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Vigil for Sarah Everard in Sheffield by Tim Dennell Article by Paulina Montez, The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is one of the most broadly endorsed human rights treaties, often thought of as an international bill of rights for women. While the majority of states have ratified the Convention, our reality looks significantly different from the aspirational words that states have endorsed. Sarah Evergard’s murder recently triggered widespread anger over the dangers that women face. Women of intersecting identities face heightened dangers. The recent killings of eight people, six of which were Asian women, at spas across Atlanta further reflected the importance of recognizing and protecting women who come from multiple identities. Even over forty years after the Convention’s creation, it remains vital to assess how it has changed the landscape for women, to critique how it has enabled states to continue discriminatory practices, and to think creatively about ways to use the Convention to further advance gender equality. The United Nations General Assembly adopted CEDAW in 1979 and it has since garnered widespread support: over 180 countries have ratified the convention, two have joined as signatories, and only six countries have not indicated interest in becoming parties. CEDAW’s provisions protect the political, legal, civil, and economic rights of women. CEDAW requires that parties establish tribunals and other institutions to ensure protection of women against discrimination. Additionally, parties must ensure elimination of all acts of discrimination against women by persons, organizations, or enterprises. Finally, CEDAW's provisions require parties to report the measures they have taken to comply with the obligations at least every four years. CEDAW has improved gender equality in some state laws and amendments. Legislation changes have addressed domestic violence, sexual harassment and rape, and trafficking. For example, Turkey changed its laws to increase the marriageable age to 17, and Uganda created and funded programs to reduce domestic violence after ratifying CEDAW. The CEDAW Committee (“the Committee) also works to investigate violations of CEDAW and makes legally binding recommendations, as it did in 2018 when it investigated abortion access in Northern Ireland. However, CEDAW has been widely criticized for its significant amount of ratifications with reservations and its lack of intersectionality and specificity. Nonetheless, some local governments that belong to a non-party state have utilized CEDAW to promote gender equality. These efforts showcase how local governments can use human rights treaties as examples to emulate and to improve upon CEDAW’s weaknesses. Local governments can and should attempt to fill the gaps left by states who either fail to ratify human rights treaties or who do not reflect the treaties’ principles in practice. CEDAW Committee’s Promotion of Gender Equality CEDAW created the Committee in part to monitor parties’ implementation measures. The Committee reviews parties’ reports, issues recommendations, considers complaints of violations, and launches inquiries into Convention violations. The Committee's recommendations are instrumental in highlighting gender discrimination and exerting political pressure on states to amend laws. In 2010, the Committee launched one such inquiry into accusations that the United Kingdom, a party to CEDAW, had committed grave and systematic violations of rights under CEDAW by restricting access to abortion in Northern Ireland. At the time of the investigation, abortion was criminalized in Northern Ireland, and the availability of abortions was highly restricted. In response to the inquiry, the UK argued that abortions were allowed in certain circumstances, prosecutions for having an abortion were rare, and citizens of Northern Ireland had the option to travel to other countries to access abortion services. Nonetheless, the Committee found that the limitations on access to legal abortions in Northern Ireland promoted institutional and geographical limitations, reduced clarity on when legal abortions could be performed, and resulted in a downward trend of clinicians’ willingness to perform abortions. It also found that the criminalization of abortions adversely impacted women in poverty, women who were impregnated through rape or incest, and women with fatal fetal abnormalities. Finally, the Committee found that the inadequacy of family planning support resulted in young people being denied the right to sexual health education and information as well as access to reproductive health services and contraceptives. In light of its findings, the Committee concluded that the UK committed grave and systematic violations of rights enumerated under CEDAW. Therefore, the Committee recommended that the UK repeal legislation that criminalized abortion, provide greater access to abortions, and promote sexual and reproductive education. In July 2019, MPs voted 332-99 in support of amendments to the Northern Ireland (Executive Formation) Bill to impose duties on the government to legislate for abortion reform and to implement the Committee’s recommendations. Grainne Teggart, Amnesty International’s Northern Ireland Campaign Manager, said the move was a “signficant defining moment” for womens’ rights in Northern Ireland, and that the government was now required to codify CEDAW’s recommendations, including decriminalizing abortion. In October 2019, Northern Ireland decriminalized abortion. Although restrictions on abortion still remain and the move to decriminalize abortion was not a direct result of the Committee’s inquiry, the inquiry provided support for women’s rights advocates to pressure the government into abiding by their international law obligations to support gender equality. CEDAW’s Limitations – Reservations, Intersectionality, and Specificity Although CEDAW is one of the leading human rights conventions for gender equality, it has also been heavily criticized for its extensive reservations and lack of intersectionality and specificity. Reservations allow states to ratify CEDAW but only legally bind themselves to provisions with which they want to comply. 48 parties have ratified CEDAW with reservations, making it one of the human rights conventions with the most reservations. Moreover, Article 2, which outlines the measures that states must take to eliminate discrimination, is one of the provisions with the most reservations. Parties have cited religious, cultural, and legal reasons for being unable to abide by the provisions. As a result of a party’s ability to evade accountability, a party can continue supporting discriminatory practices such as female genital mutilation (FGM), virginity testing, and domestic violence. The Committee has indicated that reservations in response to Article 2 are contrary to the object and purpose of CEDAW, exacerbating its limits. When states ratify CEDAW with reservations to core provisions, they actively indicate their lack of interest in substantially changing their legal systems to reflect ones that promote the advancement of gender equality. While some states have withdrawn their reservations as a result of pressure from the CEDAW Committee, most have maintained them. CEDAW has also been criticized for its inconsistent approach to intersectionality. It does not contain any provisions that specifically address women’s interactional identities. This gap promotes a framework that characterizes women as facing only gender discrimination as opposed to also experiencing other forms of discrimination like racism, classism, ethnocentrism, and heterosexism. The Committee’s reports frequently reference intersectionality. However, the intersectional analysis is not always consistent and is sometimes wholly nonexistent. The convention has also been criticized for failing to address the specific needs of women in situations that do not reflect those of the standard western lifestyle. For example, Mali ratified CEDAW with no reservations in 1985. However, as the convention does not address FGM, Mali has failed to criminalize or even take a clear stance against FGM. A 2018 study found that 88.6 percent of women aged 15-49 in Mali have undergone FGM in some form. It was not until a 2020 Committee report that the Comittee condemned Mali’s failure to criminalize FGM, accusing it of grave and systematic violations of CEDAW. Further, CEDAW’s lack of specificity compounds the negative effects of its extensive reservations and inconsistent approach to intersectionality to permit the continuance of discriminatory practices. While states are required to take appropriate measures to eliminate discrimination, they lack any guidance dictating what appropriate measures look like. Although some parties have enacted legislation that seemingly promote gender equality, women continue to face discrimination in contradiction with CEDAW principles. For example, the Philippines ratified CEDAW without reservation in 1981. In 2009, the Philippine government enacted the Magna Carta of Women (MCW) that reflects the convention’s provisions and similarly mandates the state to change legislation to end discrimination. One of its goals was to increase the number of women in government positions to achieve a 50-50 balance. The Philippines has made some progress; for instance, the number of women judges in lower courts grew from 28% in 2009 to 49% in 2018. However, Philippine civil society organizations submitted a report to the Committee in 2016 to assist in the review of the state’s compliance with CEDAW. The report found that, despite the MCW’s enactment and its mention of sexual orientation and intimate relationships of LBT people, the government needs to do more to prevent, document, mointor, and folow up on cases of discrimination based on sexual orientation and gender. A lack of enforcement, limited capacity to enforce, and weak accountability hinders parties from actually eliminating gender discrimination. Using CEDAW as Guidance for Local Change Despite the Convention’s limitations as an instrument of international law, it has served as an effective guide for local governments in advancing local change. The US is one of the few states that has failed to ratify the Convention. Although former US President Jimmy Carter signed the Convention in 1980, the US Senate failed to ratify it. Ratification in the US requires consideration and recommendation by the Senate Foreign Relations Committee and support from two-thirds of the US Senate, so ratification in the near future is unlikely. As a result of the legislative barrier, San Francisco adopted a local ordinance in 1998 which reflects this Convention’s principles. The ordinance continues to require the use of preventive measures to ensure the city’s resources, policies, and actions do not discriminate against women and girls. The ordinance created the CEDAW Task Force, which conducts studies on gender discrimination and creates guidelines to assist parties in implementing the ordinance’s principles. One study of employees’ work-life balance needs resulted in citywide changes including the creation of new telecommuting policies and generous and expansive paid parental leave. Moreover, the San Francisco Gender Equality Principles Initiative helps promote the ordinance’s principles in the private sector by providing companies with practical standards, tools, and resources. Finally, San Francisco’s initiative inspired the Cities for CEDAW effort to fill the gaps left by countries that fail to ratify the Convention or that inadequately address gender equality. A Path Forward The COVID-19 pandemic has highlighted the realities of many women across the world. In April 2020, the United Nations called for nations to act and combat the surge in domestic violence resulting from victims being stuck with their abusers due to lockdown measures. A recent UNICEF report also highlighted that millions of underage girls are at risk of being forced into marriage as a result of the pandemic’s financial strain on families. Parties to CEDAW agree to promote gender equality while simultaneously and consistently failing to do so. Women’s rights activists fight an uphill battle; activists in Mexico have been sexually and physically assaulted while protesting gender-based violence and have been accused by the Mexican president of manipulating the issue of femicides. As is the issue with most international law instruments, CEDAW suffers from the fact that a state has the power to choose its level of accountability by ratifying with reservations or not ratifying at all. Additionally, CEDAW’s substantive limitations further reduce states’ obligations. Without significant reforms to the convention, human rights advocates must resort to other creative approaches, such as the local approach in San Francisco and other cities, that use international law instruments as a framework and have the flexibility to build upon the instrument’s weaknesses. Author Paulina Montez is a J.D. Candidate at UC Berkeley School of Law. She is interested in the intersection of international human rights law and criminal law.

