhD thesis with the working title “Libraries as a Place for Human Rights Education.” Stefanie Uhl. Image provided by Stefanie Uhl. Education about Human Rights is a Human Right and Public libraries should be mandated to fulfill the public task of Human Rights Education Introduction Libraries as they currently operate help fulfill the Human Right to Education and have the potential to be transformed to ensure the provision of Human Rights Education (" HRE "). Libraries around the world operate under different legal ordinances. Public libraries find their regulations in national law, often differing between   countries and States. The International Federation of Library Associations and Institutions (IFLA)  and UNESCO published the IFLA/ UNESCO Manifesto 2022  aiming to highlight the mission of public libraries towards the right to education. Public libraries contribute to this right by providing access to information and knowledge and by taking action towards a literate society. Even though libraries contribute to the realization of economic, cultural, and social rights, they are affected by financial cuts . Investments in libraries are investments in a free, democratic, and prospering society, guaranteeing Human Rights (" HR "). In compliance with the requirements of the United Nations Declaration on Human Rights Education and Training ,   states shall take all available means for the implementation of HR to HRE. Libraries and their extensive global network  must be  regarded as these means. Existing library laws should incorporate this requirement, and newly created legal standards should take this up too. Library law  can guarantee the operation of libraries in the   best possible way and guarantee a high standard of   library work by securing funding and making the operation of libraries an obligatory task for cities and communities. With secure   conditions, the worldwide network of libraries can continue to contribute to   HR . The Right to Education The Universal Declaration of Human Rights (UDHR)  declares education in Article 26 as a   HR. Education, in fundamental and elementary stages, shall be free. Higher education shall be accessible and professional, and technical education shall be available. Human personality and its full development shall be a goal of education, along with promoting HR. The UDHR is not a legally binding document but finds its implementation in international law through binding UN treaties . To obtain legal effect, HR must be implemented in state law. States have reaffirmed the HR in nine UN treaty bodies.  Still, there are violations of   the HR to education all around the globe, as, for example,  refugee children who have no access to schooling in the EU , girls in Afghanistan who are not allowed to attend schools ,  or trans rights in the US . The right to education is also taking part, amongst others, in the United Nations (UN) Universal Declaration of Human Rights (1948) , the Convention on the Rights of the Child (1989) ,  and in the Sustainable Development Goals (SDGs) . Human Rights Education To protect and promote HR, everyone   must have knowledge about these rights to claim them for themselves and for others. Within the right to education comes the right to human rights education . HRE, as the instrument to strengthen HR, is more than knowledge; it is education for, through, and about HR, as held in the General Assembly resolution 66/137 . “About” HR means providing knowledge about HR and the understanding of its   principles and norms. Also, the protection mechanisms are part of the learning content. Education “through” HR means respecting   the HR of learners and educators in the teaching process. “For” HR is understood as empowering HR by claiming it   for oneself and others. This definition supports the holistic approach  of human rights education . States hold the primary responsibility   for the implementation of HRE : as  recorded in Article 7   of the United Nations Declaration on Human Rights Education and Training , States are primarily   responsible for ensuring HRE. Creating a safe environment for engagement in HRE and full protection of those   engaged in the process is   part of a State's   duty. Taking different requirements and appropriate means into account, States should strive for the implementation of HRE with all available resources. HRE should be part of the training of State officials, military personnel, judges , and   law enforcement officials. Such training should include   teachers and other educators, like   library workers. Understanding of Education The term “education” differs in its meaning. While the UDHR and the Child Rights Convention (CRC) focus on   formal school settings, UNESCO documents broaden the concept of education. The Incheon Declaration (2015)  adds “quality,” as listed in the Sustainable Development Goal (SDG) 4, as a criterion for education, meaning that education should   aim to transform the lives of individuals   and societies. The definition of education out of the declaration makes clear that education is limited only to learning. The outcomes are not just in   formal school settings, but also in being able to think critically and creatively. Education thus becomes an instrument for shaping one's own    mindsets. Rethinking Education (2015)  notes the importance of organized learning in all forms of education (formal, informal, non-formal) and sets this as criterion   of education. With also having the SDGs as the main goal, the document adds safe places for learners as a prerequisite for education. And by focusing on formal and non-formal education, it also positions the latter as an important education setting. In translations, education may vary in its understanding in different languages. This also should be considered when the term “education” is used. Libraries as a Place for Human Rights Education As they already contribute to the SDGs, libraries are a place for HRE, even if only implicit. The IFLA Library Map of the World shows libraries'   activities towards the SDGs, in Goal 4 Quality Education and beyond. Explicit HRE is necessary to fulfill the demand for   a   holistic approach towards HRE. As everyone has the right to HRE, marginalized groups are moving into the spotlight, as they were previously excluded. As a place where no prerequisites are needed for usage, libraries might be the only place where rights holders can assert their rights. Library staff need   HRE to act on behalf of and to demand their rights towards library users, as the holistic approach requires. Libraries support formal school settings and work in non-formal and informal settings. By having locations in many cities, communities, or suburbs, libraries are widespread and easy to reach in many countries. The library system offers fixtures, fittings, and professional personnel, and investigations can extend the possibilities in library work, thus helping people stay connected through   technological   progress. Conclusion Libraries are unique public spaces that offer a wide range of media and access to digital services, even in rural areas . Having a wide range of resources and unrestrained access, and being a part of the public sector, libraries can also serve as places for the implementation of HRE. In addition to being a hub for education, libraries have also always taken on social tasks  and serve as  places for social interaction, which is urgently needed in times of increasing tensions around the world . They reach out to people of all ages, particularly children and young adults, giving them literacy skills and a place to spend their time, but are also committed to diversity , resisting  book bans ,  and are sites for political protest . By bringing together different educational settings and respecting users’ human dignity and HR, libraries are pivotal towards the broader implementation of the HR to HRE globally.

