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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.

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.

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.

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.

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.

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.

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.

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. “Cultural heritage must be safeguarded as a testimony of the past, but also as a catalyst for peace and cohesion in the future, which the international community has a duty to protect and preserve” -Audrey Azoulay, UNESCO Director-General Russia's Mission Targeting Ukrainian Cultural Identity In April of this year, NBC released an article revealing the mounting evidence that Russian forces have been systematically stealing art and cultural artifacts from Ukraine on a scale reminiscent of the looting during World War II. Substantiating his core declaration that the idea of a separate Ukrainian national identity is illusory, Vladimir Putin has instituted an organized campaign of looting and destruction which specifically targets sites and monuments that epitomize Ukrainian identity. Since Russia’s initial February 24, 2022 invasion of Ukraine, UNESCO has verified damage to 1,702 objects of cultural infrastructure and 295 cultural sites (124 religious sites, 110 buildings of historical or artistic interest, 28 museums, 19 monuments, 13 libraries and one archive). When Putin declared martial law in annexed Ukrainian territories in October of 2022, he effectively legalized the looting of Ukraine’s cultural property. Pursuant to Russian mandate, the decree of martial law grants Russian military forces the power to evacuate items of economic, social, and cultural significance in the name of “preservation.” Eliminating the physical markers of Ukraine’s culture would be synonymous to wiping out their history, conforming to Russian leadership’s view that there is no Ukrainian culture or “real statehood.” This is not the first time large-scale cultural destruction has been used as a military strategy in efforts to weaken community foundations. Art restitution lawyer Chris Marinello analogized this tactic to historical precedents, stating “they are trying to erase Ukrainian identity, just the way the Nazis did.” International Implications: Timeline Historic Policy In response to World War II’s widespread cultural destruction, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict was created as the most comprehensive treaty dedicated exclusively to the protection of cultural heritage. The Convention, to which the Russian Federation is a signatory, requires states to “refrain from any act of hostility” directed against movable and immovable property of great importance to its place of birth. Moreover, it decrees any state occupying another state’s territories to preserve and safeguard the cultural valuables within its occupation. The Convention seeks to respect cultural property as the common heritage of humankind. Russia’s military actions have strongly contradicted this principle. Accordingly, the destruction of cultural heritage promulgated by Russian forces has been labeled as a violation of the 1954 Hague Convention and a potential war crime. February 2022: Ukraine’s Response Ukraine’s Culture Minister, Oleksandr Tkachenko, is amongst the many who have equated the mass removal of cultural property from Ukraine by Russian occupiers to the looting of museums by Nazi Germany during World War II. Citing the Hague Convention, Tkachenko declared Russia’s actions to be in blatant violation of international policy, calling for Russia’s war crimes to be subject to prosecution. His statement concluded by appealing to UNESCO to prevent further actions by Russian forces. July 2023: UNESCO’s Stance Following Russia’s attack on Odesa, home to a World Heritage Site, UNESCO’s Director-General Audrey Azoulay released a statement claiming “this outrageous destruction marks an escalation of violence against cultural heritage of Ukraine. I strongly condemn this attack against culture, and I urge the Russian Federation to take meaningful action to comply with its obligations under international law, including the 1954 Hague Convention.” With this statement, UNESCO clarified its point of view on the matter, standing behind Ukraine in the fight to protect its cultural property. September 2023: Arrest Warrant Issued Not long after Azoulay’s statement, the International Criminal Court (ICC) issued an international arrest warrant for Putin, urging him to stand trial for his alleged war crimes. A briefing report prepared by the NGO Blue Shield International (BSI) made the assertion that the Russian regime has “premeditatively, systematically, and provably” targeted heritage sites in Ukraine. The briefing, titled Assessment of Damage/Destruction of Cultural Heritage Sites in Ukraine, November 22 - August 23, claims there are at least two instances with firm evidence that certain sites have been specifically and intentionally targeted. The first involves a historical museum in Kyiv strongly linked to Ukrainian identity and the second involves a literary museum hit by a missile strike during the Battle of Kharkiv. In both instances, the cultural infrastructure stood far from any nearby fighting and the surrounding buildings remained unharmed, thus providing a strong indication of the deliberate nature behind Russia’s attack on heritage. The briefing goes on to reference thousands of pieces of artworks removed by the Russian secret service in the Kherson region. The report’s claims of war crimes by the Russian Federation remain tentative, however, as a definite determination of the intention behind Putin’s actions and the degree of cultural damage would necessitate further assessment. Simply put, more evidence is needed for the claims to stand up in an international court. If the report is eventually able to withstand judicial scrutiny, it could play a pivotal role in bridging the evidentiary gap to prosecute Putin. Present Day In the interim, as evidentiary support continues to be gathered, the cultural damage to Ukraine continues to rise. Russia’s totalitarian turn in international policy and tribalist regime policies have continued to exacerbate feelings of nationalism in societies across Central and Eastern Europe. With Ukraine’s entire identity under persistent threat as a result, UNESCO and the ICC have pleaded for an end to this decimation of culture.

