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- Sovereignty and Stalemates: Rethinking the ICC’s Struggle with State Non-Compliance
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.
- Artificial Intelligence – an Analysis from the Rights of the Child Perspective
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.
- Education about Human Rights is a Human Right and Public libraries should be mandated to fulfill the public task of Human Rights Education
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. 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.
- The Duty-Bearers of the Rights of the Child
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.
- The Rise of Peremptory Climate Norms: A TWAILian Cautionary Note
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.
- The Pursuit of Preservation through Patrimony Laws
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.
- The Collapse of the Coup-Proofing Mechanism of AU & ECOWAS
About the author: Weifeng Yang (J.D. Candidate, Class of 2025) is an Assistant Contributor. His interests include administrative law, EU law, and international and comparative law. Weifeng holds a B.A. in Government and History and a Master of Public Administration from Cornell University. Before law school, Weifeng interned at Human Rights Watch Asia Division. He is a native Mandarin Chinese speaker. Joint military exercise of the U.S. and ECOWAS member states to increase the forces' capability to conduct AU/UN mandated Peace Operations. Image by U.S. Army Southern European Task Force, Africa, available here. African Union and ECOWAS's reputation of coup-prevention Polity in Africa is often considered unstable and plagued with coups in the popular imagination. As early as 1966, just years after most African states gained independence, the European characters in Ousmane Sembene's "Black Girl" would refer to governments in Africa as "come and go" and predict Senegal may soon follow suit (ironically, Senegal has never experienced successful coups). Such categorization bears some truth. Africa accounts for 106 out of the 242 successful coups since 1950, more than any other continent. However, the situation becomes very different when looking at the years after the formation of the African Union (AU) in 2002. A comprehensive research comparing instances of successful coups in Africa (1950-2014) before and after 2002 showed a 58% reduction in the occurrence of coups and attempted coups. Some studies attribute this decline to a post-Cold War global paradigm shift against unconstitutional methods in the transition of power, while others look to regional international organizations, such as the African Union, adopting more robust anti-coup mechanisms as the reason. Indeed, unlike the Cold War years of the Organization of African Unity (OAU), where coup leaders are regularly welcomed into the fold, the AU has an explicit anti-coup mechanism in place, culminating in the adoption of the "African Charter on Democracy, Elections and Governance," where Article 23 explicitly authorized the Union to draw "appropriate sanctions" against "any putsch or coup d'Etat against a democratically elected government." We have seen such suspension of AU membership regularly implemented in the intervening years, from Egypt after the 2013 coup to the recent Niger coup last year. Among the regions with the most drastic improvement is West Africa, where the vast majority of the successful coups during this period occurred. The regional grouping, the Economic Community of West African States (ECOWAS), has emerged as a surprising success story in turning such a volatile region around. Under its auspice, ECOWAS conducted a series of largely successful military interventions of its member states to restore constitutional order in all forms of crisis, from intervening in civil wars (Liberia in 1990 and 2003, Sierra Leone in 1997, Ivory Coast in 2003), to coup prevention (Mali in 2013), and even to depose a sitting president who refused to vacate the office after losing the presidential election (The Gambia in 2017). Indeed, with the 2017 intervention that deposed Yayha Jammeh from the presidency, all member countries but Togo operate under a civilian-elected government. The Re-emergence of Coups: Two Prevailing Theories The situation has significantly deteriorated since 2020. From the 2020 Malian coup, seven countries -Guinea, Mali, Burkina Faso, Niger, Chad, Sudan, and Gabon- have experienced nine coups, with Mali & Burkina Faso each suffering two, in 3 years. Four of these countries & six of these coups occurred within ECOWAS member states. Indeed, despite all countries except Chad having their AU & ECOWAS membership suspended, we still faced a historic and absurd number of suspended member states. This state of emergency is reflected in how ECOWAS, in reaction to the Niger coup, drew an initial hardline position that threatened military invasion as it sensed its reputation in coup-proofing had been exposed in abject failure. In reaction to these quick developments, two theories quickly emerged to explain this sudden failure in AU & ECOWAS's institutional ability to prevent military coups. The first theory is that civilian governments do not produce the "democratic dividend" many citizens of African states hoped democracy would bring. Years of incompetence in governance by longtime dictators in many of these countries were followed by democratization, only for the first generations of democratic leaders to be lackluster in their governance. In Guinea, following longtime dictator Lansana Conté's death in 2008, Alpha Conde, a leading opposition leader, was elected president in 2010, marking the first peaceful transition of power in Guinea's history. The newly-elected Conde, however, led a corrupt regime, amended the constitution to allow for a third term, and pursued such a term in 2020, only to be overthrown in a military coup the following year cheered by the crowds on the streets of Conakry. Similarly, in Burkina Faso, the security situation worsened significantly after the former dictator Blaise Compaore was deposed in the 2014 uprising. Another reason proposed is that the "coup-proofing" strategy of AU and ECOWAS had been conspicuously selective in its anti-coup mechanism against only military but not "constitutional" coups. The term "constitutional coup” means mainly "self-coup": extra-constitutional measures, including outright abrogation or suspension of the constitutional order and radical changes to the constitution that break the democratic spirit made by the incumbent government rather than by mutinied soldiers. Examples include President of Tunisia Kaies Saied's action to dissolve the government and enact a state of emergency, presidential attempts at running a third term across the continent from Guinea to Rwanda and from Central African Republic to Zambia, and open attempt at electoral fraud to keep deeply entrenched authoritarian regimes from Angola's MPLA ruling since 1975 to Equatorial Guinea's President Obiang ruling since 1979. None of these actions were met with any sanctions from AU or ECOWAS. One out of nine coups in the past three years (Chad) did not face any suspension because it was perceived to be an effort to keep the power within the president's family after the unexpected death of President Idriss Deby, with his son Mahamat Deby succeeding him. Such hypocrisy eroded the legitimacy of AU & ECOWAS in coup prevention, as the populace will perceive them as merely part of a larger effort to support the status quo rather than for democracy. The Lack of "Supranational" Apparatus in ECOWAS and AU Beyond the two theories above, I propose that ECOWAS and AU remain woefully un-supranational despite their seeming aggressiveness in enforcing norms beyond national sovereignty so that they remain principally more a "president's club" than a supranational union like the EU. In this way, they cannot enforce principle-driven policies beyond the interests of the executives of its member states. This applies both on an institutional and a personality level. On the institutional level, neither AU nor ECOWAS has effective “union-level” institutions that make them true autonomous bodies regarding policy matters. At a glance, the AU Commission and the ECOWAS Commission seem similar to the European Commission, as all three Commissions are appointed by their respective head-of-state collegiate body, thus