About the Authors: Param Kailash is a fourth-year student at Symbiosis Law School, Pune, with a strong interest in Private and Public International Law, International Relations, and Finance. An avid writer, he contributes insightful articles to various blogs and journals, analyzing contemporary legal developments across Corporate Law and related fields. He can be reached at parambkailash@outlook.com . Sudiksha Moorthi is also a fourth-year student at Symbiosis Law School, Pune, with a focus on International Criminal Law, White-Collar Crimes, and Financial Regulation. Passionate about legal writing, she explores key developments in both Indian and global legal landscapes through her contributions to various publications. She can be reached at sudikshamoorthi@outlook.com . First Resumption of the Seventh Session of the Assembly of States Parties at United Nations Headquarters in New York. Available here . Introduction The International Criminal Court (" ICC ") and other International Criminal Law (" ICL ") tribunals have been continually praised for their commitment to prosecuting perpetrators of  the most severe crimes . However, the ICL and human rights communities have sometimes displayed undue optimism towards the ICC, and have perhaps grown complacent with its failures. The application for arrest warrants  by Karim A.A. Khan KC before Pre-Trial Chamber I (PTC-1) against Benjamin Netanyahu, Yoav Gallant, and Hamas leaders for crimes against humanity and war crimes on May 20, 2024, has recently brought the ICC into the limelight. Scrutiny towards the role of the ICC was also furthered through the most recent arrest warrant issued against Iyad Ad Ghaly  for crimes against humanity and war crimes on June 21, 2024. These arrest warrants, aiming to symbolize a beacon of hope, fall drastically short when judged against the metrics of successful implementation. The ICC’s dependence on participation and cooperation by state parties to transfer wanted suspects into custody and follow Court proceedings warrants rightful doubt and fosters disbelief in the system. We argue that the ICC’s reliance on state parties and subsequent failures in executing arrest warrants, especially considering recent events in Palestine, expose the limitations of the Court’s functionality in modern global affairs. This reality risks leading to a post-mortem of the Court. Functional Implications – Modern-day Examples Despite measures to curb non-compliance, 30 individuals  against whom the ICC has issued arrest warrants remain at large  to date . Collectively, these perpetrators are sought for over 200 counts of crimes , including war crimes, crimes against humanity, genocide, and offenses against the administration of justice. Moreover, the Court issued seven of these arrest warrants over a decade ago . This persistent failure to execute warrants represents a notable oversight, undermining the ICC’s ability to prosecute individuals who pose a significant threat to the international community.   It is imperative to recognize that the crimes prosecuted by the Court do not occur in isolation; these crimes occur in broader contexts of systemic and extreme criminality intended to serve larger goals. For instance, the situation in Darfur has resulted in the deaths of hundreds of thousands of civilian lives and the displacement of 7.1 million people  in pursuance of ethnic cleansing against non-Arabs.  The failure to enforce arrest warrants undermines judicial authority, endangers witnesses and victims, compromises evidence, and fails to establish a deterrence mechanism. This inability to execute arrest warrants, even in cases considered ‘ dire by any metric ’ by the Office of the Prosecutor (“ OTP ”), involving crimes against humanity, war crimes, and genocide, calls into question the ICC’s relevance and authority.  There are numerous instances where suspects have visited states party to the Statute, only for the relevant authorities of such states to refuse to arrest them. For example,  Al-Bashir ,  the first sitting head of state ever indicted by the ICC, visited Djibouti, Nigeria, Chad, and South Africa - all parties to the Statute - without being transferred to the ICC. These visits occurred despite warrants for five counts of crimes against humanity, two counts of war crimes, and three counts of genocide.  The fundamental need for states to maintain diplomatic and trade relations with neighboring countries and trade blocs tends to override their obligations under international treaties. This dynamic has been demonstrated in cases such as Al Bashir’s and Abdel Raheem Muhammad’s, where the African Union’s decision  urged member states not to comply with ICC warrants. In both instances, Chad received Bashir and Abdel Raheem and attributed the non-compliance to failures in communication between its justice and foreign affairs ministers. However, ICC judges deemed this reasoning invalid and the ICC judges construed the avoidance as intentional . During this time, Sudan and Chad developed strong diplomatic ties and deployed a Border Control Force  along their common borders, which likely contributed to the non-execution of arrest warrants. Despite Chad’s non-compliance, the UNSC chose to take no action  against Chad, neither imposing consequences nor deterring other states  from engaging in similar behavior.    In addition to the non-compliance by state parties, the United Nations (" UN ") has also defied the ICC arrest warrants. For example, Ahmad Muhammad Harun was appointed to oversee the United Nations African Union Mission in Darfur (UNAMID)  despite an outstanding arrest warrant and facing 20 counts of crimes against humanity and 22 counts of war crimes  for his actions in Darfur, Sudan. Furthermore, in 2011, the UN facilitated his travel  within Darfur, completely disregarding the warrant.  The Rome Statute provides that non-compliance can be referred to the ASP or the UN Security Council. However, in all the communications made to the ASP and UNSC, no plausible enforcing mechanism  has been developed, and the Statute lacks clear guidelines or provisions to direct further action by the ASP and UNSC. As a result, suspects remain at large for decades, with no consequences for states that refuse to comply. This lack of enforcement and the ICC’s reliance on voluntary cooperation are weaknesses that have been criticized even by ICC judges themselves . Politics in the ICC One of the primary reasons for state party non-compliance is the political dynamics that influence the Court’s operations. The politicization of the Court was established with the introduction of the UNSC into the functioning of the ICC . The veto power of the United States in the UNSC raises doubts about the council’s reliability in contributing to the ICC, particularly given the tensions between the US and the Court that existed even before the Statute entered into force. The Rome Statute was adopted with the US voting against it , and the US has continuously resisted the Court through measures such as the Foreign Relations Authorization Act,  which prohibits any US financial support to the ICC, and the US’s abstention  from the vote to refer the situation in Darfur to the ICC. These dynamics render the execution of politically sensitive arrest warrants, such as the one against Netanyahu, nearly impossible. Historical precedents suggest that without significant structural changes to the ICC’s operations, instances of non-compliance will persist, undermining the Court’s credibility and effectiveness.  Recently, the U.S. has demonstrated its resistance to the ICC by threatening potential sanctions in response to the OTP’s application for arrest warrants against Netanyahu. Given the current geopolitical climate and the U.S.'s global influence, persistent non-compliance with the ICC could become the norm. This reluctance raises critical concerns, as the extensive powers of the Assembly of State Parties allow for the Court to be swayed by powerful or bloc-aligned states. Unless fundamental change is brought about to the operations of the ICC, these instances of non-compliance will repeat persistently. In a situation where Netanyahu’s arrest warrant is issued by PTC-1, especially considering the US’s unwavering support to Israel, previous records suggest execution of such a warrant is nearly impossible.  The Way Forward We suggest a two-fold mechanism to enhance the ICC’s judicial process: firstly, in absentia or remote proceedings ought to be established by the Court, similar to those adopted by the ICTY under Rule 61  of the Rules of Procedure and Evidence and the ICTR under Rule 82  of the Rules of Procedure and Evidence. These rules allow for in absentia proceedings, which permit the confirmation of charges and the trial and presentation of evidence in open Court without the accused being present. Although these provisions go beyond the current scope of the Rome Statute, we recommend implementing a similar procedure, at least to confirm charges at the pre-trial stage in exceptional circumstances such as the Bashir case.  Secondly, the ICC must effectively utilize its principle of complementarity by establishing a prosecutorial mechanism in collaboration with domestic judicial institutions. This system would enable the ICC to support local investigations and indictments, enhancing its capacity to address international crimes within domestic contexts. While these recommendations may strengthen the Court’s operational framework, challenges for enforcement, geopolitical biases, and international political dynamics suggest that international law will continue to struggle to overcome the inherent structural limitations and deliver consistent and impactful justice.  Conclusion International law and treaty obligations have become largely symbolic rather than practical due to a lack of political inclination to enforce them. The ICC’s reliance on state parties to execute arrest warrants has exposed significant flaws within its operational framework. Notwithstanding the Court’s noble intentions and the robust legal framework created by the Rome Statute, political and administrative challenges continue to obstruct the effective execution of the Court's judicial process. Persistent non-compliance and politicization of the Court have left over 200 counts of some of the most serious crimes unresolved, emphasizing the critical need to implement institutional reform. Without decisive action, the ICC risks fading into irrelevance in the realm of international justice rather than standing as its champion.