Peace Palace, The Hague by R. Boed Article by Julia Bennett, The International Court of Justice (ICJ) has a complicated role in the regulation of environmental harms. The ICJ heard its first case concerning the environment in 1973, just one year after the Stockholm Conference brought environmental harm to the international agenda. While this early interest hinted that the ICJ was going to take an active role in environmental regulations, they have since failed to hand down many environmental rulings. As a result environmental law scholars have suggested the creation of an International Court for the Environment. ICJ as a Means for Achieving Pro-Environment Rulings In 2010, Australia sued Japan in the most prolific and progressive public environmental law case that the ICJ had ever decided. Australia challenged Japan’s whaling program, alleging that it was in violation of the International Convention for the Regulation of Whaling which both states had signed in the 1980s. Specifically, Japan had created a scientific whaling program through which hundreds of whales were killed annually. They claimed that this program was legal under an exception to the treaty. In 2014 the ICJ ruled that this program did violate the treaty and ordered Japan to stop the program. This case was, in many ways, the most successful direct ICJ ruling on environmental harm. ICJ as a Means to Initiate Negotiations Since the ICJ does not hand down many environmental rulings, states have had to use the ICJ to promote environmental justice in other ways. Perhaps the ICJ’s strongest effect on regulating environmental harms is in initiating negotiations on previously deadlocked conflicts. For example, in 2006, Argentina initiated litigation against Uruguay, contending that Uruguay's erection of pulp mills on the River Uruguay violated an 1875 bilateral statute governing the two countries’ use of the river. Argentina contended that the two mills that Uruguay built affected water quality. The ICJ took a progressive approach to the conflict: the Court gave serious consideration to several environmental arguments, especially the importance of environmental impact assessments. The ICJ ultimately ruled that the mills could remain open since they did not pollute the river, but noted that Uruguay had failed in not informing Argentina of their activities. While the court's ruling fell short, Argentina and Uruguay were actually able to engage in important negotiations that pushed the two countries towards resolution by engaging the ICJ. In 2010, Uruguay and Argentina established a joint coordination of activities on the river, as the Court had recommended. Similarly, the ICJ helped push Colombia and Ecuador towards resolution on a case surrounding the use of aerial spraying of herbicides. Between 2000 and 2007, Colombia used aerial spray on cocoa plants in a bid to stop cocaine production. Ecuador claimed that these herbicides blew across the border and harmed the environment, crops, animals, and people in the border region. The case raised novel issues of transboundary environmental harm with which the ICJ had never before grappled. Nonetheless, the ICJ’s involvement had an important, albeit indirect, impact on the conflict’s resolution. During their pursuit of ICJ litigation, Colombia and Ecuador were also engaged in negotiations. The litigation process encouraged Ecuador and Colombia to reach an agreement in their negotiations so they themselves could set the terms. In 2013, the parties announced that Colombia would accept limitations on their use of aerial herbicide sprays to prevent cross-border contamination. While the ICJ’s ability to prompt negotiations on deadlocked conflicts is certainly positive, many environmental issues remain unresolved because the Court hears very few such disputes. One solution is the creation of an International Court for the Environment (ICE). International Court for the Environment ICE would have several advantages over the ICJ, namely its scope and mandate would be dedicated to environmental justice. Specifically, it could: (1) create a centralized system available to a variety of actors; (2) produce an international standard of care; (3) improve international law on the environment; (4) maintain consistency in judicial decisions; (5) promote preventative action; and (6) enforce existing treaties. The creation of ICE is a viable solution that has gained broad support by environmental law scholars. Experts envision ICE, with its own scientific body, having broad coverage, direct access to NGOs, private parties, and states. While this concept may sound novel, it is not new: ICE was first proposed in 1999. ICE is even more relevant today than it was in 1999. Traditional mechanisms suffer from a participation deficit, especially as the interests of actors become increasingly multifaceted. In addition, different actors have different environmental needs. In recent years non-state actors have emerged as key players in international environmental governance. Therefore, a system that actively includes non-state actors will be necessary to truly regulate environmental harm. One of ICE’s many strengths is its emphasis on including a variety of actors. Allowing non-state actors to bring claims would produce more rulings on environmental harm, especially in regions where state actors are not incentivized to mitigate environmental damage. ICE would help address the current climate crisis by holding states to their commitments to existing and future climate agreements, regardless of changes in governments, economic conditions, or political relations. In the Meantime While international environmental law scholars are in near total agreement that ICE would be the most effective means forward, they also recognize the slow speed at which the UN and international community at large moves. In the past, an international court could be promulgated only after years of negotiations to create an international court. Stephen Hockman, an environmental lawyer, noted that “historically at least, the creation of international institutions and the development of international law have occurred, generally, at somewhat glacial speed.” The international community should continue to push for ICE; at the same time, it should work to refine existing mechanisms, like the ICJ, for regulating environmental harm. Despite its limitations the ICJ has shown potential in handing down direct pro-environment rulings. As the ICJ has stated, there is a “general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment”. Author Julia Bennett (J.D. Candidate, Class of 2023) is a Contributor to Travaux. Her interests include human rights law and public policy. Julia graduated from the University of St Andrews in the U.K. with a degree in International Relations and Modern History. Julia is currently working with Berkeley's chapter of the International Refugee Assistance Project.

Greening China's Belt and Road Initiative by World Economic Forum Article by Hiep Nguyen, China considerably ramped up its trade investments throughout Eurasia, Africa, and South America during the four years in which the Trump Administration scaled back the United States’s global presence. As the US withdrew from multilateral trade pacts such as the Trans-Pacific Partnership (TPP) and sought to slash foreign aid and investment, China accelerated its global economic presence under the Belt and Road Initiative spearheaded by Chinese President Xi Jinping. The ongoing plan involves massive infrastructure, telecommunications, and capital investment into smaller Asian, African, and European countries. It largely filled the void of previous Western-backed multilateral trade agreements such as the failed TPP. These efforts increased the flow of goods and money into China and also served as a bold effort to re-center global trade around Beijing. Within its Belt and Road trade relationships, China’s investments and offer of billions of dollars in subsidies to under-resourced nations enabled the state to write lax labor, environmental, and conservation stipulations that favored their companies. The loose standards often flouted tougher rules that the US and its allies previously sought from foreign investment and trade deals. Although China’s investments have boosted the incomes and infrastructures of many of the countries it has invested in, Beijing is now facing headwinds and extensive pushback for its laissez-faire trade approach. Multiple countries have accused China of using Belt and Road to conduct territorial incursion, violate labor and environmental rights, and broker one-sided agreements that shortchange participants. With a new US administration moving rapidly to re-invigorate its values-based multilateral trade relationships and undo four years of isolationist policies that created the void that Belt and Road filled, Beijing may have to fundamentally alter its approach to keep the trade renaissance going. Transportation Infrastructure in Asia China’s plan to place itself at the center of the global economy began with more closely interconnecting its neighbors in Asia with major Chinese cities. China spent $400 million sponsoring 253km worth of high-speed rail links connecting rural Thailand and Laos to the Kunming rail depot in Southwest China, among other rail projects in Tibet and Xinjiang. The investments have also continued past East Asia. In Central Asia, Xi laid the groundwork for a Trans-Himalayan Economic Corridor. The plan involved building new smart-lane highways in Tibet and developing Tibetan border towns to serve as Chinese trading entrepots with neighboring Nepal and India. Beijing also built roads that allowed Nepal to receive goods without using Indian infrastructure. These transportation efforts, which operate mostly using Chinese rolling stock and signaling equipment, not only funnel millions of dollars back to Chinese construction companies, but would also more tightly interweave Asian freight and passenger networks around China. The investments promote China as an attractive destination for imports and exports with its regional trading partners. While Beijing claims that these investments have the added benefits of greatly reducing travel time and cost of goods for local populations, multiple countries have been incredibly uneasy about an increased Chinese economic and political presence in their backyards. Malaysia and Singapore have nixed investments in train segments that would have rapidly reduced travel time to 90 minutes between Kuala Lumpur and Singapore, citing crippling debt obligations and cost overruns that would mostly go to Chinese companies instead of local citizens. India and Bhutan have also argued that the construction of Chinese roads and establishment of entrepots along their borders–especially the presence of vacant Chinese military establishments in the Doklam Plateau–amount to brazen territory grabs that are difficult to reverse. Natural Resources and Manufacturing in Africa In addition to improving road and train infrastructure in Asia, China has also made an extensive play for natural resource and manufacturing supply chains in Africa. It has funded hydropower plants in Angola and Guinea, bankrolled the construction of state oil refineries in Nigeria, and heavily invested in leather factories in Ethiopia. The Chinese have also funded the training of thousands of garment and manufacturing workers in Kenya and Tanzania. These manufacturing initiatives—90 percent of which are privately bankrolled by Chinese firms—increase trading connections and money flow between China and African countries. They also greatly expand Chinese political influence over decision-making by African states, who are often met with lopsided Chinese leverage as China provides almost all the funding and earns interest on debt used for these projects. These circumstances often enable China to write labor, environmental, and conservation terms in its favor. While China argues that its efforts have resulted in more resilient infrastructure, income levels, and institutions, skeptics of increased Chinese investments have accused Beijing of shortchanging the environment and workers. They cite allegations that Chinese companies illegally exported rosewood and zebu cattle and poached rare wildlife in Zambia and Mozambique. Although Chinese companies have increased skilled labor training for African workers, they have also stymied the formation of unions, enforced unjustly long working hours, and refused to increase safety procedures in factories. Exports in Europe At the western end of China’s Belt and Road network, Beijing has markedly increased its exports to European Union countries. In fact, China is now the EU’s leading investment partner as of 2021, overtaking the US. EU imports from China grew by nearly 2.2% last year alone. Chinese companies now distribute cars, phones, medical equipment, and green energy inverters throughout Belt and Road. Chinese financial firms have also gained a foothold in Europe as stores now accept Chinese payment methods such as AliPay and WeChat to accommodate the surge of Chinese tourists to the EU. Moreover, Beijing-based groups have swept in to invest throughout Southern Europe where the Eurozone debt crisis has hit countries the hardest. As a result, Chinese companies now own Italian tiremaker Pirelli and have a 67% stake in Piraeus (a major Greek port). However, increased Chinese presence in the European bloc has not been without criticism. EU regulators have accused China of asymmetrical market access by restricting European companies from accessing their domestic markets and simultaneously taking advantage of free markets in other countries. Curtailing this imbalance was a major focus of the 2021 EU-China Trade Agreement as populist and nationalist parties often cite the disparity to rile up their bases and destabilize European unity. One Belt One Road from Wikimedia Commons Belt and Road’s Uncertain Future While the Belt and Road Initiative flourished in reduced US presence during the isolationism and nationalism of the Trump years, President Xi’s outlook for centering global trade around China will meet a more robust challenge from the Biden administration. President Biden, unlike his predecessor, stands in favor of an expanded US presence in global affairs and trade. He has expressed interest in renegotiating and re-entering the Trans-Pacific Partnership with dozens of other Pacific Rim nations to provide a more equitable alternative to Belt and Road that distributes money more evenly among participant countries. A new Trans-Pacific Partnership that includes the United States would vastly increase enforcement of progressive rules on free and open Internet access, consumer protection, and the environment throughout the Asia Pacific. Combined with a renewed American commitment to protect the self-determination of smaller countries, a new TPP would directly counter China’s proliferation of rules that favor lax regulations, territorial incursions, and greater state control over information access. However, this kind of expansive partnership would have to be negotiated, signed, and ratified by roughly a dozen different states. It would have to pass muster in the United States Congress to be officially entered as a treaty, where left and right-wing populists wary of any multinational trade deals will be quick to assail the agreement, as they did repeatedly in 2016. And even then, while the progressive rules of such an agreement would set the standards of engagement for all of its highly influential members, it would fall far short of becoming customary international law. This is due to the smaller size of the trade deal, whereas China’s massive Belt and Road network spans nearly 140 countries (although it should be noted that the extent of each member’s bilateral engagement with China varies greatly). President Biden has also moved to revitalize trans-Atlantic ties at the recent Munich Security Conference and has successfully convinced many European countries to block Chinese-made 5G infrastructure, citing the technology as vulnerable to hacking and surveillance by Beijing. The recent selection of Samantha Power, former US Ambassador to the UN, as USAID Director signifies the new administration’s commitment to providing alternatives to Belt and Road that provide stronger protections for labor, the environment, and wildlife. China’s Belt and Road Initiative has forever altered the nature of multilateral trade in Asia. However, due to opposition from countries over territory grabs, lax rules on environmental and labor rights, and the one-sided nature of trading relationships, Beijing may need to make some systemic changes if Belt and Road is to continue its success. Author Hiep Nguyen is a first year at Berkeley Law who is interested in regulatory and comparative law. Hiep received his undergraduate degree from Cal (Go Bears!). Before law school, Hiep worked for a public health agency and a political campaign.