About the Author: Shubhankar Sharan, a third-year student pursuing B.A. LL.B from Gujarat National Law University. Image by Christian Lue showing the European Union flags. Available here. Introduction The European Union (“EU”) recently announced the phased implementation of the Carbon Border Adjustment Mechanism (“CBAM”) Regulations. CBAM is a price adjustment mechanism for certain goods imported into the EU based on the amount of carbon dioxide emitted during the production of such goods. Broadly, CBAM aims to reduce carbon emission and encourage sustainable production to prevent climate change. Unsurprisingly, it has raised much discontent, especially in India, as the Minister of Power and New & Renewable Energy has highlighted that India may impose retaliatory tariffs in the face of CBAM Regulations. Given the currently disrupted global supply chains and a weak economic recovery rate, the undue risk that CBAM might cause a trade war should be minimized at best. In addition, this is not the first time a European Policy has come under the radar. A 2008 Directive of the European Parliament, which required airline operators to pay emission allowances based on the amount of carbon dioxide released during flights to and from EU airports, had already raised severe criticisms. Several countries, including the United States, India, and China, opposed the Directive and imposed retaliatory measures, including suspending major deals with European aircraft manufacturers. Against this backdrop, this piece attempts to elucidate the legal merits and reasonableness of retaliatory measures against the imposition of the CBAM Regulations, considering the possibility of violations of the World Trade Organisation (“WTO”) provisions and rules. Lastly, the piece puts forth mutual agreement as a tenable alternative to retaliatory measures. Nature of CBAM Regulations The European Commission (“EC”) will be implementing CBAM Regulations in phases. From January 1, 2026, the EU will begin imposing import tariffs on carbon-intensive products. In India, the 20%-35% tariff rates will affect steel and aluminum exporters, as well as producers of fertilizers, cement, and electricity. One major objection from EU trade partners is that proceeds from CBAM will contribute to the EU’s annual budget. This has reignited the debate about the responsibilities of the developed countries in taking responsibility for their previous emissions. The UNCTAD has raised concerns about the European Union tilting trade patterns favoring trade with carbon-efficient countries while neglecting developing countries. In addition to India, China has also questioned the regulations’ compliance with WTO principles, including the Principle of National Treatment and Non-Discrimination. For instance, the regulations run counter to the EU’s commitments towards the Most Favored Nation principle, which refers to discrimination between trading partners selling “like” products. Additionally, the CBAM Regulations potentially violate the ‘Common but Differentiated Responsibilities’ principle (“CBDR”) recognized in the United Nations Framework Convention on Climate Change (“UNFCC”). The CBDR principle ascribes different duties to take climate actions to countries based on their different capabilities. Least-developed Countries have flagged the Regulations as ignorant of varied national circumstances, resulting in disproportionate burdens on them. Further, CBAM Regulations’ potential limit on imports is a violation of Article XI of the General Agreement on Tariffs and Trade (“GATT”). In view of these potential legal discrepancies, the affected countries, including India, have reasons to either initiate retaliatory measures, such as CBAM-like regulations to offset the loss. Dispute Settlement Body and Associated Issues The potential issue highlighted above is sufficient for the affected countries to seek redressal from the WTO Dispute Settlement Body (“DSB”). However, even when a panel report is released after a lengthy process, there is no definiteness about its implementation as the parties have the option of appealing before the Appellate Body (“AB”). It further becomes uncertain considering the recent deadlock in appointing members to the AB. Hence, the appeal would be sent “into the void”. A dysfunctional AB ostensibly extends the timeline of disputes between the parties with no result in sight. Moreover, bearing in mind the costs incurred in facilitating a dispute at DSB, the countries may “take the law into their own hands” without utilizing the WTO proceedings, as expressed by the European Commission. Retaliatory Measures: A Look at the WTO Despite the attractiveness of retaliatory measures, there are distinct drawbacks. Retaliatory measures require express authorization of the DSB, as mentioned in Articles 22.6 and 23.2(c) of the Dispute Settlement Understanding (“DSU”). If authorized, the country can be exempted from complying with the most favored nation (“MFN”) principle and effect discriminatory treatment against other countries, thereby affecting the balance of trade. However, it must be noted that retaliatory tariffs are not mentioned in Article 22.1 of the DSU, which only mentions “compensation,” “suspension of concessions,” and “other obligations.” Instead, the retaliatory tariffs are implied in “suspension of concession” since discussions on “concessions” in former GATT rounds included tariff reductions. To prevent trade distortion and subsequent trade wars, the member countries had agreed not to impose unilateral retaliatory measures unless the arbitrators of the DSB grant permissions to do so, only to the extent as decided. It is further complicated when the country facing retaliation challenges the said measures on the grounds of violation of principles outlined in Article 22.3., which then sends the matter back to arbitration by the original panel. Article 23 of DSU provides the members with a recourse to redressal in case of violation of obligations by countries. For instance, in European Communities – Bananas III, Ecuador was not permitted to initiate retaliatory measures until the damages inflicted by the European