About the Author: Peter G. Kirchschlaeger is a Full Professor of Theological Ethics and Director of the Institute of Social Ethics ISE at the University of Lucerne, Research Fellow at the University of the Free State, Bloemfontein (South Africa), Visiting Professor at the Chair for Neuroinformatics and Neural Systems at ETH Zurich as well at the ETH AI Center (one of the world's largest hubs for research in the field of AI), and Visiting Fellow at the University of Tuebingen (Germany) which is closely linked with the Cyber Valley– Europe’s largest and leading center for excellence in AI and modern robotics. Prior, he was Visiting Fellow at Yale University (USA). In his research, he focuses on the ethics of AI and digital transformation, human rights ethics, and business ethics. He serves as a consultative expert on ethics for international organizations, institutions, and companies, and is, among other roles, the President of the Swiss Federal Ethics Committee on Non-Human Biotechnology. His latest books include: “Ethical Decision-Making” (2023) and “Digital Transformation and Ethics. Ethical Considerations on the Robotization and Automation of Society and the Economy and the Use of Artificial Intelligence” (2021). Prof. Dr. Peter G. Kirchschlaeger. Image by the University of Lucerne, available here . Artificial Intelligence and the Rights of the Child From an ethical perspective on children of today and children of tomorrow, traditional artificial intelligence (“ AI ”) and generative AI have profound positive and negative effects. AI affects, among other facets, human thinking and interaction, sciences and culture, education, information, and communication. Using the rights of the child as an ethical frame of reference  – which is protecting, for example, physical and mental integrity, freedom, autonomy, non-discrimination, and security – allows us to precisely identify the ethical upsides and downsides of AI. Too often, academic discourse on AI and the rights of children creates the following misconception: As the rights of the child are at stake, every single violation of children’s rights is ethically unacceptable. A violation of children's rights with or through AI cannot be outweighed by the positive ethical potential of AI in terms of children's rights. However, the following examples illustrate the positives and negatives of AI on children’s rights. For example, AI fosters a child's right – the right to education especially in this case – when AI and generative AI in the form of an individualized learning assistant are supporting children’s learning, development, and communicative skills . At the same time, violations of children’s rights to privacy and data protection are occurring because of these activities specifically in  “smart toys”  which generate and collect the data of children. The rights of the child are further under attack because AI and generative AI lead to an enormous increase of already existing and emerging sexually exploitative practices against children in the digital environment .  This causes a massive negative impact on children’s right to physical and mental integrity. Moreover, the negative impact of AI and generative AI on the mental health of children  is a violation of the children’s right to physical and mental integrity. With specific channels for children and with the rhythmizing of its programs, YouTube Kids and others strive for creating the obsession of watching as many videos as possible.  Beyond that, targeting children based on machine learning algorithms (e.g., on YouTube and YouTube Kids)  and collecting their personal data  is violating children’s rights to privacy and data-protection. This enormous amount of data – which allows to know children better as they know themselves – can then be used for political  manipulation (forcing children to think what one wants them to think politically)  and economic manipulation of children (by pushing children to consume what one wants them to buy) online  representing violations of the freedom and autonomy of children. Furthermore, age-inappropriate content is just a few clicks away or part of from automatic advertisements interrupting the transmissions . This lack of online security protecting children violates the children’s right to security .   Furthermore, algorithms and data are neither objective, neutral, nor fair . Algorithms and data, including decisions and actions by AI, have biases, for example, related to gender, skin color. These biases cause discrimination and exclusion. For example, an AI-learning assistant would evaluate due to its biases the performance of a child differently depending on the gender or the skin color of the child. This violates the children’s right to non-discrimination. In addition, the exploding digital divide  and the severe ecological exploitation by this technological progress due to its carbon impact contributing to climate destruction . Also,   the excavation of the necessary natural resources and the production of the technological applications destroy the environment and possess a carbon-footprint . Poverty as a consequence of the digital divide  and climate destruction in turn affect children’s suffering . Finally, AI reduces paid professional tasks for humans because – among other reasons – the main goal of the use of AI consists in the strive for efficiency by, among other factors, reducing costs through the replacement of humans (e.g., with automated check out in grocery stores); AI is made on purpose for the goal that always less to no human input will be needed; AI impacts in this way all professional tasks – not just the ones who require low or any qualification. This impact of AI on human labor causing a massive reduction of paid professional tasks  affects the rights of the child indirectly as they experience the negative socio-economic consequences as well as directly because only a minority of them will ever fulfill a paid professional task . As it stands today, the rights of the child are neither sufficiently respected, protected, implemented, nor realized in the field of AI.  United Nations (UN) Secretary-General António Guterres pointed out in the UN Security Council on July 18, 2023: “Generative AI has enormous potential for good and evil at scale... Without action to address these risks, we are derelict in our responsibilities to present and future generations.”  It represents the responsibility of humans to take urgent action ensuring that the ethical upsides of AI will be achieved and the ethical downsides will be avoided or mastered in order to allow the children of today and of tomorrow to flourish on a planet with a sustainable future. AI? Data-Based Systems (DS) A first step of living up to this human ethical responsibility for AI and to address the ethical dimension of AI embraces the critical examination of the term AI.  