subjecting them to member state's leaders, while operating a full cabinet-like executive that, in principle, should serve Union rather than their own member state's interest. In practice, however, the European Commission has far more autonomy from the European Council than their African counterparts. Principally, the European Commission possesses exclusive lawmaking initiative like a cabinet in a parliamentary democracy, meaning that the collegiate Council acts more like a check on the European Commission's power rather than the lead in Union matters. This differs significantly from the institutional practice in AU and ECOWAS. The Assembly, AU's head of state collegiate body, dominates the agenda, while ECOWAS's Chairman of the Authority of Heads of State remains the operative lead in ECOWAS activities, demonstrated by then-Chairwoman and then-President of Liberia Ellen Johnson Sirleaf's leading role in the 2017 intervention of The Gambia, as well as the current Chairman and President of Nigeria Bola Tinubu's active role in the ongoing Niger intervention. In practice, the Commission of AU and ECOWAS act more like a managerial body, more akin to the UN Secretariat than a federal government. Indeed, the seemingly shocking power to sanction and militarily intervene in member states, as demonstrated by the various missions of AU and ECOWAS, projected a façade of supranationalism in these two organizations. In this writer's opinion, the establishment of the "Peace & Security Council (PSC)" in 2004, despite being seen by many as strengthening AU's intervention ability, is a step in the wrong direction. This UN Security Council-like institution comprises a smaller slate of member states elected among member states, with the institution possessing the decision-making power regarding these interventions and suspensions of membership when a coup occurs. The problem, however, is that the PSC remains firmly an organization led by member states rather than one based on Union interests. Thus, the PSC would, like the Security Council highlighting the powerlessness of all other UN institutions, further emphasize like-features in the AU. Indeed, despite significant improvements from the OAU years, AU remains a "president's club." No wonder AU and ECOWAS would lose credibility in coup prevention other than just maintaining their own power. Further, we do not see a similar level of personality commitment towards the union process in AU and ECOWAS comparable with the giants in the history of European Integration. When the European Commission was first formed to head the then-European Economic Community, it was blessed with Walter Hallstein as its first president. Despite his origin as a German diplomat, Hallstein fully committed his first loyalty to the Commission, with a solid personal ideology to distinguish the Commission as an autonomous body from the member states' government despite numerous challenges from strongmen like de Gaulle during the "Empty Chair Crisis." Compared to the AU, where former Chairperson of the AU Commission Dlamini-Zuma was widely criticized as an absentee leader, the contrast is apparent.
- Operating on Good-Faith Enforcement: The Current State of International Legal Instruments in Art Repatriation
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. “Perhaps soon, the growing international trend of rectifying historical wrongs will realize the long-awaited repatriation of such pieces to their cultural homes across the planet.” -Erika Echeona and Christin Nadeau, Santa Clara Business Law Chronicle The Issue of Repatriation & its Modern-Day Prevalence The global trade of art, antiquities, and cultural items is a multi-billion dollar industry. And as with any industry of such size, there comes with it an infestation of crime. The art world has seen powerful nations and institutions continuously profit off of the long-withstanding effects of illicit trafficking, colonialism, pillage, and theft. Recent years have brought heightened scrutiny into art collections across the globe, calling into question the provenance and origin stories of how items wound up in museums or private possession in the first place. While ethical awareness has intensified within the art world, the next – much more crucial – step beyond awareness is to define a process in which we can rectify these wrongs. Identification and acknowledgment of a stolen artwork is simply not enough; how, then, can we effectively repatriate it? Repatriation, or the return of cultural objects to their country of origin, has increasingly come to be seen as a human rights issue. While for decades there has been polarized discourse both in criticism and defense of repatriation, one fact that remains truly uncontested is that hundreds of thousands of culturally significant items have been mass-displaced from their native homes through improper channels. Many archaeologists and art historians argue that cultural property is a nonrenewable resource for nations and advocate for their return on the grounds that objects lost to their culture also take away with it their history. Even with such strongly rooted foundational interests, the actual execution of repatriation requires overcoming the extensive legal barriers that stand in the way of an object’s return. Existing Legal Mechanisms & their Current State of Effectiveness Looting of art, archaeology, and other cultural property went on for many years without any regulation, but with shifting global perspectives toward postcolonial morality, cultural heritage has come to occupy a very distinct place in the body of international law. The last 70 years has seen a variety of legal instruments develop in the effort to defend heritage. Hague Convention of 1954 on the Protection of Cultural Property in the Event of Armed Conflict Adopted in response to the large-scale cultural destruction promulgated by World War II, the 1954 Hague Convention was the first international treaty to focus exclusively on the protection of cultural property during times of war. It defined the term ‘cultural property’ broadly, stating that it covered “movable or immovable property of great importance to the cultural heritage of every people.” In the central effort to ensure the proper treatment of cultural property during hostilities, the destruction of cultural items was recognized as a war crime on the grounds that it weakens foundations for peace and hinders reconciliation when hostilities end. Unfortunately, the Hague Convention has widely been considered ineffective. While drafted in 1954, the U.S. did not ratify it until 2007 under the Clinton Administration. Nonobservance of its framework by other member nations has been largely indicated by the fact that the destruction of cultural property has continued to be used as a military tactic during wartime. UNESCO Convention of 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property In acknowledgment that cultural property should be afforded protection beyond the context of armed conflict, the resulting 1970 Convention sought to fight crime against heritage by preventing the export of cultural objects from source countries and their import into other countries. The Convention emphasized that the true value of cultural property could be appreciated only when presented within its original context, and it was incumbent on every state to prevent the destruction of heritage by taking action in pursuit of these universally recognized moral principles. The agreement was rather broad and did not mandate any specific actions be taken; the terms thus remained solely prospective, requiring individual implementation by state party legislatures. The Convention did not provide any forum for the judicial settlement of repatriation disputes. As a result, a wide and conflicting range of legislative approaches to its terms developed among signatory states. While 1970 brought a shift in which many institutions took more aggressive positions to ensure that the art they acquired came through legitimate channels, the existing divergence in legal standards has posed a serious issue for cohesive international regulation. UNIDROIT Convention of 1995 of Stolen or Illegally Exported Cultural Objects Subsequent years came with the realization that private law disputes in cultural property required their own set of regulations, and UNESCO requested that UNIDROIT, an independent intergovernmental organization, make