Commission’s non-compliance with the DSB Ruling were determined. The underlying purpose of authorization of retaliatory measures is not about punishment but about rebalancing trade levels. In the process before the DSB, the parties first go through mediation. However, if a settlement is not achieved, the parties can move to the WTO for adjudication. After the release of the DSB report, the same can be appealed before the AB. However, in the current scenario, it is a frivolous exercise. Only when there is non-compliance with the Report or continuance of violation of WTO Rules the trading partners can seek remedy in the form of trade retaliation or compensation. Limits of Retaliation Article 22.6 of the DSU outlines the requisites to establish the upper limit of retaliation. Primarily, the amount authorized for retaliation shall not exceed the impairment suffered by the complaining county. Not to mention, the arbitrators in EC – Bananas III (US) have elaborated on the meaning of ‘equivalence’ as mentioned in Article 22.4 of the DSB. In simpler terms, the arbitrators in another case disallowed trade retaliation as a punitive measure while extending its scope only to nullification or impairment due to the flawed policy. The WTO uses the “Trade Effects” formula to determine the amount of retaliation to be permitted. Additionally, the panel ascertains the retaliatory measures in view of the nullification or impairment of the state’s benefits. To date, the DSB has authorized the adoption of retaliatory measures against the violator only seventeen times. However, trade retaliation is still considered a “last resort” remedy. It can be used only when the multilateral trading system cannot resolve the dispute. Loopholes in the System The procedural aspects of sanctioning retaliation indicate the undue time involved in “rebalancing” the position. For instance, WTO Arbitrators granted China the right to impose retaliatory tariffs on the U.S. imports after a decade-long dispute. Moreover, the U.S. also initiated WTO proceedings against India pursuant to the latter's retaliatory tariffs in 2019, which had not been resolved until the recent diplomatic efforts undertaken by the USA and India. Though subversion of the procedural rules is neither feasible nor advisable, the long-drawn dispute also bears significant repercussions on the retaliating country (commonly referred to as “shoot itself in the foot”) and the “innocent bystanders” of the country. Even if proceedings for retaliation are initiated, the violating country is not required to provide monetary compensation for the harm already caused. Further, when retaliation is sanctioned, the violating country is not required to rescind its illegal policy: it can choose to bear the retaliation concurrently with the implementation of the policy. Thus, the retaliatory efforts do not guarantee responses of compliance actions. Apart from it, the price of a breach is too low as nothing in the DSU ensures or obliges the actual imposition of retaliation. In a similar vein, the measurement method of equivalence amounts is not clear enough to avoid situations of under-compensation or over-compensation. The rebalancing act through retaliation necessarily requires accurate determination of the retaliatory amount. Retaliation through tariffs seems feasible, but it has negative consequences for business of both countries involved in the dispute. Given that the EU is India’s third largest trade partner, retaliation would only increase the cost of the targeted products, harming industries in both regions. Furthermore, the “sequencing” problem, as to when the WTO can authorize retaliation in case of non-compliance, further perpetuates ambiguities regarding trade retaliation. For instance, it is uncertain yet when the compliance period begins, highlighting a discrepancy between Articles 21.5 and 22 of the DSU. Mutually Agreed Solution: The Need of the Hour Article 22.8 of the DSU provides three situations under which retaliatory measures have to be withdrawn: removal of the illegal policy, arrival at mutually agreeable solutions, or the provision of a solution to nullification or impairment. Apart from these three scenarios, Article 3.7 of DSU ascribes clear preference to a mutually arrived conclusion. The enlarged scope of retaliatory measures aims at ultimately achieving mutually agreeable solutions. The underlying purpose is demonstrated in the withdrawal of post-agreement retaliatory measures through mutual agreement between the USA and the EU in the EC – Hormones case. Renowned disputes like US – Softwood Lumber IV have also been resolved by the parties under Article 3.6 of the DSU. Similarly, India and the USA announced their mutually agreed solution on 13 July 2023 regarding the retaliatory tariffs imposed by the former in India -Export Related Measures. To prevent hardships from arising in the initial stages, countries should engage in multiple rounds of negotiations to reach a mutually agreed solution. Therefore, the potential dispute between EU and countries raising objections to the CBAM Regulations should negotiate mutually agreeable solutions, which will cause little or no economic harm to either side. Conclusion The European Union is encouraged to adopt an internationally agreed upon legislative framework delimiting the scope of carbon border measures. If the current situation persists, multiple developing countries, including India, may devise their specific retaliatory measures or proceed with formal procedures to resist the Regulations. No parties want to dismantle the existing system for establishing an FTA over domestic regulations and incisive trade measures. Given that the global economy has emerged from a pandemic only to have immediately encountered inflation, a trade war is especially undesired. Retaliation will only contribute to our existing economic issues. Therefore, negotiating mutually agreeable solutions has an undeniable role in ensuring a fair assessment and country-specific equilibrium. The author would like to express gratitude to Mr. Varun Chablani for his guidance throughout the research and drafting process.