From an ethical perspective, in view of the nature of AI, doubts arise as to whether the term is even adequate. AI strives to imitate human intelligence, but this is limited to a certain area of intelligence (e.g., certain cognitive capacities). Among other areas of intelligence, in the domain of emotional and social intelligence, machines can only simulate emotions, personal interactions and relationships, and therefore lack authenticity.  For instance, one can train a healthcare robot to cry when a child patient cries, but no one would argue that the robot feels real emotions and cries due to them. On the contrary, one could train the same robot to slap the child patient’s face when the patient is crying, and the robot would perform this function perfectly. Beyond that, the healthcare robot cannot set ethical principles and norms providing normative guidance that slapping a child isn’t appropriate because of the lack of moral capability. One cannot ascribe machines with moral capability because they are presupposed by patterns and rules defined by humans and do not possess vulnerability, conscience, freedom, responsibility, and autonomy.  Therefore, the ethical quality of its action is not accessible to a healthcare robot. Humans need to train machines in ethical principles and norms revealing then the illegitimacy of this violation of the physical and mental integrity of the child patient.   The term “data-based systems (DS)” would be more appropriate than “artificial intelligence”  because the former describes what constitutes “artificial intelligence”: generation, collection, and evaluation of data; data-based perception; data-based predictions; and data-based decisions. Recognizing and acknowledging the core characteristic of DS allow more accurateness, adequacy, and precision in the critical reflection on DS. At the same time, humans possess the exclusive responsibility to identify ethical opportunities and risks of DS  precisely to allow children of today and tomorrow to flourish with their human dignity respected on a planet with a sustainable future. To guarantee the respect, protection, implementation, and realization of the rights of the child globally online and offline, in the domain of DS, the following concrete measures should be realized. Rights of the Child-Based Data-Based Systems (RCBDS) Rights of the child-based data-based systems (RCBDS) should ensure that the rights of the child serve as the basis of DS. In other words, RCBDS seeks to ensure that states and the private sector respect, protect, implement, and realize the rights of the child within the entire life cycle and value-chain process of DS (in the design, development, production, distribution, use, or non-use of DS because of rights of the child-concerns).  RCBDS also embraces the necessity to increase children’s participation in the opinion-forming and decision-making processes  to guarantee the rights of the child. International Data-Based Systems Agency (IDA) at the UN An International Data-Based Systems Agency (IDA) must urgently establish at the UN  as a global platform for technical cooperation in the field of DS. The IDA should serve to foster human rights including rights of the child, sustainability, safety, security, and peaceful uses of DS. The IDA should act as a global supervisory and monitoring institution, and as a regulatory authority in the area of DS responsible for access to market approval. Given the areas of convergence between DS and nuclear technologies both possessing ethical upsides and downsides, the International Atomic Energy Agency (IAEA) model would seem the most appropriate for responsible global AI governance as this model represents a UN agency with “teeth” because of its ability to enforce a regulatory framework respectively to sanction misconduct. There is a growing international and interdisciplinary network of experts calling for the establishment of RCBDS and IDA . “The Elders,” an independent group of world leaders founded by Nelson Mandela, have endorsed RCBDS and a global agency like IDA to monitor DS . The ideas of a human rights-based and legally binding regulatory framework and an institution enforcing global regulation of DS enjoy  the support of Pope Francis . UN Secretary-General Guterres also supports the creation of an international AI-watchdog-body like the International Atomic Energy Agency (IAEA): “I would be favorable to the idea that we could have an artificial intelligence agency …  inspired by what the international agency of atomic energy is today.”  He has called for a new UN body like an “International Data-Based Systems Agency IDA” to tackle threats posed by artificial intelligence in the UN Security Council on July 18, 2023 . On July 14, 2023, the UN Human Rights Council unanimously adopted its latest resolution on “New and emerging digital technologies and human rights”  which included for the first time an explicit reference to AI as it relates to promoting and protecting human rights. The resolution emphasized that new and emerging technologies with an impact on human rights “may lack adequate regulation” . The resolution highlighted the “need for effective measures to prevent, mitigate and remedy adverse human rights impacts of such technologies” . It stressed the need to respect, protect, and promote human rights “throughout the lifecycle of artificial intelligence systems.”  The resolution called for frameworks for impact assessments related to human rights; due diligence to assess, prevent, and mitigate adverse human rights impact; and effective remedies, human oversight, and accountability. In other words, from a human rights perspective including the rights of the child, DS impact human rights including the rights of the child. Therefore, the design, development, and production, and use of DS must respect of human rights and rights of the child.  On March 21, 2024, the UN General Assembly unanimously adopted a resolution, “Seizing the opportunities of safe, secure and trustworthy artificial intelligence systems for sustainable development.”  The resolution emphasized: “The same rights that people have offline must also be protected online, including throughout the life cycle of artificial intelligence systems.”  Now, it is urgent for all UN member states together with the private sector to implement and build on the resolution of the UN General Assembly to live up to their responsibility to present and future children.