Hiroshima Remembers by Zach Stern Article by Ishvaku Vashishtha, Syria Strike On the morning of Friday, February 26, the United States carried out airstrikes in Syria. While the Pentagon reported that the strikes killed one fighter and wounded two others in an Iranian-backed militia, the Syrian Observatory for Human Rights, a monitoring group based in London, reported that the strike actually killed at least 22 fighters. President Biden authorized the airstrikes in response to a rocket attack on the airport in Erbil, in Northern Iraq, that occurred on February 15. Saraya Awliya al-Dam, the militant group which claimed responsibility for the attack, said that it was targeting the “American occupation in Iraq.” It is unclear whether the United States targeted Saraya Awliya al-Dam with the strike; rather, the Pentagon simply stated that “the strikes destroyed multiple facilities located at a border control point used by a number of Iranian backed militant groups, including Kait’ib Hezbollah and Kait’ib Sayyid al Shuhada.” While John F. Kirby, the Pentagon press secretary, further asserted that the retaliatory American airstrikes were meant to punish the perpetrators of the attack and not to escalate conflict with Iran, it is unclear whether or not Saraya Awliya al-Dam is backed by Iran or connected to the organizations that utilize the facilities the airstrikes targeted. The Pentagon justified the airstrikes by saying that they were launched “in response to recent attacks against American and coalition personnel in Iraq, and to ongoing threats to those personnel.” However, this justification is weak under international law. While the Biden Administration asserted that the strikes were pursuant to the inherent right of self-defense as reflected in Article 51 of the United Nations Charter, it is unlawful to use armed force, as the United States did, on the territory of another state (Syria) in the absence of an ongoing or imminent armed attack by a non-state actor. Iran Nuclear Deal While the Pentagon suggested that its aim was not to escalate hostilities with Iran, the airstrikes might have contributed to rising tensions between Iran and the United States. Earlier in February, the Biden administration took a significant step forward in beginning informal negotiations with Tehran, marking America’s first diplomatic outreach to the country in more than four years and a stark shift from the Trump administration’s failed Iran policy. However, Iran’s leadership affirmatively rejected the invitation last weekend following the airstrikes. This potentially jeopardizes one of Biden’s foreign policy priorities: returning to the Iran nuclear deal, also known as the Joint Comprehensive Plan of Action (JCPOA). As Vali Nasr notes, the Trump Administration’s approach to US-Iran relations applied maximum pressure and garnered minimal benefit, serving as an overall foreign policy failure. Trump’s disruptive strategy was an effort to catalyze regime change: his tactics alienated everyday Iranians and denied Iranians access to medicine and pharmaceutical supplies amidst a global pandemic. In fact, one of the Trump administration’s final acts was sanctioning an Iranian pharmaceutical company that is developing a COVID-19 vaccine, despite the tremendously unequal distribution of the vaccine. Unfortunately for the Biden Administration, reversal of the damage may prove to be a difficult task, and the recently escalated tension is unlikely to help actuate a détente. It is critical to understand that the Obama Administration did not intend for the JCPOA to be an endpoint for negotiations between Iran and the United States. Rather, the agreement was meant to be a starting point that would help address a specific concern: Iran’s uranium enrichment program. Though it was successful in curbing that program, Trump’s decision to withdraw from the Iran nuclear deal and heighten sanctions on Iran aggravated the country’s leaders, which led them to expand their uranium enrichment activities. Time is of the essence, as Tehran has indicated a desire to return to the pre-Trump status quo in which Washington would lift the sanctions that were imposed by the Trump administration. However, before doing so, Washington wants Tehran to showcase compliance with the tenets of the JCPOA by reversing its uranium enrichment. Failure to compromise from both sides could be catastrophic. New intelligence suggests that Iran may be only 2 years away from producing a nuclear weapon. Iran’s adopted “strategic patience” has a time limit. If Biden delays rejoining the Iran deal for too long, Iran might continue to accelerate its nuclear weapons program–a move that could put the United States and Iran on a path to war. Ultimately, if the goal is to maintain peace, failure is avoidable. However, if the Biden administration continues to cross international law lines, failure grows certain. The Underlying Goal: Abolition of Nuclear Weapons While Biden’s short term goal of returning to the JCPOA is necessary in building a more peaceful world, the agreement alone is insufficient. The overarching goal of the JCPOA was to prevent Iran from getting nuclear weapons, ostensibly to avert the looming, seemingly inevitable possibility of a nuclear war. But how long can the United States avoid the possibility that the weapons of mass destruction it created should not exist? Nuclear weapons pose an existential threat to humanity. According to the International Campaign to Abolish Nuclear Weapons, less than one percent of the nuclear weapons in the world could disrupt the climate and threaten as many as two billion people with starvation in a nuclear famine. The potential harm from the entirety of nuclear weapons that already exist is an unfathomable horror. Eventually, the United States must question why its concern about other countries gaining nuclear capabilities, and the fear attached to the potential for nuclear war and its aftermath, does not extend to its own possession of such weapons. Notions of deterrence and “mutually assured destruction” are deeply flawed. After great concerns associated with former President Trump’s authority over the nuclear launch codes, Democrats are asking Biden to surrender his unilateral power to order nuclear warfare. While there is truth to recognizing that the leader of Iran is ill-equipped to maintain control over nuclear weapons, it is apparent that the President of the United States similarly lacks the requisite expertise. The underlying truth is that no one is truly capable of possessing such capabilities. We ought to move towards the abolition of nuclear weapons. While the UN treaty on the Prohibition of Nuclear Weapons entered into force this past January, neither did any of the nine countries that are nuclear powers, nor any nation that is part of NATO, supported it. This overwhelming lack of support renders the ban largely symbolic. Protest as a Path Forward The transition to nuclear abolition can be guided by domestic movements. As Beatrice Fihn, Executive Director of the International Campaign to Abolish Nuclear Weapons (ICAN) notes, a mobilized civil society will be necessary in ensuring that the world can move towards universal nuclear disarmament. Protest can serve as a bridge between public perception and foreign policy. An intersectional approach connecting a war economy to persistent inequality and poverty may galvanize the American people to pressure political leaders to abolish nuclear weapons. Author Ishvaku Vashishtha (J.D. Candidate, Class of 2023) is an Travaux Contributor. His interests include human rights law, international political economy, democratization, and economic justice. Ishvaku holds a B.A. in Political Science from the University of California, Berkeley. Before law school, Ishvaku worked as a paralegal specialist for the United States Department of Justice, Antitrust Division and as an organizer for Elizabeth Warren's Presidential campaign. Currently, he is a student counselor with the Workers' Rights Clinic. He is conversationally fluent in Hindi.