About the author: Adrija Guhathakurta is a law student with an ardent interest in international human rights law, gender justice, public governance, and technology governance. Adrija is currently pursuing a 5-year integrated BALLB Course at National Law University, Odisha. Adrija's research and experience involves Indian law, especially the application of the Indian Constitution, Special Acts for Women's Rights, State laws on Primary Education, Corporate & Commercial Laws, Administrative and Maritime Laws. Image by D. Talukdar depicting the Meitei Community in Moirang, Manipur. Available here. Introduction In March 2023, India’s Manipur High Court granted the Scheduled Tribes (ST) status to the Meitei community, affording them special protections like job quotas and land purchase rights. This decision intensified the long-standing disputes between the Meitei and Kuki-zho ethnic groups centered on property and resources. Concerns with Meitei’s potential dominance in India led to protests by the Kuki community and other minority tribes. Such tension escalated into violence on May 3, 2023, with a Kuki-led tribal coalition protesting across Manipur’s districts. Notably, the conflict is an ethnic one, not religious, despite a mischaracterization by the EU Parliament in a draft resolution on July 13, 2023. This resolution and numerous news sources indicated significant casualties and 60,000-70,000 internally displaced individuals. In response, the Manipur State Government deployed paramilitary forces on May 3, 2023, and the Union Government established a judicial commission and a peace committee, despite that the involved parties distanced themselves. Additionally, an internet shutdown from June to July 2023 hindered the media coverage. Since the violence erupted in the region, there have been multiple instances of migration of internally displaced persons to the nearby relief camps. Reports show that they do not even have the basic amenities required to survive during such conflicts. This blog explores how the situation has led to violations of the international standard of protection for internally displaced persons. Overview of the International Frameworks The United Nations acknowledges the absence of a universal special status for internally displaced persons (IDPs), with the current terminology being descriptive. Nonetheless, the UN Economic and Social Council has formulated the Guiding Principles on Internal Displacement (GPID), establishing global standards that member states are expected to follow to protect the rights of IDPs. These principles define IDPs as individuals forced to leave their homes within their country’s borders due to armed conflicts, widespread violence, or natural disasters. Noteworthy organizations like the International Committee of the Red Cross (ICRC), the Internal Displacement Monitoring Centre (IDMC), and the United Nations Council of Human Rights (UNHCR) play essential roles in researching and aiding IDPs worldwide. IDPs face key challenges including insufficient resources, safety issues in temporary settlements, and the persistent threat of violence in their new surroundings. What Does the Manipur Situation Mean for the Internally Displaced? The IDMC’s reports on India showcase that the majority of internal displacements are attributed to natural disasters. Therefore, there is a lack of internal displacement legislations in India that serve specifically the needs of people displaced due to conflicts and violence. The Disaster Management Act of 2005 and the Land Acquisition Act of 2013 provide certain rehabilitation and resettlement recourse to persons within the territories of India who have been displaced due to natural disasters. Apart from this legislation, there are only certain sets of fundamental rights, which protect all citizens and non-citizens and can be extended to include IDPs. Examples include Article 21 of the Indian Constitution, which provides for every individual’s right to life, and the Directive Principles of State Policy enshrined in the Indian Constitution, which list the maintenance of proper environment and livelihood of people as duties of the State. Regardless, the situation in Manipur has worsened over the last few months, as thousands of internally displaced individuals find refuge in relief camps without appropriate security or assistance. Amnesty International highlighted that IDPs in those camps have not been afforded proper housing, sanitation, food, or other necessary resources. This violates the very premise of the GPID, given that the first paragraph of its introductory note highlights these issues as the key concerns and Principle 7(2) mentions these parameters as primary assistance factors by the States. Women Have it Worse A recent video emerged and depicted the assault and public humiliation of two women in Manipur, leading to nationwide outrage. In response, on August 7, 2023, Chief Justice of India D.Y Chandrachud announced the formation of a three-member committee, consisting of former High Court Judges, dedicated to addressing issues related to sexual violence against women. The committee focuses on overseeing relief efforts, compensation, rehabilitation, and tackling the ongoing problem of sexual violence. Interviews have demonstrated the significant hardships that internally displaced women face in securing a stable livelihood in IDP camps. They begin their mornings with fear of being assaulted and many have not been able to bring their essential belongings, such as clothes and sanitary resources, with them to the relief camps. It is also important to note that India lacks specific legislations to safeguard women and children during conflicts. While laws like the Sexual Harassment of Women at Workplace Act (2013) and the Domestic