About the Author: Elena Namli is Professor of Theological Ethics at Uppsala University, Sweden. Her research focuses on social and political ethics. Her publications include Human Rights as Ethics, Politics, and Law ( Human Rights as Ethics, Politics, and Law ), Jewish Thought, Utopia and Revolution ( Jewish Thought, Utopia, and Revolution | Brill ), Mänskliga rättigheter i det offenliga Sverige (Human Rights and the Swedish State, co-editor, 2017), Future(s) of the Revolution and the Reformation ( Future(s) of the Revolution and the Reformation | SpringerLink ), Legal Positivism, Politics, and Critical Ethics (forthcoming at Lexington 2025). Professor Elena Namli. Image provided by Elena Namli. Human rights are many things. They are the legal protection of individuals against state power. They form the international regime to encourage states to respect the subjective rights of people. Whenever people lack claimable rights, human rights can be used as justification to demand change. These three dimensions of human rights are revolutionary as compared to the traditional settings of power relations because they restrict state power by claimable rights. However, like any other man-made legal instrument, human rights may be manipulated to serve those in power. As political realists clearly demonstrated , human rights cannot be separated from material interests of political agents who seek to sustain and extend their power. Human rights are an attractive ideological instrument for those in power. So, how should proponents of human rights respond to this ambiguity of human rights? I believe that we should take the critique of human rights very seriously and look for resources to uncover merely ideological usage of human rights. When do human rights protect people? When are they perverted into an ideology? Let me address these questions focusing on the context of the rights of the child, more precisely the discussion of duty-bearers of the rights of the child. Expansion of duty-agency as a demand to strengthen the implementation of rights The classical approach to duty-bearers within human rights law stipulates that nation-states hold human rights obligations toward individuals and minorities. Human rights law is expected to enforce fundamental moral principles of how legitimate state power should be exercised. There is, however, a current trend within human rights practice and academic discourse that differs from the classical approach; it extends the duty-agency of human rights beyond nation-states. For example, transnational companies and non-governmental organizations  are considered duty-bearers in the context of human rights. The main rationale behind the expansion of duty-agency is a plausible demand to strengthen the implementation of human rights. Most nation-states are not exclusive power possessors, and if we want to efficiently protect people, duty-agency in human rights regimes must be recognized by actors other than states. This thesis is widely discussed and debated in several contexts–from the context of “responsibility to protect” to that of “corporate responsibility  to protect human rights.” Many relevant and thought-provoking arguments are presented by both proponents of the expansionism of duty-agency and its critics. Less attention has been paid to scrutiny of the expansionistic trend within the context of the rights of the child, or so I claim. For many theorists and practitioners of children’s rights, the recognition of parents, families, and communities as duty-bearers appears natural. The United Nations Convention on the Rights of the Child (CRC) already mentions the responsibilities of families and communities in the preamble . Although the document does not describe these responsibilities in terms of human rights duties, it is possible to interpret the convention in an expansionist manner. I do not think we should move in that direction. Instead, we should sustain the classical approach to human rights by distinguishing human rights agency sensu stricto  from other types of legal and moral agency. States should be viewed as duty-bearers of the rights of the child. Parents, families, and communities do have moral and legal responsibilities and duties toward children, but these duties differ from the direct duties of a human rights agency. In my view, the distinction between direct duty-bearers of human rights and those who are bound by other types of legal and moral obligations prevents two serious types of misuse of human rights: the first is a tendency to regard states as guardians of human rights, which in turn is understood as personal morality. The second is a proclivity to use human rights law and morality as the legitimization of discriminatory practices against minorities. Let me elaborate on these trends. Expansion of duties – is the state a guardian of human rights morality? My thesis is that the expansionism of human rights duty-bearers comes with disproportional costs – at least in the context of the rights of the child.  One significant cost is that of states behaving as guardians of people who are supposed to endorse human rights as their personal morality. While the classical model of human rights protection regards states as potential violators, many expansionist models view human rights as a (universal) personal morality that states have a responsibility to sustain. Let us take an example. Consider a case of education initiatives that a state supports to strengthen children’s human rights. Within the classical model of human rights protection, such education should be mandatory for state officials whose actions might impact children’s lives. Additionally, children, as holders of claimable rights, should learn how to claim rights when they are not respected. To implement such an education is to take human rights seriously because it presupposes that the rights of the child are  subjective claimable rights. Duty-bearers must recognize their duties and offer transparent possibilities for children to claim their rights.  Naturally, most states fail to secure children’s rights to the extent the classical model of human rights protection expects them to. In Sweden, for example, most state officials lack knowledge of their responsibilities under the CRC, and existing educational programs on human rights for state officials, with a few exceptions, are optional. At the same time, children’s rights are taught at school and this particular education is mandatory for all . Because children in Sweden lack practical possibilities to claim most of their rights against the state, human rights education focuses on protection against domestic violence and rights as personal moral values. The curriculum for Swedish schools stipulates that human rights are values that should be endorsed by educators and promoted among children.  Obviously, it is important that children learn how they can be protected by the state if their families abuse them. Neither is it wrong to discuss human rights as a kind of morality persons can endorse. However, most serious human rights issues remain invisible for both teachers and children in Swedish schools. There are gaps surrounding how one can use human rights as a tool if a child and their family are discriminated against with regard to education, housing, or medical care. What kind of human rights legislation exists in Sweden, and what kinds are missing? What do international bodies say about the protection of children’s rights in Sweden? These questions are fundamental for human rights protection because they focus on the state’s obligations and citizens’ right to be critical of institutions.  Although most educators in Sweden are motivated by a genuine will to protect children, they, in practice, redirect human rights from being an instrument of control over state power to one of personal morality. Such a move weakens human rights if we want them to protect people. Even more serious is that this move serves those political actors who wish to get rid of human rights as a culture prescribing moral obligations to states and justified claims to all persons. Nationalists, such as Sweden Democrats, for example , happily proclaim human rights as “personal values” that the state is the main guardian of. They are much less positive about the international human rights law demanding the Swedish state to implement human rights  through institutions.  I am convinced that the view of human rights as personal values that states are entitled to be guardians of is a perversion of human rights, which in practice reclaims a pre-modern understanding of the relationship between states and citizens. In a modern democracy, citizens are free to endorse different moral values while the exercise of state power is bound by human rights principles.  