LIBYA-ICC-/"by Reuters is licensed under CC BY 2.0. Article by Stuti Srivastava, The Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) recently decided not to proceed with an investigation into complaints of crimes allegedly committed against the Uyghur Muslims in China. This decision has left many disappointed as the ICC was established with the aim of ending impunity for the most serious crimes of concern to the international community as a whole. Two Uyghhur Muslim groups, the East Turkistan Government in Exile andd the East Turkistan National Awakening Movement, alleged the commission of acts of genocide and crimes against humanity to the ICC in July 2020. In November 2020, an international alliance of parliamentarians also wrote to the prosecutor to express their support for this complaint against the Chinese government. The basis of the claim for investigation and jurisdiction lies in the ICC’s Pre-Trial Chamber (“PTC”) 2018 ruling in the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (hereafter “Situation in Bangladesh/Myanmar”). There, the court upheld the possibility of investigating crimes that have occurred partially in the territory of a state that is not a party to the Rome Statute. The facts of the two situations are similar, involving crimes within the jurisdiction of the court and the deportation of the victims between two states, one a party state and the other a non-party state. This article seeks to analyze the Uyghur Muslim situation in light of ICC rulings in the Situation in Bangladesh/Myanmar. Jurisdiction in the Situation in Bangladesh/Myanmar In September, 2018, the PTC-I heard the Prosecution’s Request for Ruling on Jurisdiction based on the alleged deportation of Rohingya Muslims from Myanmar to Bangladesh. The facts, as recounted in the United Nations Report of the independent international fact-finding mission on Myanmar, were that hundreds of thousands of Rohingya Muslims fled from Myanmar to Bangladesh after “clearance operations.” These operations, conducted by the Tatmadaw and other security forces, involved the destruction and torching of homes, crops and entire villages, as well as killings and sexual violence. The primary question posed to the prosecutor was whether the ICC could exercise jurisdiction under Article 12(2)(a) of the Rome Statute, even though Myanmar was not a party to the statute. The prosecution based its case on the fact that Bangladesh, the state which Rohingyas fled to, was a party to the Rome Statute. The interpretation proposed by the prosecution was that for the court to establish its jurisdiction, at least one legal element of the alleged crime must occur in the territory of the party state. In keeping with Public International Law, the court undertook a contextual interpretation of Article 12(2)(a) to conclude that criminal jurisdiction may be exercised in such a manner which the prosecution proposed. The court relied on the Permanent Court of International Justice’s opinion in France v. Turkey (the Lotus case) and highlighted state practice via legislations and international instruments that allow them to exercise jurisdiction over crimes that have partly occurred on their territory. Additionally, the court emphasised its duty to hear the “most serious crimes of concern to the international community” and stated that a restrictive reading of the provision–not allowing the court to exercise jurisdiction over the crime in question–would defeat the very purpose of the ICC and the Rome Statute. Thus, the court accepted this interpretation on the basis of relevant rules of international law and the object and purpose of the Rome Statute. This jurisdictional ruling was subsequently given effect in 2019 when PTC-III authorised investigation into the Situation in Bangladesh/Myanmar. Deportation The exercise of jurisdiction in the Situation in Bangladesh/Myanmar was dependent, to a major extent, on the involvement of the crime of deportation. Therefore, the PTCs discussed this crime in detail. Under the Rome Statute, deportation and forcible transfer is a crime against humanity, criminalised by way of Article 7(1)(d) and defined under Article 7(2)(d). The elements of the crime are: deportation or forcible transfer of persons lawfully present in an area, without grounds permitted under international law, to another location, by expulsion or other coercive acts, as a part of a widespread or systematic attack against a civilian population. In the aforementioned 2018 ruling, PTC-I discussed that deportation and forcible transfer are two distinct crimes under Article 7(1)(d). The essential difference between the two was the destination of the forced displacement. The court concluded that in case of forcible transfer, the destination would be another location within the same state, whereas in cases of deportation, the destination is outside of the state. The transboundary nature of the crime of deportation allowed the court to exercise its jurisdiction in the Situation in Bangladesh/Myanmar. The alleged border crossings into a state that is a party to the Rome Statute ensured that at least a part of the alleged crime took place on the territory of a party state. Thus, in the 2019 ruling, the court authorised investigations into crimes committed at least in part on the territory of Bangladesh or any other party state. How is the case of Uyghur Muslims different? The OTP observed that the allegations of genocide, torture, perscution, and other crimes made against Chinese officials lie primarily outside the territorial jurisdiction of the court, as the actus reus and mens rea of these crimes have occurred in China, a non-party state. It is, however, pertinent to note that in the 2018 jurisdictional ruling, the PTC highlighted that persecution and other inhumane acts under Article 7(1)(h) and Article 7(1)(k) respectively, are crimes that may be transboundary in nature. Thus, the court may exercise jurisdiction over such crimes, even in cases involving a non-party state. The court has previously noted that the definition of the crime of persecution implies that it must be committed in connection with other crimes under the court’s jurisdiction. Therefore, if the persecution against the Uyghur Muslims includes the act of deportation from a party state, the court may exercise jurisdiction over this crime as well. Similarly, jurists note that the unlawful consequences of deportation may endure beyond the actual act of deportation. For example, the deportation of the Uyghurs is axiomatically linked to the other inhumane acts committed against them in the internment camps to which they are deported. This is in accordance with the PTC’s observation in the 2018 jurisdictional ruling and the 2019 authorization of investigation into deportation and persecution in the Situation in Bangladesh/Myanmar. Given this linkage, the OTP should have considered this crucial precedent before dismissing all of the crimes committed, except deportation, as falling outside the territorial jurisdiction of the court. With respect to the alleged acts of deportation, the OTP ruled that the act of transfer from Cambodia and Tajikistan to China does not seem to amount to a crime against humanity. It notes that not all acts of forcible removal amount to deportation, relying on the Naletilic case of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) which found that, when civilians are removed from their homes to be detained, it is not an unlawful transfer. Here, the court concluded that the intention was to detain, not to transfer. However, the fact of the matter is that Uyghur Muslims have been deported from Cambodia and Tajikistan to China, where they have been placed in internment camps. The contention that transfer for the purposes of detention does not amount to deportation seems absurd. Jurisprudence on this crime notes that the intent need not be to displace permanently or for a prolonged period of time. The fact remains that civilians have been unwillingly deported to another country, in violation of principles like non-refoulement, and placed in detention camps. This exercise was part of a mass detention of up to one million Uyghur Muslims. The multiplicity of the targeted persons and the huge geographical area of not just Xinjiang, but also Cambodia and Tajikistan, necessarily prove the widespread nature of the offense. The systematic nature of this exercise is evident from the Chinese administration’s leaked files which illustrate their strategy and methodology. The ICC must not rely on the Naletilic precedent, and should instead interpret the provision in a different manner in order to keep with the principle of good faith interpretation. In this case, the ICTY treated unlawful transfer as a grave breach of the 1949 Geneva Conventions and not as a crime against humanity, even though the ICTY Statute had specific provisions suggesting otherwise. The ICTY was handling a case of unlawful transfer, while the charge before the ICC is that of deportation. The definition in the Rome Statute of deportation and forcible transfer differs from the one in the ICTY Statute. Due to this, elements of each crime differ greatly from the other. In Naletilic, the court found no intent to transfer. However, under the Rome Statute, unlawful transfer has a lower standard for mens rea: the perpetrator may be held liable if he had knowledge of or intended the conduct to be a part of the widespread attack on a civilian population, provided that the other elements have been fulfilled. Thus, the ICC should abandon the Naletilic precedent and interpret the provision afresh. Conclusion The state of the Uyghur Muslim crisis demonstrates violations of human rights obligations and the commission of severe crimes. The grave situation has led international bodies to make several calls for probes. At a time when ICC officials are facing sanctions, judicial action on such crimes is urgent. The court ought to reiterate its commitment to ending impunity for perpetrators of serious crimes. The global community necessarily rests on the ICC to rise to the occasion by determining culpability and to punishing the offenders. Author Stuti Srivastava is a student at Rajiv Gandhi National University of Law, Punjab. She has a keen interest in human rights and criminal law. She can be reached at stutisrivastav1898@gmail.com

Peace Arch Hiroshima Peace Park by Leonemoff Article by Kyle Tang, The Treaty on the Prohibition of Nuclear Weapons (TPNW) went into effect this January, more than 75 years after the United States detonated the last nuclear weapon over Nagasaki. The bombings of Hiroshima and Nagasaki inflicted unparalleled devastation on the world. Although time has not washed away memories of the aftermath, doubts as to whether humanity has learned its lesson are well founded. Despite calls for nonproliferation by scientists, world leaders, and the International Court of Justice, there were an estimated 13,410 nuclear weapons in existence across the globe in early 2020, and global powers have only now entered a treaty to ban nuclear weapons into force. This is a step towards total nuclear disarmament, but opposition to the TPNW from all nine nuclear-armed nations jeopardizes the efficacy of this new international law. Treaty on the Prohibition of Nuclear Weapons: The Objectives and Limitations of Its Three Predecessors Three multilateral UN treaties form the foundation for the TPNW. In 1963, the Soviet Union, the United Kingdom, and the United States signed and ratified the Partial Test Ban Treaty (PTBT), which prohibited all non-underground test detonations of nuclear weapons. Whereas the PTBT was limited in scope, the Comprehensive Test-Ban Treaty (CTBT) sought to ban all nuclear tests. Despite its adoption by the UN General Assembly in 1996, the CTBT never went into effect because eight of the 44 requisite countries, including China, India, and the US, still have not ratified the treaty. While the PTBT and CTBT made major strides towards disarmament, the landmark 1968 Nuclear Non-Proliferation Treaty (NPT) etched the ultimate goal of “complete disarmament” into the body of international law. Since the NPT opened for signature in 1968, 191 states have joined the Treaty, including five nuclear-armed nations. More countries have ratified the NPT than any other disarmament agreement, making it the “cornerstone” of global nuclear non-proliferation. The NPT was built upon three implicit pillars: non-proliferation, disarmament, and peaceful use of nuclear energy. To advance these three goals, the NPT established a safeguards system, which entrusted the International Atomic Energy Agency (IAEA) with verifying compliance with the NPT. In 1997, the IAEA Board of Governors approved the Model Additional Protocol, which granted nuclear inspectors expanded rights to access countries’ information and locations, providing the IAEA with a fuller picture of countries’ nuclear programs, plans, and material holdings. In the 50 years since its inception, the NPT has generally promoted its three pillars successfully. The Model Additional Protocol increased the effectiveness of nuclear inspections, and the NPT created the political framework and moral pressure to facilitate reductions of existing nuclear arsenals by 90% from Cold War levels. However, the marginal effectiveness of the NPT in decreasing nuclear arsenals is uncertain. Some experts find that the US and other nuclear-armed nations have treated the “complete disarmament” aspect of the treaty as “decorative language with no force.” High nuclear weapon stockpile estimates and increasingly strained relations between the US, Russia, and China suggest that this is the case. After substantial reductions in nuclear weapon stockpiles during the twilight of the Cold War, the world’s aggregate nuclear weapon inventory has remained relatively stagnant throughout the 21st century. The picture grows bleaker with a look at individual countries. France and Israel have stable nuclear inventories, and China, Pakistan, India, and North Korea are expanding their arsenals. Further, deteriorating US-Russia and US-China relations have erected barriers to cooperative efforts to curb nuclear proliferation and ramp up disarmament. Modern Developments in the Prohibition of Nuclear Weapons Frustration over the reluctance of many nuclear-weapons states to reduce their stockpiles was a driving force behind the TPNW. At an NPT review conference in 2010, four of the five NPT nuclear-armed states—the US, UK, Russia, and France—rejected proposals to negotiate a nuclear weapons convention, a legal framework to ban nuclear weapons. On the other end of the spectrum, an overwhelming majority of non-nuclear-armed states showed their support for negotiating a convention. The clear division in opinion between the nuclear “haves” and “have-nots” gave way to calls to proceed with a nuclear weapons ban with or without the support of the nuclear-armed states. Advocates for such a ban argued that it would impose pressures of legal clarity, stigma, and international connections on those countries which opposed outlawing nuclear weapons. A ban would force countries to justify their decisions not to accept the illegality of nuclear weapons. Additionally, it would worsen already negative public opinions on the use of nuclear weapons. Lastly, it would limit investment in companies that produce nuclear weapons by muddying brand images. Over 120 UN member nations convened in 2017 to negotiate a legally binding treaty to abolish nuclear weapons. Ultimately, 122 countries voted in favor of the final draft, which became the TPNW. Article 1 of the TPNW lists an extensive series of prohibitions for parties to the treaty, including: developing, testing, producing, manufacturing, acquiring, possessing, stockpiling, transferring, using, and threatening to use nuclear weapons. Article 3 requires non-nuclear-weapon