Violence Act (2005) offer some protection, the scope remains limited. Only Section 375 of the Indian Penal Code, which addresses rape, is directly relevant, but such criminal allegations involve lengthy legal processes, making the pursuit of justice especially difficult for internally displaced women. Principle 7(d) of GPID explicitly highlights that the State authorities should give particular attention to the internally displaced women. Principle 18 further states that there should be full involvement of women in distribution of supplies during internal displacements. Principle 19 highlights the requirement for special healthcare aid for internally displaced women. The current situation of women, as reported by various news agencies and confirmed by Amnesty International, does not live up to the international standards and violates the principles of GPID mentioned above. The Internet Shutdown was an Unnecessary Hindrance In Manipur, ongoing violence prompted the government to impose an internet shutdown, which lasted until July 25, 2023. At that point, partial internet access was granted to residents but without a specified end date, making the partial access indefinite. On August 12, 2023, the Manipur High Court ordered the State Government to allow mobile internet services on a case-by-case basis by whitelisting devices. The Office of the United Nation’s High Commissioner of Human Rights’ (OHCHR) 2022 report on internet shutdowns highlighted that complete internet bans hinder humanitarian aid and government support in healthcare during violence, particularly for IDPs. The UNHCR’s 2020 report emphasized the importance of internet communications for aiding IDPs. Legislations like the Inter-State Migrant Workmen Act of 1979, which grants contractors substantial discretionary power to decide on the provision of healthcare and accommodation to migrant workers, could severely impede access to healthcare and assistance for displaced workers during prolonged internet shutdowns. A joint report by Human Rights Watch and IFF documented the challenges faced by displaced workers, who relied on government programs for rural employment during such shutdowns. According to OHCHR, restrictions on the freedom of expression should be “necessary, proportional and non-discriminatory.” Article 19(3) of International Covenant on Civil and Political Rights (ICCPR) provides two grounds for limiting the right to freedom of expression, including restrictions by virtue of law or in lieu of protection of national security, public order, public health, or morals. General Comment 34 of Human Rights Council (HRC) highlights that the restriction should not jeopardize the right itself. In the Manipur situation, the internet shutdown went on for almost two months, and the lack of internet connections barred the residents from communicating the situation to the outside world. This led to a growing sense of immunity amongst people who would inflict violence, leading to instances as depicted in the video about sexual assault. The internet shutdown was evidently disproportionate to the intensity of the violence and is not supported by law, as Rule 2(2A) of Telecom Suspension Rules 2017 (amended in 2020) clearly states that internet shutdowns should not continue for more than 15 days. Conclusion The situation in India’s IDP camps needs to be addressed immediately. Women are living in fear, and the internet ban has still not been lifted fully, as people in Manipur cannot use the internet on their mobile phones. The relief camp establishments have been reported to harbor as few as 20 toilets for hundreds of displaced individuals, along with minimal food resources available. First, the situation of the heightened risk of sexual violence against internally displaced women of the region should be carefully addressed. The all-women committee set up by the Supreme Court should not only look into matters concerning those affected within the boundaries of Manipur, but also make detailed accounts of the situation of internally displaced persons in the nearby relief camps, specifically in the case of women, children, people with disabilities, and other marginalized individuals. Second, the Indian Government should establish effective internet governance in Manipur, following the UNHRC’s report on Internet Governance in Internal Displacement, and emphasize the importance of connectivity in disaster or conflict-affected regions with mass migration of the internally displaced persons. The concept of Internet Governance, as highlighted by UNHRC, seeks to connect IDPs with assistance mechanisms including governmental and international agencies. Initiatives should begin by lifting the internet ban in Manipur and potentially imposing the President’s rule, under Article 356 of the Indian Constitution, which allows the Union Government to suspend the State Government and take over the administration through the centrally elected State Governor. This would ensure the facilitation of a centralized administration and the control of security forces by the Union Government. This would further enable central collaboration with organizations, including the UN’s Emergency Telecommunications Cluster (ETC) and local NGOs, such as All-Manipur Kuki Displaced Persons Association and Women Action Development Agency. Further, as demonstrated in the case of Mizoram, where the government raised funds for IDPs, funding and involvement from other state governments would enhance these collaborative endeavors. The long-term goal of India should be to focus on inculcating, in the existing legislation on protection of vulnerable groups, the duties of the State in serving the needs of internally displaced persons during both natural disasters and internal violence and conflicts.