efforts to govern international rules for recovery. This prompted the UNIDROIT Convention of 1995, in which protection was expanded to give private parties the right to make a claim for restitution. This came with a variety of mandates for Contracting States: uniform treatment of claims, due diligence and burden of proof standards, time limits, permitted arbitration, possibility of compensation, and venue specifications. Similarly to its predecessors, however, the palpable impact of the UNIDROIT Convention has been restricted to the good faith efforts of its member nations. Washington Conference of 1998 on Holocaust-Era Assets Recognizing a great lack of adequate measures for repatriation remained, the 44 countries and 13 non-governmental organizations in attendance at the Washington Conference of 1998 came to agree (but with no formal agreement drafted) upon 11 moral principles that would assist in the repatriation of Nazi-looted artifacts. While the efforts presented a general consensus, they were non-binding principles considered to be “soft law,” serving more as encouragement. There have been a variety of responses amongst member nations, some of which are incredibly positive. To name a few, Austria has embedded provenance research throughout their public institutions and Germany has dedicated an entire commission to the cause. Other nations present at the Washington Conference, however, have so far failed to be accountable to its ethical code. Those accused of being slow to address issues of Nazi-looted artifacts thus far include Hungary, Poland, Italy, Russia, and Spain. Each year, more countries recognize the need for cultural property protection and decide to join the international treaty regime. While the above presents major instruments that do have significant global resonance, the truth is that they remain very limited in their executory ability. Without a nation’s legislature making drastic moves to affirmatively implement the provisions within these agreements, they have no effect. This narrow scope of existing mechanisms has thus proved problematic, and certainly not all-encompassing for issues of repatriation. There is only so far this can take us in sufficiently adjudicating disputes of repatriation. How can we mitigate these challenges? With the current state of repatriation efforts being notoriously ineffective, we must assess what can realistically be done to mitigate the many international hurdles involved in returning artifacts. Major institutions and invested actors have advocated for a variety of solutions that can smooth the process. Creation of National Cultural Heritage Units INTERPOL, an international organization facilitating worldwide police cooperation, has been attempting to fight crimes against cultural property since 1946. Echoing the situation of the above instruments, its effectiveness is entirely dependent on international cooperation. INTERPOL has made strong attempts at counteracting these limitations by advocating for each nation to have a specialized unit dedicated to cultural property. Through providing a proposal detailing a uniform basis on how this can be achieved, they’ve urged countries to recognize the benefits a dedicated team would provide. Cultural Heritage Units would assist each nation-state in fulfilling their international obligations and, perhaps even more importantly, facilitate a greater respect for that of other countries through a more reciprocal relationship. Databases & Accessibility to Information Information is one of the most major ingredients to cross-cultural understanding. A prominent topic of the Washington Conference was the consensus that effective change necessitated open and accessible records. This has contributed to the growing need to maintain digital databases as a tool to track stolen and looted art. Notable examples of databases that have been formed as a result are the Art Loss Register, the Nazi-Era Provenance Portal (NEPIP), INTERPOL’s Stolen Works of Art Database, and the FBI’s National Stolen Art File. Digitization of records has proved very challenging, however, as the passage of time experienced by much of cultural property has led to unavoidable gaps in provenance, prompting evidentiary concerns. It is up to the due diligence of theft victims to fill these gaps through conscious efforts to ensure the item they seek returned is reported and accessible via multiple databases. While the above is by no means an exhaustive presentation of ways to mitigate the challenges involved in repatriation, they do present two options that are realistic and achievable. Repatriation of cultural heritage is no simple task; the international exchange involved requires overcoming a web of complexities that can only be achieved through a genuine dedication to continuously cooperate among governments, law enforcement, museums, and private actors across the globe. In the ethical returns era of modern-day, the process of repatriation necessitates much more than the attendance of Conventions and signing of treaties. Additional measures must be taken by the members of each individual state in order to become holistically effective for cultural preservation worldwide. For any questions regarding the content of this article, you may contact the author at eleanor.gartstein@berkeley.edu.
- The European Onslaught on Investment Arbitration: Why Leave the Global South Hanging Low?
About the Author: Kartik Sharma and Aditya Singh are BA.LL.B. (Hons) students at the National Law School of India University, Bengaluru, India. Kartik is an editor at the Indian Journal of International Economic Laws. Aditya is a line editor at the National Law School Business Law Review(NLSBLR). Photo by Yukiko Matsuoka, available here. INTRODUCTION The EU landscape of dispute resolution, involving the member states and private entities, has undergone major transformations at various points in time. The most recent changes include Portugal’s withdrawal from the Energy Charter Treaty and a European Commission proposal on a coordinated withdrawal, following similar decisions of other member states. Such withdrawals signalled the states’ refusal to enforce EU laws regarding arbitral awards, which affect most investor-state arbitrations. EU member states like Sweden and Germany have been using rulings in Achmea and Komstroy as a defense across forums within and outside EU with the most recent seen in Sweden and Germany. The common concern regarding these withdrawals is the EU’s protectionist attitude towards upholding the autonomy of their domestic legal order and the space for welfarist and developmental measures, which are perceived to be under the threat of the “investor friendly” arbitration regime. While literature has emerged on the legal fallacies and disproportionality of such measures, the impact on the Global South is yet to be highlighted. Here, we attempt to unravel the glaring irony of the EU members' withdrawal from the Treaty after putting the Global South in an undesirable trap, wherein their redistributionist and welfarist capacity is constrained. GENESIS OF GLOBAL GOOD GOVERNANCE BY THE FIRST WORLD After the collapse of the direct colonial order, a multiparty treaty institution, International Centre for Settlement of Investment Disputes (“ICSID”) Convention was established, and separate Bilateral Investment Treaties (“BIT”) were signed between individual countries. These efforts aimed to institute a legal framework that could ensure the protection of investor interests against the interests of sovereign states. While critics of such systems often describe them as neo-colonial, accusing them of imposing the Western concepts of rule of law on the Global South, the supporters praised these measures as a tool to promote uniform global standards of good governance. While having different stances, both perspectives indicate the formation of a regime akin to global administrative law. This system, often viewed as neo-colonial, creates a separation between the domestic legal-political realm and an international order primarily focused on investors protection. Scholars such as Schneiderman and Van Harten described this transformation as the ‘constitutionalization’ of nature, which places legal limits on the government’s power to undertake redistributionist and welfarist measures while affording investor interests ‘the highest possible protection.’ From the perspective of developing countries, they are curtailed from taking the most basic of measures, for example, the regulation of an industry to further the right to life and improve people’s welfare. THE REAL NEED FOR GOVERNANCE AUTONOMY If we are to contextualise the current paradigm, it is clear that those mostly in need of deference towards their developmental policies are Global South countries for two broad reasons. Firstly, statistics show that 70% of the International Investment Arbitration claims active in 2020 were initiated by investors and corporations of developed countries against developing countries. Of the remaining 30%, 15% of the International Investment Arbitration claims are intra-EU and hence cannot be enforced any longer. The rationale for not granting arbitral tribunals the ability to interpret EU law, which is included in the constitutional structure and supersedes the laws of member states, is not only attributable to the EU’s legal framework. The constitutions of many developing countries, which are the sacrosanct and supreme laws of these jurisdictions, can also only be interpreted by designated constitutional courts, and they tend to have a more direct bearing on the developmental policies of the country. This is to say that welfarist ideals and directions are often codified into the countries’ constitutions in form of directive principles, the preamble, or fundamental rights. Actions impinging upon them are issues of constitutional interpretation such that the constitution is used to curtail executive actions ranging from allotment of telecommunication/ satellite spectrums, allotment of infrastructural projects in geologically and socially sensitive locations, etc. Bilchitz and Landau studied the constitutions of such nations and highlighted the transformative capacity that the constitutional texts are imbued with. The lawmakers intentionally empowered the government and its constituent branches with authority to create policies that further socio-economic rights. This scheme of governance necessitates a larger leeway in policy making that the governmental apparatus needs to possess. However, these aspirations are sometimes against the interests of investors, who tend to prioritize their own benefits at the cost of the welfare of the public. The UN Guiding Principles on Business and Human Rights (UNGP) recognize the effect of BITs on domestic policies, such as restrictions on a state’s ability to implement a new human rights legislation. It is particularly challenging for developing countries to find a way out of these opposing obligations and achieve a state of balance. These states often have to address their complex historical contexts, necessitating egalitarian, transformative actions by their governments. One example is Piero Foresti v South Africa, an arbitration dispute brought by investors based in Italy and Luxembourg, who were engaged in the mining business in South Africa. The Minerals and Petroleum Resources Development Act of 2002 contained provisions that allowed the South African government to redistribute privately held mineral rights among companies through a fair system of licensing. The same was carried out to address past racial inequities prejudicing the ownerships. As a result, the investors filed expropriation claims. Ultimately, the court discontinued proceedings as the settlement agreement provided the investors with an alternate mining site. There are numerous decisions that keep the legitimate expectation of investors at the forefront. Developing countries experience the greatest impact of the increasing range of expropriation cases, yet there is no definitive test to determine the occurrence of expropriation. In the words of Yves Fortier and Stephen Drymer, the standard to distinguish a valid regulation from expropriation is at best - “I know it when I see it”. Even if we are to look at seemingly progressive decisions such as Biwater Gauff v United Republic of Tanzania - decisions that seek to deviate from tests that give primacy to legitimate expectations of investors - the destination is the same. In this case, Dar Es Salaam Water and Sewage Authority(DAWASA), the state-owned Tanzanian company, cancelled a contract for the operation of water facilities in Dar es Salaam that was awarded to Biwater Gauff. Biwater impugned this action and others including the withdrawal of VAT exemption as constitutive of expropriation. It was finally held that these cumulative series of actions, including the seizure of Biwater's assets, as amounting to an expropriation and violation of the ‘Fair and Equitable’ standard. However, what constitutes the essence for the authors in not the conclusion but the reasoning therein. The amicus had framed the dispute through the lens of human rights obligations pertaining to water. The Republic of Tanzania argued that the State had the responsibility to effectuate adequate measures in guaranteeing the access to water, and termination of the contract was a step in pursuance of this. The tribunal remarked that these arguments were taken into account in the assessment of the FET standard. Yet, the precise way in which the amicus submissions impacted the award was not elaborated by the tribunal. Further, the tribunal in a way withdrew its earlier deference to the host country’s policy. The tribunal stated that it could not give complete primacy to legitimate expectations of the investors, and limitations to legitimate expectations should be factored in “where an investor itself takes on risks in entering a particular investment environment”. It firstly relied on MTD v Chile, which stated that the sole source of host state’s obligation was the underlying BIT. Biwater Gauff’s tribunal in its own analysis also mentioned the need to rely on rights and obligations set out in the relevant investment agreement. The very issue here was to preserve the host state’s autonomy to circumvent these agreements in cases where its own constitutional obligation to protect its citizens rights is at risk. Secondly, the tribunal defined protection of legitimate interest as protection of ‘basic interest’ as long as they are ‘reasonable and legitimate.’ The standard is low, vague and circular. It takes us back to the point we departed from. What counts as ‘legitimate’ is, after all, based on the western standards of global governance. As Fortier and Drymer observed, while domestic laws of the respondent countries are referred to, American laws are frequently cited as thresholds due to their strong regard for property rights. Friedman has rightly argued that cases such as Peiro will continue to come up and pose crucial questions for the future of the Global South in the international investment paradigm. While it is not tenable to create an exhaustive list of such cases, scholars as a matter of general observation have noted that incompatibility and bias owing to “institutional application of international law doctrines toward a conservative set of ideological preferences founded on a deep and enduringly intuitive loyalty to a public/private distinction” in case of the Global South was destined. Yet the creation of the ‘New International Economic Order’ was pushed unhindered until it backfired upon the global north. All such developments took place at a time when the the Global South had negligible say and bargaining power and had to adopt these measures to facilitate their inclusion in the global order. CONCLUDING THOUGHTS Borrowing from the empirical study conducted by Thomas Schultz and Cédric Dupon using about 541 investment awards from 1972-2010, we can see that the Global North was largely unhampered and unaffected until the late 90s. Untill this period, it could largely be described as a sword in the hands of investors hailing from developed countries used to press claims against the developing countries. The trend started to change after the above-mentioned period as investors also started to bring claims against the developed countries. Measured changes such as an addition of mandatory environmental policy compliance clauses were taken. This, however, soon transcended into withdrawals from multilateral agreements such as the ECT and other mentioned developments occurring post-Achmea. What was earlier hailed as a tool to ensure rule of law and global good governance is now being repelled by its founders when it poses a threat to their autonomy of governance and attainment of developmental goals.