parties to maintain existing IAEA safeguards and accept safeguards based on the model established by the NPT. Finally, Article 4 outlines procedures for nuclear-armed states to become parties to the treaty, including a timeline for eliminating nuclear weapons, responsibilities, and a verification process. The Road Forward: Shifting Perspectives The TPNW clearly expresses an overwhelming desire among non-nuclear states for a world without nuclear arms. The ratification of the treaty made it a “key legal instrument” among the ranks of the Geneva Conventions. This bold law reflects shifting tides in the international landscape, as nations that are typically not considered major players in the nuclear debate demonstrate their power as a collective. If the TPNW manages to substantially pressure nuclear-armed nations to increase their rate of disarmament, then the treaty may inspire future movements from non-nuclear weapon states. However, the absence of support from the nine countries with nuclear weapons is a glaring concern. The US, the UK, and France did not participate in the negotiations leading up to the TPNW, and in fact, issued a joint statement expressing their intent to never “sign, ratify or ever become party to” the treaty. The three nations supported this decision with two main arguments: first, they stated that other nuclear-armed states and almost all states relying on nuclear deterrence did not participate in the negotiations; and second, the three nations asserted their belief that adopting the treaty was “incompatible with the policy of nuclear deterrence.” The 30-nation NATO alliance also failed to support the TPNW, citing two primary concerns. First, the North Atlantic Council (NAC), NATO’s principal decision-making body, argued that the treaty would be ineffective because it disregards the heightened global tensions in today’s international security environment. NAC reasoned that if NATO adopted the TPNW and disarmed, adversary states would not reciprocate through better behavior. Second, NAC claimed that the treaty would undermine the NPT and cooperation towards nuclear disarmament, arguing that some states may view the TPNW as an alternative framework to the NPT. This could be problematic because the TPNW lacks the NPT’s robust verification mechanisms and safeguards standards. Parties to the TPNW could thus cultivate a positive image by outwardly supporting disarmament, without subjecting themselves to the extensive safeguards standards created by the IAEA via the NPT. The argument shared by the US, UK, France, and the NAC, that international security conditions are incompatible with nuclear disarmament, should be viewed from a different perspective. Waiting for the perfect moment where security conditions are amenable to disarmament is kicking the can down an infinitely long road. Instead of security conditions being the roadblock to disarmament, disarmament should be the key to softening current international tensions. Under the status quo, it is naive to believe that adversary states will back down simply because other nuclear powers disarm. However, the TPNW has the potential to shift the status quo. The NATO Allies and nuclear-armed nations should concentrate their efforts on bolstering the admittedly raw framework of the TPNW with clear safeguards and verification methods, clarifying the treaty’s role and compatibility with preceding treaties like the NPT, and legitimizing the treaty as enforceable international law. We will see whether any of the world’s nuclear powers will rally their support behind the TPNW at the postponed the tenth NPT Review Conference this year, where countries will assess progress towards nuclear disarmament, evaluate the success of non-proliferation measures, and discuss the promotion and strengthening of the NPT’s safeguards. Given the close relationship between the TPNW and the NPT, the world will see a critical glimpse of the fate of the TPNW at this year’s Review Conference. Author Kyle Tang (J.D. Candidate, Class of 2020) is a Contributor to Travaux. His interests include antitrust law, international arbitration, and privacy law. Kyle holds a B.A. in Economics from the University of California, Berkeley. Before law school, Kyle served as a legislative assistant with the Berkeley City Council.

Photo by Ekrulila from Pexels Article by Ashna Devaprasad, With an increasing number of technical and scientific cases confronting international law, there has never been a more opportune moment for courts to clear the air on the present ambiguity surrounding the use of evidentiary standards. Over the years, international courts seem to have favored a malleable approach, wherein adjudicators play an inquisitorial role and exercise the freedom to determine evidentiary standards, on a case-by-case basis. Such practices have resulted in the enunciation of varying and flexible standards of proof, including but not limited to “beyond a reasonable doubt,” “clear and convincing,” “conclusive evidence,” “with a high degree of probability,” “balance of probabilities,” “sufficient certainty,” “reasonable basis to proceed,” “reasonable grounds,” and the “prima facie” standard. The question of vastly varying standards of proof has been a topic of debate among academics and scholars. Courts, however, have evaded this discussion and resorted to obfuscation. This article seeks to contextualize the arguments put forth in support of objective and flexible standards of proof, in order to understand how courts can apply consistent and fair standards of proof under international law, particularly in cases involving scientific and technical questions. Are Objective Standards of Proof Preferable? The term standard of proof refers to the quantum of evidence necessary to substantiate parties’ factual claims. Parties are expected to meet this threshold of proof to convince adjudicators about their claims’ rationality and genuineness. Proponents of objective standards of proof draw strength from the claim that such standards ensure transparency and an element of standardization in judicial decisions. They argue that such standards help parties strategize their cases and leave less room for highly subjective judicial instincts. For instance, when there is an armed attack against a state, the state cannot act in self-defense until it has exhausted all other peaceful options. This right to self-defense is only available to a state if it satisfies the two-pronged test of necessity and proportionality, as recognized under customary international law and reaffirmed by the International Court of Justice (ICJ) in its 1986 judgment in Nicaragua v. USA (Case Concerning Military and Paramilitary Activities in and against Nicaragua). In order to satisfy the conditions of necessity and proportionality, a state must justify that the use of force was necessary to achieve legitimate ends of self-defense and that the level of force used was proportionate to the armed attack or was the least drastic measure. Thus, necessity means an ‘absence of reasonable alternatives’ while proportionality involves assessing the means used by comparing the injury expected from the attack to the consequences produced by the act of self-defense as a whole. Today, the standard of proof required to establish the occurrence of an armed attack, thereby necessitating self-defense, remains unclear. In her separate opinion in Islamic Republic of Iran v. United States of America (Oil Platforms), Judge Rosalyn Higgins of the ICJ criticized the Court’s approach in United Kingdom of Great Britain and Northern Ireland v. Albania (Corfu Channel) and Nicaragua v. United States. There, the Court merely rejected evidence as “insufficient” and did not clearly articulate what standards of proof are required in each case to establish the existence of an armed attack. The DRC v. Uganda decision was another missed opportunity for the ICJ to clarify the level of credibility called for to justify claims relating to the occurrence of an armed attack. To further complicate the matter, the Court contradicted the standard that was developed in preceding jurisprudence. Likewise, the WTO Panel in its report in United States, Appellant v. India, Malaysia, etc., Appellees (United States - Import Prohibition of Certain Shrimp and Shrimp Products) informed the parties that they may have reached conclusions regarding a particular claim based on the “sufficiency” of evidence, without clarifying the level of proof necessary. The inconsistent application of standards of proof in a similar factual matrix can discourage states from approaching international courts. In recent instances, states have taken the liberty to formulate their own standards of proof. For example, the Attorney Generals of the United States, United Kingdom, and Australia made statements concluding that there must be a “reasonable and objective basis” for determining whether or not an armed attack is imminent. Similarly, by coining innovative phraseology such as “non-military pre-emptive action” as India did in the Balakot airstrikes, states are twisting the ambiguity in their favor. The result is a hybridized and highly contested manifestations of preventive and anticipatory self-defense, partially attributable to the unclear evidentiary standards on the subject. In Defense of Flexible Standards of Proof Those who defend the application of flexible standards of proof espouse the idea of giving courts the freedom to prudently balance evidentiary standards while appraising facts on a case-specific basis. However, while doing so, courts must tread with caution. For example, while placing reliance on the reports of the United Nations the Independent International Fact-Finding Mission on Myanmar (IIFFMM) in the The Gambia v. Myanmar (Rohingya Genocide case), judges must account for the less formal, idiosyncratic standards of proof that may be used by fact-finding missions while collecting and evaluating information that may later be produced as factual evidence in court. There are also concerns about a lack of transparency, erroneous information and inadequate scrutiny of evidence while relying on such organizations. Imposing excessively high and precise standards of proof on parties may also have negative consequences such as not having access to quality evidence, particularly in cases involving charges of exceptional gravity. The use of such standards may lead to parties being unable to meet the evidentiary demands of courts, thereby running the risk of exonerating potential human rights violators. As noted by Judge Cançado Trindade of the ICJ, demanding entirely conclusive standards of proof in cases of genocide that necessitate proving specific intent (dolus specialis) can also be counterproductive to implementing the Genocide Convention. Rather, allowing adjudicators to use discretion while appreciating evidence enables them to maintain fairness between parties while analyzing their burden of proof. Finding Middle Ground The exercise of determining standards of proof is critical to arriving at fair conclusions, but invariably entails an element of uncertainty. To appreciate some degree of uncertainty, parties must first acknowledge the differing evidentiary frameworks within which domestic and international adjudicatory forums operate. While domestic judicial pronouncements are generally replete with uniform procedures and standards, international adjudicators deal with parties from divergent cultural and legal backgrounds, which makes defining, interpreting and applying standards of proof all the more cumbersome. Unlike domestic courts that are equipped with the support of law enforcement agencies, international courts face jurisdictional limitations vis-à-vis conducting independent evidence collection exercises and coordinating with domestic authorities. Moving forward, disputes that come before international courts are likely to involve scientific and data-driven questions of evidence. In cases that call for implementing a treaty or convention, the standard of proof must align with a teleological interpretation of its provisions. For instance, in the case of Australia v. Japan (Whaling in the Antarctic), the ICJ extensively examined advanced scientific data on whaling practices, both from the International Whaling Commission (IWC) and scientific experts. The court’s decision to end Japan’s whaling program was based on a standard of “objective reasonableness” where parties are held up to the “reasonable” standard of proof but with the rigor of the “necessity” test. This decision was also in line with the objectives of the International Convention for the Regulation of Whaling (ICRW), which aims to sustainably protect threatened species of whales from overhunting by devising a system of whale stocks, non-lethal hunting practices, and strict moratoria. Upon concluding that the use of lethal methods to kill whales was not strictly necessary for Japan’s research, the court devised a standard of proof that balanced the parties’ relative rights and required Japan to explain the reasonableness of different aspects of its Whaling program. Professor Charles Weiss of Georgetown University formulated a rule to pragmatically identify standards of proof in cases that involve the analyses of scientific evidence. Weiss’s method uses a scale of legal standards that are hierarchically arranged, with each standard of proof made equivalent to assigned degrees of scientific certainty required in different legal situations. The rule aims to help judges match standards of proof with the level of scientific certainty necessary to analyze the repercussions of a given action. Although this method is not fool-proof, it can aid judicial decision-makers in pinpointing a more precise standard and accounting for its application to the unique facts in each case. A redesigned formulation of this rule may be used in other cases of complex evidence as well. Concluding Thoughts International courts often rely on evidence collected by commissions of inquiry consisting of members from various political, legal, and socio-cultural backgrounds. These commissions carry out investigations in diverse regional environments and analyze evidentiary questions from unique socio-political perspectives. They define and apply standards of proof in a less systematized manner than courts. Although these commissions are required to clearly explain the standards of proof adopted, there have been instances where no standards are articulated or where the application of standards is incongruous with that in international courts. Hence, courts must ensure a higher degree of interoperability between the theoretical and practical variations in the evidentiary practices employed by judicial and non-judicial bodies. The appointment of groups of experts to guide courts on how to weigh evidence, interpret fact-finding reports, and coordinate between the parties to establish improved negotiations and fact narratives concerning methods of proof can also help streamline the process. Rather than getting bogged down by arguments surrounding the use of hypertechnical language to distinguish between standards of proof, courts must use standards that broadly satisfy the umbrella test of objective reasonableness to ensure fairness between the parties. Before a court accepts or rejects an evidentiary claim, it must first provide cogent factual and legal justifications for doing so. Such an exercise involves actively engaging in counter-arguments with parties on the implications of using such a standard in a given case. Otherwise, much like courts, states will shy away from responsibility and steer clear of seeking international adjudication. Author Ashna Devaprasad is a penultimate year student at the National University of Advanced Legal Studies, Kochi, India with a keen interest in criminal law and international environmental law.