About the Author: Sergiy Panasyuk is a Lecturer at the Department of Constitutional Law of Charles University (Prague, Czech Republic), a professor at Ukrainian-American Concordia University and European University (Kyiv, Ukraine), a Visiting Fellow at Cologne/Bonn Academy in Exile (CBA) (Cologne/Bonn, Germany), and a former academic consultant of a Judge of the Constitutional Court of Ukraine (2017-2022). He can be reached at s.a.panasyuk@gmail.com. Image by Bondart. Available here. Introduction A year and a half after the Russian full-scale military invasion of Ukraine, the prolonged nature of this conflict is evident, and there are no visible possibilities to cut such a Gordian Knot without a win on the battlefield. There is also no legal ways to “cut” any part of Ukrainian territory to calm the aggressor. Despite political speculations, expert opinions, and careless statements of NATO officials—who later had to apologize—the prospect of negotiation is legally unrealistic. Even if the Ukrainian government finds itself in a situation where negotiations and peace agreements appear to be the only ways to stop the war, such measures are likely viewed as illegal. They can lead to public dissent, domestic protests, and even a new wave of revolutionary movements in Ukraine. It is clear that any possible negotiations will at least focus on two critical issues: territorial compromise and Ukraine's future NATO membership, both of which appear unattainable. Moreover, the statement of American lawyer and US senator, Lindsey Graham, advocating for free and fair elections in Ukraine next year, even during the ongoing war, struck as peculiar. In response to Senator Graham's statement, the Secretary of the Ukrainian Council of National Security and Defense asserted that Ukraine’s actions would align with the Ukrainian legislation and Constitution, rather than the wishes of some of its respected partners who presumed that the Ukrainian government could violate laws. It is clear that without a thorough expulsion of Russian troops from Ukrainian territory, a de-facto military win, any elections or negotiations remain unrealistic. The prospect of negotiation presents legal perplexity. The first issue that would arise in any negotiations is “cutting” a portion of Ukrainian territory, which seems implausible because of the difficulty of obtaining endorsement from the Ukrainian Parliament, the Referendum, and the Constitutional Court. While some political actors may frame such a territorial compromise as a temporary measure to save Ukrainian soldiers' lives, it is hard to imagine that the majority of Ukrainian Members of Parliament (MPs) would vote for relinquishing control, even temporarily, over the occupied territories. Such a move would likely face major public dissent, making it a risky venture outside the Parliament. People would likely reject such an agreement, given that any territorial changes necessitate validation through a national referendum, which is legally prohibited during martial law. Even if the government could suppress public protests and falsify the voting, the Constitutional Court, acting as the Constitutional gatekeeper, can still stop government actions at any stage. Meanwhile, in case the Court could not perform its duty, the populace would further demonstrate their opposition as the ultimate source of the state’s power. This scenario could potentially trigger a revolutionary movement. The second main issue for negotiation, absent a military win, is the future NATO status of Ukraine. In this case, we should first remind our readers that after constitutional amendments in 2019, the pursuit of NATO membership is officially enshrined within the Ukrainian Constitution as a national choice. The Parliament, the President, and the Cabinet of Ministers are constitutionally obliged to support this objective. Despite academic discourse and separate opinions of six judges of the Constitutional Court on certain aspects of these constitutional amendments, the Constitutional Court upheld the constitutionality of such changes. Excluding the "way to NATO" from the Constitution would require two rounds of voting in the Parliament and a Constitutional Court review. However, the main hurdle remains the constitutional prohibition on any amendments of provisions during the period of martial law. Even if the Ukrainian government finds ways to stop martial law and starts the amendments procedure, repealing the amendments still requires review by the Constitutional Court. Otherwise, the revolution scenario is also inevitable. In addition, facing terrible corruption during the war, the Ukrainian nation is critically sensitive, so public dissent might "explode" quickly during potential negotiations with Russia without winning the war. The author does not think Ukrainian authorities will take such a risk to violate the constitutional provisions or push the nation to take desperate steps. Therefore, any discourse about potential negotiations with Russia without a military win appears to be either a probing of international or Ukrainian official responses, or merely media sensationalism. Unrealistic elections in 2024 In the author's view, the statement by Senator Graham might be interpreted as political provocation, or simply a lack of understanding of Ukrainian laws. Regardless of Senator Lindsey Graham’s intent, the elections in Ukraine in 2024 are improbable without a military win. According to the Ukrainian Constitution, regular Parliament elections in Ukraine should occur on the last Sunday of October of the fifth year term. The Presidential elections should be on the last Sunday of March of the fifth year of their term. Given that the Parliament was elected in July 2019, the elections are due this October. However, pursuant to the President's decree, the Parliament extended the martial law till November 15, 2023, which logically will be extended again till the end of the war. Consequently, the parliamentary elections can only occur after martial law ends. However, there is a