- Shifting Burdens: Migration Enforcement Arrangements in the Americas and Mediterranean
About the author: Sophia Wang (J.D. Candidate, Class of 2026) is a Travaux contributor. She is interested in comparative human rights law, technology policy, and international data privacy regulation. Sophia graduated from NYU College of Arts & Science with a major in Philosophy and minor in Economics. During college, she worked at an immigration law office in Brooklyn, where she helped individuals obtain asylum, citizenship, and visas. Before law school, she assisted privacy counsel at a media company. She is proficient in Spanish and a native Mandarin Chinese speaker. Nations across the world are responding to the 2022-23 “global polycrisis,” a phenomenon marked by compounding socioeconomic, environmental, and political stressors spurring record rates of migration—both voluntary and forced, legal and irregular. In April 2023, the US Secretary of Homeland Security and the Colombian and Panamanian Ministers of Foreign Affairs released a trilateral statement. The statement affirmed their commitment to a sixty-day campaign to end the illicit movement of people and goods through the Darién Gap, introduce “lawful and flexible pathways” for migrants seeking legal status, and promote economic and infrastructural development in border communities in northern Colombia and southern Panama. Simultaneously, discussions between the EU and Tunisia on curbing unauthorized refugee and migrant flows across the Central Mediterranean Route resulted in a partnership to monitor Tunisia’s border and return migrants who arrived illegally in Europe from Tunisia. A staunch proponent of the EU-Tunisia pact, Italian Prime Minister Meloni, later signed a deal with Albanian Prime Minister Rama to construct two centers in Albania where up to 3,000 migrants at any given time will await Italy’s asylum application review. As parties to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, the United States and Italy are bound by their responsibilities under international refugee and human rights law. Therefore, they may not limit or shift their human rights obligations, regardless of underlying migrant enforcement arrangements. US-Colombia-Panama – The Darién Gap The Darién Gap, a sixty-six-mile stretch of treacherous, roadless jungle between Colombia and Panama, is the only land route connecting Central and South America. Last year, over 248,000 migrants—with one in every six being a child—embarked on the dangerous trek lasting ten or more days. In 2022, the United Nations documented at least 141 migrant deaths in the Panama portion of the Darién alone. In the first two months of 2023, the number of migrants who crossed the Darién Gap increased sevenfold compared to the same period in 2022. Furthermore, from the beginning of the year to July 2023, more migrants have crossed the Gap compared to the entirety of last year. New restrictions preventing migrants from flying to Mexico or countries in Central America have led to an increase in the number of crossings. In January 2022, Mexico imposed visa regulations that required Venezuelan nationals to provide valid passports and proof of economic stability, such as employment for the last two years, property ownership, or bank assets. Subsequently, Costa Rica put into effect visa requirements for Venezuelan, Cuban, and Nicaraguan migrants, while Belize enacted similar restrictions on Venezuelans. Under pressure and requests from the US to limit northward migration flows, host countries have made it more difficult for migrants, particularly individuals of lower socioeconomic status, to obtain valid legal status. Without the ability to fly to Mexico, more migrants are traversing the Darién and arriving in Mexico by foot to present their asylum cases. Despite the release of the Trilateral Joint Statement by the US, Colombia, and Panama in April 2023, Darién crossings and irregular migration continued to increase significantly without the collaboration and action as committed in the campaign. The only concrete action so far is Panama’s Operation Shield, a plan to combat migrant smuggling and crime in the Darién Gap. Although the US pledged to establish Safe Mobility Offices in Colombia to consider Cuban, Haitian, and Venezuelan migrants for humanitarian protection, the website abruptly closed one day after its release. Currently, the online application opens for a limited time until a daily quota is met. Meanwhile, Panamanian leaders are frustrated with Colombia’s lack of cooperation. The disunified efforts of the three governments are unlikely to remedy the situation in Darién. Further, any attempts to block land pathways may push migrants toward more dangerous maritime routes. Increased law enforcement may also force more migrants to pay for guides to navigate around authorities in the jungle. EU-Tunisia, Italy-Albania – The Mediterranean The Central Mediterranean Route is one of the main migratory routes from North Africa to Europe. The most common countries of departure are Libya, Tunisia, Egypt, and Algeria. Migrants typically aim to reach Italy, including its southernmost island, Lampedusa. The UN Refugee Agency counted 90,168 departures between January and September 2022 with 1,017 migrants reported to be dead or missing. On September 12, 2023, over 6,000 migrants arrived in Lampedusa within twenty-four hours, severely overwhelming food, shelter, and medical care units provided by NGOs and local facilities. In July 2023, the EU and Tunisia signed the Memorandum of Understanding on a strategic partnership to reduce irregular migration and develop legal pathways for migration. In exchange for Tunisia’s cooperation in identifying and returning irregular migrants, fighting networks of migrant smugglers, and coordinating search and rescue operations at sea, the EU will provide Tunisia with training, financial support, and investment toward infrastructure projects. In October 2023, the EU disbursed €127 million, including €60 million to support Tunisia’s economy and €67 million to reinforce border control and prevent the departure of migrant vessels. However, Tunisia returned the €60 million tranche as an indication of its dissatisfaction with the European Commission. In light of escalating tensions between the EU and Tunisia, Italian Prime Minister Meloni turned to Albania as a potential partner. The Italy-Albania cooperation aims to reduce the number of migrants in Italy by opening two centers in Albania—one for processing migrants found crossing the Central Mediterranean Route and the other for detaining migrants. Together, the two facilities are projected to hold up to 36,000 migrants per year. After a fast-tracked 28-day application period, if Italy rejects the asylum bids, Albania shall deport the migrants back to their countries of origin. Opposition politicians in Italy warned of an impending human rights disaster, and the European Green Party slammed the plan as a “blatant violation of conventions and international law.” Peremptory norms of international law Under international law, States have the right to deport or transfer migrants to their places of departure or safe third countries, provided that certain standards are met. Particularly, States must abide by the principle of non-refoulement set forth in the 1951 Convention to protect refugees and asylum seekers from being deported to their places of persecution. The primary responsibility of protecting asylum-seekers falls on the State in which they arrive. A State must protect migrants within its jurisdiction who are fleeing from threats including armed conflict, general violence, and persecution on religious, ethnic, or political grounds. The Cartagena Declaration on Refugees adopted in 1984 by ten Latin American countries including Colombia and Panama emphasizes the principle of non-refoulement as a cornerstone of international refugee protection and a rule of jus cogens. The Declaration expands the concept of a refugee to include persons who have fled their country due to internal conflicts, massive violations of human rights, and serious disturbances of public order. Applied to the US-Colombia-Panama campaign targeting the Darién Gap situation, the principle of non-refoulement prohibits not only the forcible repatriation of refugees and asylum seekers but also certain indirect measures. With increased barriers to Darién crossings and the US implementation of a Migration Enforcement Process to deport Venezuelan asylum-seekers at the US southern border to Mexico, more Venezuelan migrants are returning from host countries despite harsh conditions back in Venezuela. Returnees face various difficulties in accessing jobs, social services, and housing in their home country. They experience backlash from their communities and struggle with the ongoing socio-economic crisis marked by hyperinflation and rampant corruption. The trilateral actions of the US, Colombia, and Panama conflict with the principle of non-refoulement by leaving migrants with no viable alternatives but to return to a place of social disorder. Further, by enhancing Panama’s law enforcement in Darién and establishing processing offices in Colombia, the US effectively bypasses its obligations to migrants seeking legal protection from the US, as migrants can be halted in the jungle and subjected to extraterritorial processings in Colombia or Panama. Similarly, the EU-Tunisia and Italy-Albania partnerships risk contravening Article 33 of the 1951 Convention, which prohibits a State from expelling or returning refugees in any manner, unless the State bases the refoulement on reasonable public security concerns. The principle of non-refoulement is also enshrined in the Treaty on the Functioning of the EU and the EU’s Charter of Fundamental Rights. For the patrol of the Central Mediterranean Route, Italian, Tunisian, and Albanian authorities, as well as the European Border and Coast Guard Agency, must rescue vessels in distress and provide migrants with immediate assistance rather than intercepting boats and pushing migrants back to their countries of origin. Under the Italy-Albania plan, Albania’s detention and deportation of migrants risk severely violating the principle of non-refoulement and failing to afford asylum-seekers protections required by international law. Moreover, since the detention centers are within Italy’s jurisdiction, Italy circumvents its obligation as the state in which migrants seek protection. By arranging for Albania to monitor the two facilities and having Albania, a non-EU member, conduct immediate deportation prohibited by EU human rights statutes, Italy has shifted its responsibility of protecting refugees under international law. Finally, States must reevaluate their plans to curb irregular migration and consider adopting a framework of international cooperation developed by The Office of the United Nations High Commissioner for Refugees. Enacting heightened control efforts on migration and intercepting established routes will only force migrants to resort to riskier paths, exposing themselves to smugglers and traffickers. Instead, cooperation between countries entails a state’s refusal to externalize its obligations by contracting with and incentivizing lesser-resourced states, as well as the efforts to identify appropriate balances of solutions including resettlement, local integration, and voluntary repatriation. Burden sharing means pooling emergency funding, securing places of humanitarian evacuation or resettlement, and supporting the economic, social, and political development of migrants’ countries of origin or safe third countries with no strings attached.