Group shot of the artefacts by Ian Richardson Article by Shashwat Singh, Although the health, economic, and social ramifications of COVID-19 have been the subject of extensive discourse, the grave impact of this unprecedented crisis on the safety of our shared tangible cultural heritage has received little attention. Experts have pointedly warned that opportunities for cultural racketeering have increased since the onset of the pandemic. Artifact looters have pillaged loosely-guarded archaeological sites and art thieves have stolen paintings from understaffed museums. The global lockdown has also led to an alarming increase in the incidence of antiquities trafficking on the internet. These complex challenges exacerbated by COVID-19 call for a critical assessment of the international legal instruments that are aimed at protecting cultural objects. In this regard, there are two relevant treaties: the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (“UNESCO Convention”) and the Convention on Stolen or Illegally Exported Cultural Objects 1995 (“UNIDROIT Convention”). While the former lays down the basic framework for the transnational protection of cultural property, the latter builds on it by formulating minimal legal rules for restitution and consolidating the rules of international procedure and private international law. Given the more comprehensive purview of the UNIDROIT Convention, this article scrutinizes the strengths and weaknesses of some of its provisions and analyzes their implications against the backdrop of COVID-19. UNIDROIT Convention Safeguards vis-à-vis COVID-19 At the outset, the UNIDROIT Convention delineates the scope of cultural objects by adopting a dual approach: Article 2 provides a general, inclusive definition of cultural objects and the Annex lays down an exhaustive list enumerating categories of cultural objects. The two clauses operate in conjunction with one another to eliminate their individual drawbacks and plug any residual gaps. Further, the UNIDROIT Convention widens the ambit of protection by allowing claims that involve non-inventoried cultural objects belonging to private parties. It also facilitates the institution of claims directly in the domestic courts of the contracting states, thereby eliminating the dependency on administrative and diplomatic procedures that require governmental intervention. The combined effect of these provisions is that owners of cultural objects are equipped with a broad, practical, and effective legal remedy in the event of theft. Access to such a legal recourse has current significance because the pandemic has triggered an upsurge in the theft of cultural objects. The regulatory framework of the UNIDROIT Convention grants extensive protection to stolen cultural objects, finding its basis on the legal and philosophical premise that theft is a universally reprehensible act which must be averted under all circumstances. Moreover, all contracting states agree that, in order to curb illicit trade in cultural property, the obligation to return a stolen cultural object must be absolute. Accordingly, Article 3(1) provides that in claims for restitution of a stolen cultural object, there is an unconditional obligation on the possessor to return the object to its dispossessed owner. This principle of automatic restitution enhances the legal protection that is traditionally granted to dispossessed owners and serves as a potential deterrent in the face of escalating cultural property theft during the COVID-19 crisis. The UNIDROIT Convention also fosters self-regulation and vigilance in the acquisition of cultural objects. For instance, Article 4(1) provides that when the possessor of a stolen cultural object is required to return the object to the rightful owner, such possessor is entitled to compensation from the owner, provided it can successfully prove adherence to the principles of “good faith” and “due diligence.” Considering that COVID-19 has given fresh impetus to clandestine dealings involving cultural objects, this provision acts as a strong monetary incentive for potential purchasers of cultural objects to conduct thorough provenance research and actively police their acquisitions. With respect to the time limitation for bringing restitution claims concerning stolen cultural objects, Article 3(3) provides a dual limitation period: (i) an absolute limitation period of fifty years from the occurrence of the theft and (ii) a relative limitation period of three years from when the claimant becomes privy to both the location of the object and the identity of its possessor. The relative limitation period is based on the equitable “discovery rule,” which states that the statute of limitations begins only when the dispossessed owner discovers both the location of the stolen cultural object and the identity of its possessor. Since COVID-19 has precipitated investigative and procedural delays, the application of this provision ameliorates the situation by ensuring that the statute of limitations will start only when the owner has gathered sufficient information to bring an effective legal action. Lastly, Article 8(2) establishes arbitration as a viable alternative for the settlement of restitution claims by allowing parties to mutually submit their dispute to arbitration. The introduction of arbitration as a means of dispute resolution in the realm of international cultural property law provides significant benefits such as facilitating the appointment of subject-matter experts as arbitrators, ensuring confidentiality, enabling forum neutrality, increasing speed and efficiency of proceedings, and simplifying enforcement due to mutual consent of parties. In light of COVID-19, the practical advantages of arbitration have become all the more palpable. The inherent procedural flexibility of arbitration allows a comfortable transition from physical hearings to virtual proceedings. The shift to digital arbitration involves additional benefits such as swift proceedings, cost savings, and lower ecological footprint due to paperless operations and elimination of travel to arbitral venues. One Step Forward, Two Steps Back? Any discussion regarding the usefulness of the UNIDROIT Convention would be incomplete without addressing its weaknesses. Oft-cited amongst these is its failure to gain wide acceptance in the international community. To date, it has 48 contracting parties, which is paltry when compared to the 140 contracting parties of the UNESCO Convention. The number of signatories to a convention is not an accurate indicator of its success since legal instruments that make substantive changes to existing rules tend to take a long time to be universally adopted. However, the question arises as to how effectively the UNIDROIT Convention can confront the alarming issue of international cultural property theft when only a small number of countries are party to the instrument. From a more technical perspective, there is further room for improvement. For instance, the lack of definitions for various terms such as “stolen,” “fair and reasonable compensation,” “claimant,” and “possessor” invites rightful criticism that the language of the provisions is too vague to facilitate uniform interpretation. Another concern is that the non-retroactivity clause under Article 10 bars recovery claims for cultural objects that are stolen before the UNIDROIT Convention is adopted in both the state where the claim has originated and the state where the claim is brought. The underlying rationale for the inclusion of this clause was that, by protecting nations from being penalized for their past objectionable acts, the UNIDROIT Convention would attract widespread ratification. However, the fundamental problem with this reasoning is that it inadvertently favors the interests of “market countries” (which are the eventual destinations of stolen cultural property) over the interests of “source countries” (which are the original owners of stolen cultural property). This is because non-retroactive application effectively approves past illegal conduct of market countries and disregards the long-standing demand of source countries to allow recovery of cultural objects that have been wrongfully taken from them over several decades. Arguably, the lack of ratification by major source countries such as Egypt, India, Iraq, Japan, Mexico, and Turkey is a testament to the problematic nature of the non-retroactivity clause. It is evident that the aforementioned deficiencies considerably restrict the scope of actual enforcement. Promisingly, the resolution of such technical shortcomings will likely prompt more nations to become signatories, which in turn will enhance the overall efficacy of the UNIDROIT Convention in tackling the challenge of transnational theft of cultural objects. Conclusion With the tumultuous year of 2020 marking the 25th anniversary of the UNIDROIT Convention, it is pivotal to not only take stock of the accomplishments made thus far but also examine the thorny issues that impede future progress. The foregoing analysis demonstrates that while the UNIDROIT Convention can neutralize some of the adverse consequences associated with international cultural property theft in the aftermath of COVID-19, its substantial flaws stand in the way of unlocking its broad-ranging potential. Given the dire impact of the pandemic on the security of cultural property, it is undeniable that the relevance of the UNIDROIT Convention has never been more resounding than it is today, and will continue to grow by leaps and bounds in the foreseeable future. However, it remains to be seen whether the COVID-19 crisis will induce any concrete attempt to rework the nebulous and problematic aspects of the UNIDROIT Convention. Author Shashwat Singh is a recent B.A. LL.B. graduate from Hidayatullah National Law University, Raipur (India). He is interested in Art and Cultural Heritage Law and aspires to pursue further studies in this field. His previous research works have been published in reputed international journals and can be accessed here and here.