possibility to have the Presidential election in March 2024 if the war ends soon. Senator Graham mentioned the need for an election next year even if the war continues. Theoretically, there are two legal ways to realize such a plan: 1) discontinuing the martial law regime or 2) changing the legislation to allow elections during the war. Ending the martial law during Russia’s full-scale aggression seems dangerous for Ukraine’s national security. It can be no more than a political "wishlist" and only plays into the hands of the aggressor. Changing the domestic legislation regarding the parliament elections will not work because the Constitution mandates the incumbent Parliament to continue its term till the end of martial law. Although the Constitution is silent on presidential elections during the martial law regime, such a proposal appears dangerous as the risk of attacks during voting is real. Therefore, the US Senator seemed to have encouraged Ukraine to take irrational steps. Conclusion Upon examining the aforementioned issues, it seems clear that any peace agreement with Russia without a factual military win would face legal hurdles. It is true that democracy provides an effective mechanism for authority transition and corruption could undermine any democratic regime. While the Ukrainian authority has its shortcomings in some of its actions, pushing the Ukrainian government to start illegal negotiations or hold elections that may pose a danger to its national security is not a way to combat corruption or effectively promote democracy. The termination of warfare without a Ukrainian victory is also unrealistic. Ukraine’s defeat in the war would likely lead to a new war after a while, possibly on the territories of EU countries. After all, if you give the beast to bite off a finger, it will definitely covet your hand.

About the Authors: Ashutosh Anand is an undergraduate law student at the National University of Study and Research in Law, Ranchi, India. He can be reached at ashutosh.anand@nusrlranchi.ac.in. Kaustubh Kumar is an undergraduate law student at the National University of Study and Research in Law, Ranchi, India. He can be reached at kaustubh.kumar@nusrlranchi.ac.in. Image by Kevin Schmid available here. Introduction Since the beginning of the Russia-Ukraine war, investors have strongly felt the need for remedies offered by international investment arbitration in light of the injury and vulnerability to their investments in Ukraine. Considering this, claims for material damage compensation are a common component in every dispute of investment arbitration. Tribunals comprehensively deal with such claims but do not provide much heed to another type of damages, i.e., moral damages. Moral damages, or non-material damages, are awarded to remedy the non-material injury, such as individual suffering or agony, loss of loved ones, or personal aspersion concerning an incursion upon one’s home or private life. The claims for moral damages in investment arbitration are relatively recent, but their significance and frequency have grown in recent years. Moral damages in international investment arbitration can play a decisive role in the recent Russia-Ukraine war. Formerly, during the Crimean invasion in 2014, Ukraine’s lawfare response through investment law to the Russian incursion presented an instructive and unique case study of the systematic use of legal means against a belligerent State, and the same could not be a far-flung expectation in the current war. Therefore, it becomes essential to discuss some ambiguous aspects of moral damages. One such ambiguity arises when the legal entity claims moral damages on psychological or emotional grounds. It is a settled law that a legal entity can only suffer from reputational harm, as it is erroneous to deduce that a legal entity can bear any psychological violence or emotional distress. However, some tribunals, going contrary to the general rule, have granted the legal person, i.e., the entity, the claim for reparation of moral damages based on psychological violence or emotional distress, which was endured by the entity’s employees. This has resulted in a discrepancy in law. With the primary objective of examining whether a legal entity/corporation can claim moral damages based on psychological or humane causes, this piece begins by analysing the present legal regime related to moral damages from the gargantuan lens of international investment law. Then, the piece sheds light upon the general rule concerning a corporation’s claim for moral damages on a psychological basis. Additionally, the piece analyses the Desert Line v. Republic of Yemen case, which has constructed an innovative jurisprudence on this issue. Towards the end, the piece argues for the flexible approach of the inclusion of humane causes for a legal entity’s claim, which is best suited to meet the ends of justice. Moral Damages and the Current Legal Regime Compensation of moral damages originates from the obligation under customary international law of full reparation, whether material or moral, of an injury created by an internationally wrongful act. Article 31(1) of the International Law Commission Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001 [hereinafter “ILC provisions”], mentions the expression “full reparation.” Further, Article 32(2) of the ILC provisions state, “injury includes any damage, whether material or moral….” Moral damages may remedy multifarious non-material harm in investment arbitration, including damages to reputation and personality, as well as loss of business credit, reputation, goodwill, and opportunities in the case of legal entities and corporations. Although certain tribunals have acknowledged moral damages as a potentially legitimate basis for recovery under international law, awarding moral damages in international investment disputes is still relatively uncommon. Tribunals are usually cautious of claims of moral damages, strictly examining the grounds for awarding the damages and capping the amount granted . Nevertheless, some Tribunals have considered granting moral damages to the aggrieved parties, including legal entities, by relying on certain tests, such as award under ex æquo et bono competence, exceptional circumstances test, and malicious and fault-based conduct of the state test. Moreover, reiterating the foregoing ILC provisions, a plethora of ICSID Tribunals, in addition to Tribunals of other jurisdictions, have frequently provided that there is no provision in ICSID Convention, Arbitration Rules, and Additional Facility that bars the Tribunal from awarding moral damages, and that international arbitration tribunals are fully competent to award compensation for moral damages. Accordingly, it is irrefutable that reparations based on individual pain and suffering are valid claims that fall under the category of moral damages. Psychological Damage: Deciphering General Rule Regarding Moral Damages An individual may experience psychological violence, emotional distress, or any other suffering of that nature. Nevertheless, by applying common reasoning, it can be surmised that a legal person cannot have such a privilege. As a result, moral damages such as mental harm or emotional distress cannot be claimed by a legal person. However, if the investor is an individual who is protected under the investment treaty, that person may, indeed, experience mental distress or psychological abuse and hence be eligible to claim compensation. Another exception to this general rule is the incorporation of the “Full Protection and Security” clause (hereinafter “FPS”) in the agreement. The FPS clause is the relevant instrument that empowers the corporation to claim such damages in front of an arbitral tribunal. The host State has a responsibility under the ‘FPS standard’ to (i) not harm investors/investments by the actions of State organs or actions otherwise attributable to the State and (ii) protect investments and investors from private parties during times such as civil unrest. Therefore, under the presence of the FPS clause, an entity can claim damages on behalf of its employees on physiological and moral grounds. Desert Line Dictum: Going Away from the General Rule Although the general rule of moral damages favors the law that a corporation cannot claim moral damages by citing psychological distress, the Desert Line v. Yemen case offered a novel perspective to the issue. It is one of the first and landmark cases concerning moral damages. In this case, the Claimant-Corporation claimed the amount as moral damages under three heads: breach of the obligations under the investment treaty by the Respondent, psychological violence suffered by the corporation’s executives, and loss of reputation suffered by the corporation. The Tribunal accepted that moral damages were available to both legal and natural persons due to the harm resulting from the violation of an investment treaty. The Tribunal awarded moral damages based upon the loss of reputation of the Claimants. However, upon closer examination of the argumentation leading to the conclusion of reputational harm, it becomes evident that the Claimant contended that its executives faced anxiety and stress of being threatened, harassed and detained by both the Respondent-State and the armed tribes as well. The Claimant’s executives were also alarmed by the Respondent-State with respect to the Contracts. As a consequence, the Claimant has suffered a considerable injury to its credit and reputation. The strength of the argument was based on the individual pain and suffering of the employees. Consequently, the Tribunal awarded the Claimant US$ 1,000,000, recognizing that the Claimant’s “prejudice was substantial since it affected the physical health of the Claimant’s executives and the Claimant’s credit and reputation.” While taking into consideration the lines produced above from Desert Line, it is noteworthy that the Tribunal not only described the loss to the company (credit, reputation and prestige) but also mentioned the harm to the company’s executives as primary to its reasoning in favor of moral damages. Therefore, it can be asserted that the Tribunal upheld the principle that a corporation can claim damages based on the actions that harmed members of its staff. Way Forward: A Strict Application of Rules Appear Strenuous to Justice Despite being contrary to the general rule, the Desert Line decision has been applied by multiple Tribunals in determining whether a corporation can claim psychological damages. However, it is pertinent to note that the Desert Line Tribunal failed to provide the rationale for its reasoning connecting the psychological violence suffered by the executives of the corporation to reputational harm, which led to the award of moral damages to the Claimant-Corporation. A more detailed explanation in this regard would have bolstered the precedential value of the decision. Nevertheless, going along with the rigorous application of the standing rules precludes compensation to the corporation for damage to the personal rights of the executives. Such an approach might result in practical difficulties. For instance, if these harms are excluded, and the appropriate place for filing such a suit would be local courts, in the words of scholars like Dr. Sabahi (Sabahi 2011, 139-140) and Dr. Dumberry (Dumberry 2010, 247), these courts might be unable to manage the case with the degree of independence as desired or provide justice to the aggrieved party. Multiple ICSID Tribunals have endorsed this view. To remedy this legal limitation, one could refer to the state espousal doctrine, which is dictated by the Vattelian fiction that an individual’s injury is equal to the home state’s injury of the individual, to envisage a doctrine of ‘corporate espousal,’ through which injury to an employee of a corporation would be regarded as injury to the corporation itself. This is the underlying premise from which the right to claim moral damages arises and can be employed in disputes arising out of the recent Russia-Ukraine war.