My argument against the expansionist approach toward human rights duty-bearers does not imply that other actors than state officials cannot be legally bound in order to implement the rights of children. When protective regulations are legislated and enacted through legal systems in different states, they should and do involve many actors, parents, and other guardians. Such regulations demand obedience to law as law, i.e. even if citizens do not endorse political and moral legitimization of particular legislation. For example, the prohibition of corporal punishment of children , enacted in Sweden in 1979, does not demand parents and teachers to embrace human rights as their personal moral values. What it does demand is that the law is obeyed by all, regardless of their value preferences. Such preferences are simply irrelevant when corporal punishment of children is regarded as violence.      To sum up my argument thus far, the expansionism of duty-bearers of human rights risks weakening the right of the child by presenting the state as the guardian of the moral values of citizens. Additionally, the classical human rights model includes the prohibition of discrimination, meaning when states legislate and implement human rights, they are expected to do it without discrimination. Unfortunately, defenders of the expansionism of human rights duty-agency often overlook discrimination as a significant side-effect of their position. Let me now elaborate on this.    Expansion of duties and the risk of discrimination Proponents of the expansionism of human rights duty-agency rightly believe that many actors other than states have power over people, and therefore risk treating people inhumanly or unjustly. However, the normative conclusion they draw from this descriptively correct observation is wrong. In the context of children’s rights, to treat other agents as we treat states is to overlook important differences in power relations.  For the sake of argument, let us consider the example of democratic states in times of peace. States are legally and morally obligated to protect children’s rights. They are expected to secure this protection by democratic legislation and implementation of such legislation. Moreover, the classical human rights model demands the non-discrimination clause to be observed by both legislators and state officials.  The already mentioned legal prohibition of corporal punishment of children in Swedish law is a good example of human rights legislation within the realm of what I call the classical paradigm of human rights and duties. This prohibition is general, and it applies to both public and private spheres. The prohibition of corporal punishment is justified  by the belief that such punishment constitutes violence regardless of how this punishment is rationalized. Thus, the law does not point out any particular legitimization of corporal punishment, but secures human rights of children by the categorical prohibition of the very practice.  Currently, many proponents of human rights pay attention to the traditions and practices that they believe are both specific to particular groups and seriously violate human dignity. For instance, many activists of human rights in the Global North believe that cultures of some Muslim and Roma minorities are more patriarchal and more abusive towards women and girls than cultures of majoritarian populations in Western democracies. As a consequence, they demand particular types of human rights legislation to protect members of minority groups, mostly young women and girls, from other members of these groups who, presumably, are violators of human rights.  In Sweden, a particular “honor-related oppression” ( hedersförtryck ) clause was introduced in the Swedish Penal Code in 2022 (2022:310). The aim was to protect young women and girls (mostly, but not exclusively) exposed to patriarchal control and violence. According to this new regulation, criminal offenses are regarded as more serious  whenever they are committed with the protection of “family’s, relatives,’ or a similar group’s honor” as a motive.  In clear contrast to the prohibition of corporal punishment of children, this regulation is designed to counteract a particular culture of patriarchal control presumably endorsed by what the legislator depicts as “ collectivistic cultures .” It is presumed that “honor-cultures” exist among some minorities which do not respect individuals’ freedom of choice presumably endorsed by the majority population.  Although the law does not single out particular minorities, it constitutes indirect discrimination of minorities already exposed to racism, such as Muslims and Roma, in practice. There is no doubt that many activists behind the legislation against “honor-related oppression,” such as the NGO “Never Forget Pela and Fadime,” are motivated by a genuine desire to protect girls and women. And yet, they point out wearing a hijab is a sign of the “honor-culture”. Tips för dig som arbetar med barn och unga | Riksorganisationen GAPF    Does this mean that states cannot restrict the exercise of minority traditions when they risk to violate human dignity? I believe that states can. Most importantly, they can do it without discrimination. The state is obligated to defend women and girls from abusive and violent forms of social control. However, if we believe that such a defense demands an increase in severity of a punishment for crimes, it should be introduced in a non-discriminatory form.  In defense of the classical approach to human rights The aim of my defense of the classical model of human rights is not to idealize this model. For different reasons, states fail to protect people and they will continue to do it. Yet, for proponents of human rights, it is most reasonable to sustain the classical view of states as duty-bearers, and individuals and minorities as subjects of human rights.  This classical model is realistic in that it does not imply that whenever states take human rights seriously all forms of violations of dignity are eliminated. Although human rights are a revolutionary type of legal regulation of the relationship between the state and people, they are not the solution to all forms of injustice and to the deficit of freedom.  It seems to me that the expansionists who challenge the classical model tend to expect too much of human rights, which in practice weakens the capacity of human rights to restrain the power of the state. This becomes most clear in the case of the rights of the child. Although parents, families, and communities do have legal and moral obligations toward children, they are not bearers of human rights duties. This is because human rights introduce a historically novel and radical asymmetry between states as duty-bearers and people as rights-holders. Every human, regardless of their social and moral status, has legitimate claims toward the state, while the state is under legal constitutional obligation to respect these claims. The expansionist destabilization of this asymmetry, even when motivated by the desire to achieve stronger protection of individuals, risks to restore a pre-modern view of the state as the guardian of people’s morality.  Although realistic in its view of the state, the classical model of human rights is compatible with the desire to strengthen the implementation of human rights, naturally involving many actors other than state officials. Stronger protection of human rights can be achieved by a combination of ordinary non-discriminatory legislation and vital public discourse on concrete forms of injustice. In the case of the rights of the child, we should add that minorities must be treated as legitimate participants in democratic deliberation on human rights law, in turn influencing the formal process of legislation.