Photo by Kelly Lacy from Pexels Article by Vishwajeet Deshmukh, Under international law, interference in the internal affairs of another state is prohibited by the United Charter Article 2(7). However, what constitutes ‘interference’ is the subject of much debate. As more disruptive technologies enable interference through social media platforms in the form of political comments or tweets, for example, the concept of interference warrants new scrutiny. India’s response to Canadian solidarity with farmers illustrates what different parties might identify as interference. The Recent Farm Laws In late September, 2020, the Indian government passed three laws that have had a serious impact on farmers. The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act provides for mechanisms that allow farmers to sell their farm produce outside the Agriculture Produce Market Committees (APMCs). Any license-holding trader can buy the produce from the farmers at mutually agreed prices in an exchange free of state taxes. The Agreement of Price Assurance and Farm Services Act allows farmers to do contract farming and market their produce freely. The Essential Commodities Act now frees items such as foodgrains, pulses, edible oils and onion for trade except in extraordinary circumstances. Farmers are apprehensive of allowing outside-APMC trade of farm, anticipating that the change would drive government agencies to buy less in approved agricultural markets, or mandis. Under these laws, the government enforced minimum price known as the Minimum Support Price system may become irrelevant. As a result, farmers are protesting the new laws that destabilize their income security. The Tension Between International Support and State Interests On November 27, 2020, the Canadian Prime Minister Justin Trudeau expressed his support for farmers’ protest in India against the three farm laws, and emphasized his concern about police brutality against the peaceful protestors. In response, the Indian Ministry of External Affairs issued a summons to the Canadian High Commissioner, stating that the comments by the Canadian Prime Minister, cabinet Ministers, and members of Parliament on issues relating to Indian farmers unacceptably interfere with India’s internal affairs. Notably, other famous figures, including the Swedish activist Greta Thunberg and American singer Rihanna, have joined Prime Minister Trudeau in publicly commenting on the farmers’ protest on their respective social media platforms. The Indian Ministry of External Affairs’ response calling the comments “interference” begs the question: do comments or criticism in support of protests against state-issued legislation constitute interference in internal affairs–and are the societal role and notoriety of that supporter relevant? Under traditional international law, states can not intervene either directly or indirectly in the internal affairs of another state. This rule, known as the non-intervention principle, is laid out in Article 2(7) of the UN Charter, which provides: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.” In order for interference to rise to the level of intervention, it “must be forcible or dictatorial, or otherwise coercive; in effect depriving the state intervened against control over the matter in question.” In modern democracies, the importance of identifying and curbing interference remains; however, the gray areas in what constitutes “interference” have grown in scope and opacity. For example, is interference possible only when faced with the threat of military force, or would economic sanctions, cyber warfare, or other kinds of non-military intervention suffice? The view of the international community on “non-intervention” is based on the principle of territorial sovereignty. Intervention is typically defined to be forcible or dictatorial, or otherwise coercive, effectively depriving the state intervened against of control over the matter in question. Interventions may occur through military, subversive, economic, or even diplomatic means. Here, the Indian government is accusing Prime Minister Trudeau of using subversive tactics in an attempted intervention. However, such comments do not establish “subversive intervention.” In a 1960 article published in the American Journal of International Law, Professor Philip Quincy Wright presented a comprehensive explanation of “subversive intervention” and its methods. These include the spread of propaganda and other activities by one state with the intention of influencing the situation in another state. Typical examples are conducted through radio or television shows. Such intervention is prohibited if it aims to foment revolution or civil strife in another state, or are designed to assist illegal and violent activities. In general, it is difficult to track these actions back to a state because they are usually carried out by private individuals. In the case of the farmers’ protest, the Canadian authorities’ statements neither incited or promoted any violence that threatened the sovereignty of the Indian government, nor were they intended to have such effects. Rather, the comments expressed support for Indian farmers’ right to peaceful protest and did not directly comment on the farm laws passed by the Indian government. Prime Minister Trudeau asserted that Canada stood for peaceful protests and conveyed to the Indian government the need to engage in a dialogue. A series of tweets by Canadian authorities in solidarity with a pre-existing non-violent protest do not meet the definition of “subversive intervention.” Indian authorities may argue that the comments constituted a “subversive intervention” because they were intended to spread propaganda and lead to civil unrest in the state. However, as noted in the Max Planck Encyclopedia of International Law, criticism of the internal affairs of another state is outside of the purview of the principle of non-intervention. J.S. Mill’s essay, “A Few Words on Non-Intervention,” highlights a historical example, where the criticism of French and English imperialism in Algeria and India, respectively, did not come under the principle of non-intervention. Trudeau’s statements fall squarely within the exception. Furthermore, several international instruments identify the right to protest as a “human right,” including the International Covenant on Civil and Political Rights (ICCPR) 1976, which guarantees the right to peaceful assembly. In a democratic society, the right to protest serves as a check for the state. The Canadian authorities’ comments pertained to a human rights issue, a matter which states are entitled to criticize regardless of jurisdiction. By India’s logic in the case of the farmers’ protest, India has, itself, violated the rule of non-interference through comments on multiple occasions. In January 2021, Indian Prime Minister Narendra Modi called the protests in the U.S. Capitol “unlawful.” Regardless of the validity of his claims, they dealt with a political situation in another state, not unlike Prime Minister Trudeau’s comments. Moreover, major leaders from many other countries, including the United Kingdom, Australia, and Canada, also expressed their dissenting views on the Capitol protest, to which no state responded with claims of unlawful interference. On a separate occasion, in February 2018, President Abdulla Yameen of Maldives extended the emergency in the state by a period of 30 days leading to protests in the Maldives. The Indian Ministry of External Affairs issued a public statement criticizing the move and calling the events a “matter of concern.” Conclusion Canada’s expressed support for the right to peaceful protest as a human right does not qualify as illegal interference with the sovereignty of the Indian government. The comments do not incite violence or seek to overthrow the state; in fact, they advocate against violent suppression and for farmers’ human right to protest, a right enshrined in several international instruments. Such support does not meet the bar for intervention established under the principle of non-intervention. Author Vishwajeet Deshmukh is a law student at Government Law College, Mumbai, India. His research interests include legal history, constitutional law, and censorship.

Farms and Farmers by WBK Photography - © Kannan Muthuraman - 2015 Article by Pream Akkas, The Indian government’s response to the recent farmer’s protest illustrates how the Modi administration continues to enforce policies that disadvantage marginalized voices despite international pushback and criticism, indicating that further international action is necessary to prevent this trend. The Indian government should not be able to enforce policies that further disadvantage its marginalized populations and silence dissenting voices because it is committing grave human rights abuses against its own population. As international leaders fail to effectively intervene, the Hindu nationalist regime will persist in committing human rights abuses to stifle dissent and enforcing policies that further disadvantage its marginalized populations. International leaders have a responsibility to hold India accountable for compliance with international law treaties on human rights and humanitarian law by threatening to sever relations or enforce specific economic sanctions, such as an arms embargo, that would not further harm India’s disadvantaged communities. Since November 26, 2020, farmers, workers, their families (including women and the elderly), and allies have been protesting on the outskirts of the capital, New Delhi, for the repeal of three agricultural bills passed in September 2020. While the Indian government states that the rules are aimed at deregulating and modernizing the agricultural markets, protestors are worried that the laws dismantle the current market system, which creates a guaranteed minimum price and allows even small farmers to sell their produce at a fair price. On January 12, India’s Supreme Court put the new farm laws on hold in an attempt to end the protests, but demonstrators persisted. On January 26, India’s Republic Day, violence erupted when some protestors broke through police barricades, entered the city, stormed the 17th Century Red Fort, and hoisted a Nishan Sahib, the flag of Sikhism on a minaret of the Red Fort (the majority of farmers in India are Sikh and Sikh farmers from Punjab dominate the protests). The protestors clashed with police, overshadowing the Delhi Republic Day parade, the main attraction of India’s Republic Day celebrations. Security forces fired tear gas and water cannons on some of the tens of thousands of tractors. The government has also arrested journalists and activists and removed access to water, sanitation facilities, and internet at protest sites. International actors have expressed solidarity with protestors and condemned the Indian government for stifling dissent; but until international actors hold India accountable by imposing material consequences, the administration will continue to enforce policies that have grave consequences for its marginalized communities and stifle dissent through human rights abuses. A History of Silencing Dissent and Arrests Stifling of dissenting voices by the use of force, arrests, internet shutdowns, and human rights violations are neither unprecedented nor surprising under the administration of Prime Minister Narenda Modi and the right-wing Hindu nationalist Bharatiya Janata Party. During the 2019 government’s decision to revoke special status for Indian-controlled Kashmir, thousands were arrested and even after the protests, many of the political leaders in the region remained under house arrest for months. The internet was entirely shut off for seven months and the 4G mobile internet ban was not lifted until February 6 this year. The Indian government attempted to delegitimize the Kashmiri struggle for self-determination and resistance by associating their struggle with “Islamic terrorism.” Similarly, during the late 2019 and early 2020 protests across India against the passage of the Citizenship Amendment Bill (CAB), which establishes a religious test for immigrants to the disadvantage of Muslims, the police arrested thousands and blocked internet access in many Muslim-dominated regions. Like the Kashmir and CAB protests, the recent demonstrations have received international support with rallies in the United States and Canada. Nonetheless, the Indian government has done little to respond to these pleas and continues to exert similar violations against protestors to no end. During the ongoing farmers’ protests, the Indian government and media suggested that protests against the agricultural bills are “Khalistani,'' or members of a Sikh seperatist movement that Indian media often labels as an anti-national terrorist group. A media report quoting Delhi Police sources claimed that Pakistan-based Inter-Services Intelligence and “‘rogue elements linked to Khalistani outfits’ are likely to hijack and disrupt the tractor rally,” in reference to the rally on Republic Day. Journalist Mandeep Punia is among hundreds of activists and journalists who have been arrested in connection to the protests. Punia was arrested just hours after he posted a 15-minute long live video on Facebook from a farmers’ protest venue, describing how a mob of fifty to sixty individuals carrying national flags pelted stones and a petrol bomb at protestors in the presence of thousands of policemen. A video of the police arresting Punia also circulated on social media and showed the police violently manhandling Punia. India’s International Law Violations Recently, the government also blocked internet access in places where protestors gathered. Article 19 (2) of the International Convention on Civil and Political Rights, to which India is a party, hold