- Understanding a Nation’s Right to Defensive Force During Turbulent Times
About the Author: Dr. T. Markus Funk is a former federal prosecutor, USDOJ Section Chief in Kosovo, and law professor at institutions including Oxford University (where he obtained his PhD) and the University of Chicago. Markus is the author of a number of books and scholarly articles on self-defense and international law, including Rethinking Self-Defence: The 'Ancient Right's' Rationale Disentangled (Hart Publishing, 2021), as well as Victims' Rights and Advocacy at the International Criminal Court (Oxford University Press, 2nd ed. 2016). Now in private practice with the international law firm of PerkinsCoie LLP, you can reach Markus at mfunk@perkinscoie.com or follow him @TMarkusFunk1. Portions of this article are adapted, with permission, from a shorter piece published by The Hill. U.S. Ambassador Bathsheba "Sheba" Nell Crocker joined the Ambassador of Israel to condemn the Hamas terrorist attack in front of the United Nations. Photo by United States Mission Geneva available here. When, how, and why a nation has the right to deploy deadly defensive force is one of the most widely discussed and passionately debated legal questions of the day. On October 22, 2023, President Biden joined leaders from Western-allied countries reaffirming Israel’s right to deploy deadly defensive force against Hamas, while also emphasizing the need to protect civilians. China later followed suit by similarly endorsing Israel’s “right to self-defense.” However, other nations, as well as certain U.N. personnel, disagree with these claims of justifiable defensive force. As the current situation highlights, any exercise of trans-border force is bound to ignite fierce, frequently ideologically driven debates among the public, as well as legal scholars and the governments they advise. Unfortunately, the prevalent tendency among scholars to overcomplicate international law topics, including the subject of a nation’s right to self-defense, does a disservice to the general public during a time when clarity is needed more than ever. There will of course always be competing factual disputes over whether certain combatants are using force to save life, as opposed to taking life. But the underlying international law of self-defense is not as complex as common academic treatments, diplomatic discourse, or media appearances by the legal commentariat portray it to be. Moving from the general to the specific, the best way to understand when a country can rely on justified defensive force under customary international law and the United Nations Charter is through the lens of the more relatable and intuitive individual right to self-preservation under domestic U.S. state law. The United Nations Charter’s Default Prohibition Against the Use of Force Often referred to as the “ancient right” or the “first civil right” in the context of individuals, the practice of the ancient tribes - and later nations - concerning the use of defensive force has a long and tangled history. A country’s right to self-defense formally developed through customary practices between nations. Today, the right of nations to engage in self-defense is formally enshrined in the United Nations Charter. The Charter is similar to US domestic self-defense law in that both seek to reduce overall societal violence. Indeed, Article 2(4) of the Charter explicitly prohibits the use of threatened or actual force against the territorial integrity or political dependence of any state. The Charter’s drafters, in setting out this default presumption against force, echoed the International Military Tribunal at Nuremberg's 1946 admonition that initiating an aggressive war is "not only an international crime; it is the supreme international crime." The UN Charter's Significant Self-Defense Carve-Out Although Article 2 creates this broad prohibition against the use of force, Article 51 permits a nation to use defensive force "if an armed attack occurs." The right to deploy defensive force, moreover, is not limited to the defending state's territory; though like all things international law not a matter of universal agreement, the prevailing view is that it can also be used to prevent or stop acts of violence against the emanations of the state, such as embassies and armed forces. Further, customary international law, including UN Security Council Resolution 1373, provides that a state can exercise the right to self-defense against non-state actors such as terrorist groups operating in the territory of another state. That said, it must be evident, and provable, that the recalcitrant state is unable or unwilling to deal with the non-state actors itself. Finally, even after a nation engages in what it claims to be a defensive force, Article 51 requires the defending nation to report "immediately" such use of force to the UN Security Council so that the Security Council can take measures aimed at restoring international peace and security. Understanding Article 51 and the Customary International Law of Self-Defense Through the Domestic Lens Overview of the Common Self-Defense Elements. An straight-forward way to understand the scope of self-defense under international law is to examine how US states treat self-defense claims. As we will see, the core elements of self-defense under US state law – which, contrary to the received wisdom in many media outlets and institutions of higher learning, in fact is representative of the majority of domestic self-defense laws worldwide – mirror those found in the UN Charter and the customary international law governing nations, after which the Charter is modeled. More specifically, under both US state self-defense laws and international law, an individual or country can successfully raise a self-defense claim by establishing that (1) the defender was the subject of an unprovoked violent attack; (2) the defender used an objectively reasonable degree of force to thwart the attack; and (3) the defender's fear of serious bodily injury or death was both honestly held and objectively reasonable. We examine each of these basic elements in the following section. The Attack. Both domestic and international law require that the defender, whether individual or nation, subjectively (that is, honestly) and objectively (that is, reasonably) believe they are facing an unlawful (unprovoked) violent attack. The attack, moreover, must involve the use of armed force or violence, rather than mere economic damage. Necessity. Under both domestic and international law, the element of "necessity" makes defensive force available only when the central bodies - whether the coercive machinery of the justice system or the United Nations - cannot offer the necessary protection, and no other means of protection is available. The moral principle animating this element is that all human life, even the life of a violent criminal or of individuals engaged in terroristic violence, is valuable and deserves protection, except in circumstances where the defender has no alternative but to resort to defensive force. In the domestic context, the less able the police are to protect citizens, the stronger the justification becomes for an act of self-defense being, as a matter of fact, necessary. The same is true in the international context, where many observers have become skeptical about the UN Security Council’s ability to effectively defend nations against attacks. Timing/Imminence of the Attack. Turning to the always-controversial issue of timing of the defensive force, both US domestic and international law require the attack to be either occurring or about to occur (that is, the attack must be "imminent"). Timing, Part II: Anticipatory Self-Defense. Although responding to an ongoing unjustified attack is largely uncontroversial, intense debates persist in both domestic and international legal spheres over what exactly constitutes an "imminent" (that is, an "about-to-happen") attack. Yet, there is broad agreement that the criterion of imminence must be interpreted against the backdrop of the type and seriousness of the threat posed. Put differently, the more dangerous the threatened attack, the more proactive the permitted defensive action. Some states, including the governments of the US (in the context of the invasions of Iraq and Afghanistan), Russia (regarding the invasion of Ukraine), and Israel (regarding, among other situations, the Second Lebanon War) favor immediate, proactive self-help when they deem it necessary. They, accordingly, have called for a broader reading of Article 51's permission to use defensive force. Under their more expansive interpretations of the Article, countries are permitted to engage in anticipatory self-defense (alternatively called "preemptive self-defense," "preventative war," "interceptive self-defense," "incipient self-defense," and "precautionary self-defense") against what they consider terrorist groups and the rogue states that sponsor them. Under their reading, defensive force is justified even when no formal armed attack has occurred or provably will occur in the immediate future. Representatives of these countries will also point to the reality that all self-defense, whether between countries or individuals, is by definition "anticipatory" in that its aim is to avoid future harm. In the domestic context, after all, the defender need not wait until the attacker actually pulls the gun’s trigger or thrusts the uplifted knife down before deploying justified defensive force. They argue, with some legal and common-sense support, that any more restrictive reading of Article 51 would require states to engage in acts of suicidal abstention. The 2002 US National Security Strategy argues for a broader interpretation of "imminence" this way: For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat – most often a visible mobilization of armies, navies, and air forces preparing to attack. (Emphasis added) But this broad interpretation of the international self-defense authorization, which also evokes the US Supreme Court's 1921 admonition in Brown v. U.S. that "detached reflection cannot be demanded in the presence of an uplifted knife,” predictably also has its vocal critics. Led by prominent proponents, including the International Court of Justice, advocates for a more restrictive view of Article 51 claim powerful states – that is, those states most capable of launching effective cross-border attacks – are prone to abusing the right. They argue for restrictive legal prerequisites, including mandates that threatened/perceived attacks must reach a certain level of gravity and that the country claiming self-defense must identify the source of the threat by clear and convincing evidence. Parallels Between International Law and Domestic Battered Intimate Partner Situations. The US government's call for a greater leeway to engage in anticipatory self-defense finds interesting parallels in the arguments advanced in the domestic battered intimate partners context. The debate in this domestic arena focuses on whether battered intimate partners should receive broader justification for deploying defensive force against their tormentors. The traditional rule, still operative in most domestic contexts, was that the battered intimate partner has the option of going to the police or moving out, rather than killing, say, the sleeping drunk and abusive partner. Stated differently, the conventional/prevailing view is that this kind of purportedly anticipatory defensive force used by the battered partner is not, as a matter of fact or law, necessary because other options for avoiding perceived future harm are available. Further, critics of providing broader leeway contend that the anticipated attack from the sleeping intimate partner, if it happens at all, could be hours away, meaning that the attack is also not imminent. The counterargument is that this traditional understanding of battered intimate partners fails to adequately recognize the complex dynamics of violent relationships and that jurors, therefore, should have the benefit of expert witness testimony about abuse. Deploying an analogous line of reasoning, those nations wishing to use force against, for example, terrorist groups located in another country are confronted with calls that they should be required to first bring their claims to the UN Security Council. If they do not, so the argument goes, their use of force in all but the most extreme cases should be deemed unnecessary under international law. Those in favor of such a limitation of defensive force will, as a fallback, also claim that, as with the sleeping abusive spouse, there is insufficient tangible proof that, for example, the terrorist group is as a matter of fact about to launch a terror attack, thus also negating the imminence requirement. In both domestic and international cases, the perceived attack may not technically be imminent. But the core of the counterargument is that a failure to act immediately may make such an attack inevitable and significantly increase its likelihood of causing more serious damage. Further, those favoring a broader defensive right will point out the unfortunate reality that a resort to the authorities (in the case of a nation, the United Nations Security Council; in the case of an individual, the police) may be technically possible, but in the real world it is unlikely to be effective under the exigencies of the moment. Proportionality. Finally, under both domestic and international law, the force used, taken as a whole, must not be excessive in relation to the need to avert the attack or bring it to an end. The consequences of the force used, moreover, must not be disproportionate to the anticipated harm. Representing an alternative perspective on necessity, this requires that the level of force used must not be greater than that of the force necessary to end the attack or remove the threat. “Innocent shields.” President Biden and European Commission President Ursula von der Leyen have joined many other world leaders alleging that Hamas uses civilians as human shields by embedding themselves in civilian communities and taking civilians hostage. Though the details may in some circles be subject to dispute, what is not controversial is that an aggressor’s use of innocent shields is prohibited under domestic and international law and constitutes a serious war crime. Though subject to varying interpretations, the balance of authority, moreover, holds that the presence of human shields does not prevent defensive force. Rather, an aggressor’s use of innocent human shields factors into the above-referenced proportionality calculations — the defending country must take “active precautions (that is, do everything feasible under the circumstances) to avoid harming the civilian shields. If, however, the civilians are found to have used their civilian status to impede the defender’s actions they, like colluding shields in the domestic context, lose these protections. Parting Thoughts Claims of self-defense, whether made by individuals or by countries, are inherently fact intensive, often evoking strong emotional responses. Commentators, including those opining on the present deteriorating geopolitical climate, unfortunately tend to overcomplicate the discussions on the international law of self-defense. Whether because of nature or of academic nurture, they too frequently develop the bad habit of shrouding their analysis in layers of nearly impenetrable legal theories. Never more so than in times of crisis, providing the public with an uncluttered explanation of foundational rights, and as relevant here the right to self-preservation under international law, is critically important. Drawing out the intuitive parallels between international and domestic self-defense, and in so doing avoiding unnecessary legal formalism, represents a step in the right direction.