About the Author: Vaishnav M. is a BA LLB (Hons) student at the National University of Advanced Legal Studies, Kochi, India. His interests span international law, constitutional law, political philosophy, and public policy. He is a junior editor at the NUALS Law Journal. He is extremely grateful to Dr. Balakrishnan K. for reviewing earlier drafts of the piece. In March 2023, the United Nations General Assembly (UNGA) requested the International Court of Justice (ICJ) to issue an advisory opinion on climate change obligations of States. The proceedings are ongoing, and the ICJ’s formal opinion is expected by late 2025 . In May 2024, the International Tribunal on the Law of the Sea (ITLOS) issued an advisory opinion affirming the legal obligations of States to protect the ocean from climate change under the United Nations Convention on the Law of the Seas ( UNCLOS ). The ICJ has its work cut out. It should not forget that the impact of climate change is disproportionate , and the climb towards addressing climate change is steeper for some countries than others . Against the backdrop of the proceedings, the emergence of peremptory norms of general international climate law (GICL) is an eventuality that cannot be overlooked. Peremptory norms or jus cogens are the foundational principles of international law that no State can violate. Today, it includes the prohibition of genocide, slavery and piracy, the right of self-determination , and the principle of non-refoulement ( Allain , see page 539), among others. In 2023, a study commissioned by the European Parliament recognized the possibility of certain GICL norms rising to the status of jus cogens . In light of the 2023 study and the ICJ proceedings, this article draws on Third World Approaches to International Law (TWAIL) to analyze the potential role of peremptory climate norms in promoting equitable solutions to combat climate change. TWAIL aims to normatively analyze contemporary international law and its colonial-imperial undertones to contextualize the exploitation of Third World countries. Based on this analysis, there is a fair possibility that peremptory climate norms may act against the interests of the Third World. This possibility raises some imminent questions that require the attention of the TWAIL scholarship in the coming years.   Peremptory Norms in International Law: A TWAIL Reading A peremptory norm or jus cogens is an overriding principle of international law that constitutes the ideals of international public policy and the “ rules o f international morality . ” Jus cogens was codified in the Law of Treaties (Article 53) and in the Law of State Responsibility (Article 26), meaning no treaty can violate these basic norms and that the violation of peremptory norms is a wrongful act. Jus cogens can be seen as an instrument along the lines of the UN Charter and the Nuremberg Principles , introduced to give a new basis to the post-WWII international legal system. Some scholars have also associated jus cogens with international constitutional law and human rights law . There is a vast literature characterizing jus cogens as a tool to enforce international human rights law where the conventional and the customary laws fail to intervene. Most importantly, though, it was seen as a tool for Third World countries to combat the colonial structure of international law and the imperialist forces nourished by it. However, jus cogens is yet to uphold its potential as an anti-colonial weapon . Except for the right of self-determination, jus cogens consists of negative obligations that only concern formal equality . In formal equality, where all sovereigns are considered equal , international law takes a neutral shape but overlooks the underlying racial stratifications. As a result, peremptory norms risk being ineffective in addressing the structural disparities and the substantive inequalities punctuating international law. Moreover, Western skepticism towards jus cogens has limited the volition of the International Court of Justice (ICJ) in employing it as a window to protect Third World interests. Peremptory Norms in Climate Responsibility: Need for Caution In 2023, a study commissioned by the European Parliament titled “The Normative Status of Climate Change Obligations under International Law” posited that a few climate law norms may qualify as general international law norms, giving rise to what they termed the “general international climate law.” More significant to the current discussion, the study also recognized the potential emergence of peremptory norms within GICL. The study identifies the possibility of the due diligence principle being considered a peremptory norm. Due diligence refers to countries’ duty to take reasonable steps in good faith to contribute towards achieving climate goals. As mentioned before, during the formative years of the concept of jus cogens , Third World countries approached the concept through the ideals of decolonization and “anti-imperialist universalism,” only to be disappointed later . Nevertheless, the potential of peremptory climate norms to effect change holds great promise for the Global South. The most pertinent case is the emergence of the principle of “common but differentiated responsibilities and respective capabilities” ( CBDR-RC ) as a peremptory norm. This principle recognizes the asymmetric responsibilities and capabilities of different States and seeks to conceive climate responsibility in terms of equity and fair moral desert . Despite the significance of the CBDR-RC principle, developed nations have obstructed its effective implementation. For instance, deviating from the principle, the United States went on to impose binding obligations on Argentina , while it was failing to meet its own targets. Previously, the United States has pushed to undermine the principle’s legal status under Article 3(1) of UNFCCC and frame it as an assistive tool for interpretation, thus preventing the principle from being included in the customary international law. Today, the CBDR-RC needs to be rejuvenated and redefined to affirm its position as an overriding principle. Hence, the possibility of raising it to the status of a GICL norm and further as a peremptory climate norm appears promising. However, there is a possibility of the dominant nations resisting the establishment of the CBDR-RC principle as a peremptory norm. For example, the dominant countries can readily point to the lack of consensus regarding the principle. The nature and substance of the principle are highly contested: while some argue that the differentiated responsibility is rooted in economic development, others posit that it is based on the contribution to environmental degradation ( Rajamani , see page 420). They can also point to the looming gaps associated with peremptory climate norms, which include challenges in assigning responsibility between developed and developing nations and the practical difficulty of fixing the historical responsibility of the developed nations. Further, Western skeptics often reference the principle as a “free ride” for the poor nations, which can impede people’s perception of CBDR-RC and its emergence as a peremptory climate norm. Above all, from a conceptual angle, the application of jus cogens in GICL is problematic because peremptory norms are considered and applied only in times of crises, and not otherwise. Jus cogens has primarily come to be associated with humanitarian crises, often overlooking crucial economic and social rights. This is known as the “ crisis temporality ” of jus cogens . The way jus cogens focuses on crises and overlooks current actions that could lead to future crises does not sit well with climate law. That is, climate law is designed to ensure compliance with a set of elementary obligations that together help in alleviating climate change. This is distinct from jus cogens, which springs into action only at times of crisis (and not mere violations of certain duties). To overcome this gap, the violation of peremptory climate norms would have to be determined based on a country’s current performance of due diligence obligations and not based on the consequence of that country’s act(s) in the long run. The ITLOS also acknowledged this point in its advisory opinion . (¶441(3)(c)). Nevertheless, defining the violation of peremptory norms based on due diligence is worrisome for Third World countries. Here, one must draw a faint yet pertinent analogy with humanitarian interventions. Western nations have defined what human rights are and which situation warrants intervention. These interventions have enabled Western nations to maintain their control over postcolonial States ( Anghie , see page 749). Similarly, when these dominant countries decide what constitutes due diligence, they decide what constitutes derogation from peremptory climate norms. Therefore, the rise of peremptory climate norms may only worsen the power imbalance in the climate change battle . Conclusion Today, it is difficult to predict when and in what context peremptory climate norms will emerge. However, Third World countries at the harsh end of this climate change combat must be cautious. Jus cogens ’ failure to act as an anti-colonial tool of general international law and its subsequent usurpation by dominant countries to entrench colonial power distribution must not be repeated in the case of climate law. Ultimately, this article does not call for an iron wall against the emergence of peremptory climate norms. Instead, it invites TWAIL scholars to address two critical questions: How can the Third World resist the dominant powers from usurping peremptory climate norms? How can the Third World leverage the same peremptory climate norms to highlight the asymmetric responsibilities and capabilities of countries in combating climate change? These questions align well within the TWAIL framework and have broad implications for streamlining the TWAIL scholarship in climate law in the years to come.

Taken too far? Source countries’ recent trend of overreaching their cultural ownership claims could dilute the argument for respecting foreign patrimony laws. About the Author: Eleanor Iris Gartstein is a first-year law student at Berkeley Law with a passion for art history and its intersections with international law. Eleanor's particular interests lie in topics surrounding cultural heritage and art repatriation. Palmyra, Syria. Image by Shutterstock, available here. There are three consistent truths to the black art market: it is unregulated, it is increasingly lucrative, and it harbors a never-ending stream of demand. The sheer scale and scope of antiquities trafficking is undeniable. Source countries such as Italy, Greece, and Turkey, distinguished by their archaeologically rich histories, have consequently suffered the brunt of the harm caused by this now highly organized practice. Site looting and destruction are paramount concerns to the governments of these source countries. As a result, many nations have one-by-one implemented patrimony laws, which vest ownership in the state of any cultural property discovered after the date of enactment. By declaring found antiquities as government property, private ownership and their export is thus prohibited. While the black art market may see an endless stream of demand, it is its supply that patrimony laws seek to restrict. Egypt presented the first example of this in 1891, and patrimony laws have since come to play a pivotal role in international law. Patrimony Laws in Action: Enforcement in the United States Any instance where a law attempts to regulate outside its territorial borders brings a fundamental question of enforcement. In the case of the United States’ approach, criminal legislation has come to work alongside civil law as a method towards enforcing patrimony. National Stolen Property Act The National Stolen Property Act (NSPA) of 1934 operates as the primary vehicle for criminal prosecution of cultural property crimes in the United States. It prohibits the transport or receipt of any foreign commerce valued at $5,000 or more if the individual knows the goods are “stolen, converted, or taken by fraud.” But how can a federal court’s jurisdiction be expanded to apply the NSPA to violations of foreign patrimony? In a 1977 case involving the illegal export of pre-Columbian artifacts from Mexico, the Fifth Circuit officially addressed this question. It ruled that U.S. courts must recognize, if deemed valid, foreign laws vesting ownership of heritage objects. The resulting McClain doctrine established four criteria for determining a foreign patrimony law’s validity, and thus enforceability, in U.S. courts: (1) The law must be “clear and unambiguous”; (2) the law must be more than a mere export restriction; (3) the property at issue must have been found within the modern boundaries of the country asserting ownership; and (4) the property must have been discovered after enactment of the law. All this together makes it so that where the act of importing stolen property triggers the NSPA, and a foreign government has a justified claim of ownership under the McClain doctrine, countries are able to assert their patrimony laws in U.S. courts and prosecute for its violation. Cultural Property Implementation Act The NSPA operates alongside the Cultural Property Implementation Act (CPIA) of 1893, which grants the United States authority to enter into bilateral cultural property agreements with signatories of the 1970 UNESCO Convention. In fact, countries cannot benefit from the protection provisions of the UNESCO Convention unless they seek and receive a bilateral agreement of this kind with the United States. Rather than include a blanket ban on the import of stolen cultural patrimony, like Germany or the United Kingdom has, the CPIA enables the U.S. to impose import restrictions for a designated list of illicitly traded material determined to be under threat of looting. To qualify for this protection, a country has to demonstrate (1) their cultural heritage is at risk, (2) they have taken reasonable steps to address that risk, (3) U.S. aid is necessary and likely to help, and (4) alternative measures would not suffice. Only then will the United States agree to ban the import of certain items and artifacts. The CPIA does not come without criticisms; in its 40 years of existence, only 30 total bilateral agreements have come to fruition, with two currently expired. By choosing to put the onus on the foreign government to seek out such agreements, the United States stands as an outlier in its approach to deterring cultural theft. Should the United States follow the lead of other countries that prohibit suspicious imports automatically? Is this perhaps the preferred route for effectively combating the black art market? Diverging Theories of Ownership: Source Countries vs. Museums If there is one thing the potency of debate and unanswered questions surrounding cultural heritage indicates, it is that there are endless viewpoints within the field. With so much existing divergence in cultural property perspectives, the line between right and wrong can easily become muddled. The Museum Point of View Encyclopedic museums have been commonly cast as the “bad guys” within the sphere of cultural ownership, profiting off the horrors of the past with their extravagant worldly collections. While museum conduct certainly has its flaws, not all instances of museum acquisition should necessarily be seen as villainous by the public. Western institutions stand behind the prevailing belief that cultural property is best placed within their walls. The museum perspective is that they promote a cosmopolitan worldview and facilitate greater cultural understanding through their advanced resources, general accessibility, expertise in conservation, and technology. While the use of courts against major museums is a useful avenue towards enforcing foreign patrimony, museums do serve a civic purpose that should not be entirely shortchanged due to shifting attitudes toward history. The Source Country Point of View Source countries, on the other hand, view cultural property as an embodiment of their community. The “country of origin” argument stresses that removing objects from their origin and decontextualizing them is detrimental to our understanding of the past. Establishing rightful ownership for objects from vast ancient civilizations according to modern-day borders, however, comes with inherent contradictions. UNESCO has defined cultural property as the “common heritage of mankind.” If this definition is to be followed, are political and territorial boundaries even relevant to cultural heritage? Even if so, are there instances where countries attempt to use their patrimony laws on an illegitimate basis? While there is assuredly deep sympathy in source countries’ pursuit to preserve their heritage, some instances of demands for return on the basis of “patrimony” have presented less obvious, more questionable contexts. The Risk of Overreach: Italy as a Case Study Indicative of this is the recent exercise of Italian patrimony laws, which have been characterized as particularly strict. The Italian government has taken a rather aggressive stance to their claims of cultural ownership, seeking the “return” of arguably more than they’re owed. The Italian Cultural Heritage Code has even been used to bar icons of art history from the public domain, as illustrated by the legal disputes over the use of Leonardo da Vinci’s Vitruvian Man and Sandro Botticelli’s Birth of Venus. This trend seems to point to Italy having created its own, rather overinclusive, definition of “Italian ownership.” The Getty Bronze A prime example of this is the Getty Bronze, a Greek sculpture that has come to be the subject of a relentless, ongoing ownership dispute between the J. Paul Getty Museum and Italy. Officially titled the Victorious Youth, the sculpture was first recovered in 1964 from a shipwreck in the Adriatic Sea by Italian fishermen. Note that this sculpture is Greek and was discovered underwater, not on Italian soil. Nevertheless, Italy has claimed the sculpture to be their rightful property under its 1939 cultural patrimony law. They have spent the last several years demanding it be deaccessioned from the Getty and returned to them. This particular context brings a rare scenario where restitution would not right an extreme injustice of the past. The moral and ethical grounds that typically motivate a call for return are lacking here, leading me to believe that Italy may be overreaching with its patrimony laws here. Accidental discovery by Italian citizens does not equate to making it an Italian object. With only an incidental connection to the country, it is hard to see how Italy can make the argument that the Getty Bronze embodies their culture and rightfully belongs there. With no “country of origin” basis for patrimony, this looks to be more of an attempt at acquisitive patrimony. Potential Impact While instances of overreaching ownership may make up only a small portion of claims, they do bring a high risk of diluting international respect for foreign patrimony laws of other countries. In an already adversarial world, this can only ignite the flames of ongoing debate. There is no doubt that source countries have disproportionately suffered from the atrocities of cultural theft and destruction. Enacting patrimony laws to function as the basis for rightful ownership surely makes sense, but only if executed properly. Rather than using a law set by oneself as an all-encompassing claim for cultural ownership, source countries must focus their advocate efforts only on legitimate patrimony claims. Otherwise, we open the floodgates to unwarranted repatriation requests and further alienate the museum community.