- Island Nations Trapped in the Climate Statelessness Conundrum
About the Author: Dr. Nafees Ahmad is an Associate Professor at the Faculty of Legal Studies, South Asian University (SAU)-New Delhi. He holds a doctorate in International Refugee Law and Human Rights. His scholarship focuses on RAMS (Refugees, Asylum-seekers, Migrants, Stateless) and the role of Artificial Intelligence (AI) in their protection, Global Forced Displacement, Global Circumstantial Migration (GCM) Governance and Climate Refugees in South Asia. Dr. Ahmad is also an active blogger, writer, poet and Op-Ed contributor to many international digital platforms in the fields of Refugee Research, Forced Population Transfer, IRL, IHRL, IHL, International Relations and Diplomacy etc. He serves on many committees and editorial boards of many international journals and magazines. He is available at drnafeesahmad@sau.ac.in. Remains of a collapsed seawall in Tuvalu, by mtcurado. Available here. Introduction International Law has numerous issues due to climate change. One topic that has garnered much attention in both scholarly discourse and political practice is the particular circumstances a few small island republics face. Climate change-induced sea level rise threatens millions of people who live in low-lying coastal areas, especially island nations, as well as their security and the entire gamut of livelihoods. The culture, habitation, and identity of millions are being destroyed or lost, which impacts many aspects of international law and challenges long-standing ideas like the requirements for statehood. One primary concern from the human rights standpoint is how this will affect the citizens of disappeared states regarding their legal standing. They play a specific role in the debate over handling climate refugees. In contrast to most displacement cases, there might not be a state to return to when doing so is the end goal. However, what are the potential legal ramifications? Do those who lose their state genuinely end up without a form? The International Statelessness Law (ISL), which consists of the 1954 UN Convention Relating to the Status of Stateless Persons (UNCSSP) and the 1961 UN Convention on the Reduction of Statelessness (UNCROS), seems to be specifically designed for this situation. Nonetheless, this piece makes the case that, before jumping to hasty conclusions about the applicability of well-known principles of international law enunciated under Article 1 of the UN Charter, it is worthwhile to investigate more closely, particularly in light of the numerous transforming difficulties of the modern day. Climatic De-territorialization and ISL The UNCSSP, which complements international refugee law (IRL), establishes a framework for the protection of stateless people. It is indeterminate if the citizens of tiny island nations are protected by this legal framework, even though some writers who address the situation of sinking island states regard statelessness as an unavoidable legal outcome. The most common instance of statelessness, also known as de jure statelessness, is when a person’s home state knowingly refuses to grant them citizenship— more specifically, by the operation of law. Small island nations cannot be considered de jure stateless since the physical collapse of the state does not meet these requirements. Moreover, some people experience barriers to exercising certain rights and end up in a condition similar to de jure statelessness even though they are not denied nationality. In the words of UNHCR, “persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country” constitute a case of de facto statelessness. When nationals cannot get national identity documents, this is a common circumstance in which they may be effectively denied various rights. De facto stateless people should, in theory, be treated like de jure stateless people, according to the Final Act of the Conference that led to the UNCSSP. These instances fall under the purview of the UNHCR’s mandate. Nonetheless, there is no simple way to determine whether a state’s physical submersion causes de facto statelessness. In most cases, the affected individuals have a nationality and a competent home state; these are dubious circumstances in the subject under discussion. Two possibilities can be considered, albeit the precise legal ramifications of a state losing all its liveable land and its legal standing still remain uncertain. The state loses its existence as a state, disappears from the face of the earth, or survives without the original area. In the first situation, the status of citizens will be determined by the state’s ability to maintain its promise of applying citizenship-induced rights. The conventional definition of de facto statelessness is reached when it becomes difficult to enforce citizenship effectively. In the context of statelessness explored here, the second situation—which is frequently assumed without question—needs closer examination. The New Category of Climate Statelessness Since de facto statelessness requires citizenship, it does not apply to a state that has legally vanished, at least not following the criteria given above. However, the islanders in question require protection just as much as other categories of de facto stateless people. This extraordinary situation may create a brand-new class of de facto statelessness known as “climate statelessness.” The UNCSSP’s history further supports this opinion. Despite acknowledging that de facto and de jure stateless people are comparable in that they cannot assert the rights to which their nationality entitles them, the letter’s drafters decided eventually not to include it due to the challenges of evidence. But as an International Scholar noted, there comes a point at which the people living on sinking island states will no longer be able to live in their home state. As a result, they will no longer be able to claim any rights based on their nationality. Therefore, to secure protection, one could argue that to stay in tune with the goals of the UNCSSP and its Final Act, the ISL framework should be extended to states that are disappearing, conceiving a new category of “climate statelessness” if the consensus is that even typical cases of de facto statelessness should be covered beyond the scope of the UNCSSP. Legal Entity Challenges of Climate Statelessness It is ascertained that even in instances that do not conform to the norm, the principles of de facto statelessness may be applied. However, after all these intricate calculations, one should pause and ask themselves if this is actually in the best interests of all parties involved. The tendency to classify them in this way merely stems from the innate belief that these underwater states are officially regarded as disappeared. Nonetheless, the precise assessment of de facto statelessness following the actual loss of a state’s territory can impact the state’s legal standing. Ultimately, this position will rely, at least in part, on the international law community’s perennial approval and recognition. The international law community may feel that the vital subject of the endangered states’ future existence may be ignored because the minimum rights resulting from the ISL framework would have clarified their inhabitants’ status. In this way, the development of “climate statelessness” would effectively impede these states’ ability to continue as legal entities and leave the former population in a situation that only seems to offer a loose legal standing. In international law, statelessness is not a fixed legal situation and remains an unwanted oddity. This is because, on the one hand, no particular home state is in charge of upholding the impacted parties’ human rights. However, one must also have a functioning home state to be granted refugee status abroad. Furthermore, since only a few governments have a process for recognizing stateless persons on their soil, there are no apparent pathways to benefit from the ISL framework in this situation. It is evident from these reasons that Article 32 of the 1951 UN Convention Relating to the Status of Refugees (UNCSR), Article 24 of the 1966 UN Covenant on Civil and Political Rights (ICCPR), and Article 15 of the Universal Declaration of Human Rights, 1948 (UDHR) enshrine the maxim to prevent and reduce statelessness. A situation where it would be necessary first to determine whether a case of de facto statelessness even existed should be avoided with grater reason in conformity with these principles. As such, it is preferable to refrain from attempting to create the classification of “climate statelessness.” Way Ahead It may be aptly summed up from the above analysis of “climate statelessness” and how it is handled in the scholarly literature warns against assuming too much about the legal evaluation of such novel phenomena because doing so can mask the real issues. Sometimes, a phenomenon’s legal ramifications are apparent, but further examination may reveal otherwise. This also holds for the widely held belief that a state ends when its territory has disappeared. This belief is not as clear-cut as it might first appear. This article demonstrates that international law does, in fact, frequently provide points of departure for interpretation and, consequently, the ability to respond adaptably to novel types of issues. However, this flexibility must also be used carefully to serve international law’s primary meaning and purpose as per the UN Charter and Conventions adopted thereunder, particularly in light of climate change, which presents us with numerous unprecedented challenges.