that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Article 19 of the Universal Declaration of Human Rights (UDHR) similarly states that the freedom of expression inclusions “receive and impart information and ideas through any media and regardless of frontiers. Section 32 of the UDHR further adds “[t]he promotion, protection and enjoyment of human rights on the Internet.” However, India was one of multiple countries that opposed this amendment and continues to impose Internet shutdowns in response to local protests against international law. In addition to stifling dissent by arresting protestors and journalists and banning internet access in protest sites, the government also shut off access to water and sanitation, in violation of international laws. The 2010 and 2015 UN General Assembly Resolutions, of which India voted in favor, “explicitly recognized the human right to water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realisation of all human rights.” Protestors have been forced to use the toilet publicly, which disproportionately impacts women and the government shutting off access to toilets is accordingly in violation with the Convention on Elimination of All Forms of Discrimination Against Women, which India signed and ratified. The treaty places a duty on States to “ensure to women… the right to enjoy adequate living conditions, particularly in relation to… sanitation.” Despite India’s obvious violation of international treaties, different states and even international bodies like the UN have done little more than give ambivalent criticisms. International Response On February 1, the agriculture minister Narenda Singh Tomar defended the laws in parliament, indicating that the government is still unwilling to repeal the legislation or negotiate with protestors. Just as the special status of Kashmir is still revoked and the CAB has not been repealed, the agricultural bills likely will not be repealed and will have dire consequences for Indian farmers. The Modi administration is also likely to continue enforcing discriminatory policies that further disadvantage its marginalized groups unless there is effective intervention by threatening the severance of diplomatic relations or targeted economic sanctions that would not further harm the very farmers the sanctions would aim to protect. International intervention is necessary to convey that the violation of human rights is not an “internal affair” and the administration will be held accountable for its abuses. Despite facing international criticism for its suppression and violent treatment of protesters, the Indian government has not experienced any consequences. On November 30, Canadian Prime Minister Justin Trudeau participated in a Zoom meeting organized to celebrate the birth anniversary of the founder of Sikhism Guru Nanak and stated that “Canada will always be there to defend the right of peaceful protest.” India’s foreign ministry spokesperson Anurag Srivastava responded, "such comments are unwarranted, especially when pertaining to the internal affairs of a democratic country.” Prime Minister Trudeau has neither responded nor taken any action to indicate that his words were more than mere rhetoric to appease Canada’s large Sikh community. As an influential international leader, Trudeau is not solely responsible for forcing India to comply but, as he conveyed, he can defend the right of peaceful protest in India by compelling the Indian government to comply with international laws concerning the freedom of expression. ‘War-Like’ Restraint On and Offline On February 4, the U.S. embassy in New Delhi responded to the Internet shutdown by stating, “We recognize that unhindered access to information, including the internet, is fundamental to the freedom of expression and a hallmark of a thriving democracy.” The embassy also urged Modi to resume talks with farmers but also offered support to government measures to “improve the efficiency of India’s markets and attract greater private sector investment.” The ambivalent response from the Biden Administration fails to hold the Modi regime accountable for its actions, which we see time and time again. Similarly, the Office of the United Nations High Commissioner for Human Rights (OHCHR) called on both protestors and Indian authorities to “exercise maximum restraint” amidst ongoing protests by farmers, tweeting, “The rights to peaceful assembly and expression should be protected both offline and online. It’s crucial to find equitable solutions with due respect to #HumanRights for all.” The UNHCR’s comments suggest that the current struggle in India is a two-sided conflict between equal parties that fails to acknowledge the significant power imbalance that inherently exists between the government and its citizens, particularly poor disadvantaged citizens whom the government is punishing simply for dissenting. The barricades blocking protesters, made of iron nails, barbed wire, boulders, and makeshift walls which farmers and opposition leaders described as “war-like fortification” vividly illustrate the power imbalance the UNHCR highlighted. Political analyst Suhas Palshikar wrote that the barricades send a dual message: “One is a message of distrust and disregard, the other is the message that power and the people are clearly separated.” The measures taken to silence the protesters and pressure them to return home illustrate this very disregard for the people and that despite being “the world’s largest democracy,” the power does not remain with the people. As minority populations in India are increasingly silenced by internet shutdowns and human rights abuses, the right-wing government becomes increasingly fascist. Global powers are particularly equipped to strongly and consistently condemn the Indian government and incentivize compliance with international treaties by threatening to sever treaties or enforcing an arms embargo. It is the responsibility of international leaders like President Joe Biden and Prime Minister Trudeau to mitigate this transition by compelling the Indian government to comply with international law. Author S. Pream Akkas (J.D. Candidate, Class of 2023) is interested in international humanitarian law and immigration and refugee law. Pream holds a B.A. in Middle Eastern, South Asian, and African Studies from Columbia University. She is fluent in Bengali and conversational in Spanish and Arabic.

Photo by Stephen Kovats and Hakim George Article by Arpit Lahoti and Sherry Shukla, On February 7, Internet providers in Myanmar blocked Facebook in response to a government directive finding the block necessary to ensure stability in the state. The recent directive is merely the most recent development regarding the presence of Facebook in Myanmar, highlighting the extent to which Facebook has influence throughout the state, spreading information to the masses. However, the Myanmar genocide made the internet’s devastating potential apparent. The internet instigated the genocide to a great extent, where sites like facebook served as forums for systemic Anti-Rohingya propoganda and ultimately, as tools for instigating hatred against Ronhingya even off the internet. As society moves towards a more cyber-centric model, the shocking violence in Myanmar raises a number of concerns about the regulations that govern cyberspace. This article will analyze the law governing internet intermediaries in order to determine their liability for the actions of third parties. In particular, this article will consider Facebook’s role and potential liability in the Myanmar Genocide. The Basic Role of Internet Intermediaries In a report on The Economic and Social Role of Internet Intermediaries, the Organisation for Economic Co-operation and Development explained, “Internet intermediaries bring together or facilitate transactions between third parties on the Internet. They give access to, host, transmit and index content, products, and services originated by third parties on the internet or provide internet-based services to third parties.” Internet intermediaries include both Internet Service Providers (ISPs), which provide direct internet access for users, and hosts, which provide server space for users. Intermediaries can perform any one or combination of the following four functions: search, commerce, payment, and social networking. This blog will focus on Facebook’s role as a social networking intermediary. The Situation in Myanmar Rohingya Muslims are one of the many ethnic minorities in Myanmar: nearly one million Rohingya Muslims resided in Myanmar in 2017, with most of the population living in the Rakhine state. However, the government of Myanmar still does not recognize them as citizens and considers them illegal immigrants. On August 25, 2017 the Arakan Rohingya Solidarity Army (ARSA), a militant group which claims to fight on behalf of the oppressed Rohingya, attacked police posts. Their “defense” devolved into a massacre. Official figures report that 192 people were killed, 265 people were seriously injured, and about 8,614 houses were destroyed. However, the numbers are disputed, with various other resources estimating that as many as 6.700 homes were destroyed and noting that the Myanmar military raped Rohingya women amidst the attacks. The UN Fact-Finding Mission (UNFFM) was established to investigate the event in Myanmar and to consider whether crimes against humanity including genocide took place. In its final report, the UNFFM concluded that evidence indicated that such crimes did occur, warranting further investigation and prosecution of culpable officials. Facebook’s Role in the Crisis For much of Myanmar, Facebook is synonymous with the internet in general and is arguably the predominant, if not only, mode of internet access for much of the population. The UNFFM also confirmed that the majority of the Myanmar population was active on Facebook, further giving credence to the argument that the website was an important platform for anti-Rohingya messages and the spread of hatred. The UNFFM highlighted that Facebook was used as a tool to disseminate hateful messages about Rohingya Muslims, and that Facebook possibly further incited the genocide. Users often referred to Rohingya Muslims as the “Bengali Problem” on the social media platform, and specifically called for violence to “solve” this alleged problem. Facebook was used to spread hate speech, misinformation, and fake news to instigate hatred towards the Rohingya minority. In 2001, users spread warnings via Facebook messenger that allegedly “jihad attacks” would be carried out and that Buddhist Monks were to organize anti-Muslim protests. Various anti-Muslim rumours were spread on Facebook that incited violence and riots in the year 2012 and 2014. One prime example took place in 2014, a fake online story was circulated on facebook stating that a Muslim man had raped a Buddhist woman which lead to deadly clashes in the city of Mandalay. More recent examples were in 2017, when violent speech on Facebook triggered an army crackdown on Rohingya Muslims, and in 2018, when Facebook had to ban around 20 military officials for spreading disinformation including the commander in chief Senior General Min Aung Hlaing. Facebook removed the pages only after much time had elapsed. The platform, however, claimed to have faced administrability issues when interpreting posts, as they were written in Burmese and that facebook was following its community standards to curb such hate speech. Facebook added that it had subsequently devoted more resources to monitor the content in Myanmar. The Law Governing Internet Intermediaries Cyberspace refers to “the tools which constitute a unique medium located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet.” Facebook, as an internet intermediary, is undoubtedly part of cyberspace. The question of jurisdiction, however, becomes an important and puzzling factor in determining disputes about Facebook’s intermediary role. An internet intermediary cannot be reasonably expected to comply with the legal obligations of every country in which it is used. The Manila Principles on Intermediary Liability, developed by expert organizations including the Electronic Frontier Foundation, the Centre for Internet and Society in India, and Article 19, shield intermediaries from liability of content posted by third parties in order to protect the freedom of expression. It is among very few documents that has incorporated opinions from different corners of the world in a single uniform code. The International Criminal Court, earlier, The International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda relied on International Conventions like the European Convention on Human Rights, (ECHR), the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC) to determine issues of human rights like the Right to Freedom of Expression. The UNHRC’s General Comment No. 34, when working with Article 19 of the ICCPR relating to Freedom of opinion and expression noted that these freedoms have become an indispensable part of society. It lays down an obligation on the state to take all necessary steps to foster internet intermediaries' function of providing a global network of information and idea exchange. Moreover, in their Joint Declaration on Freedom of Expression and the Internet, the four special mandates on right of freedom of expression declared that internet intermediaries cannot be held liable for user-generated content. However, the Declaration carved out a limited exception to the statement against platform liability: namely, that the internet intermediary should not have made any modifications to the user-generated content, and a precondition for nonliability is the absence of court orders to remove such content. Rather than deriving jurisdiction from user location, laws governing cyberspace operate within the law of servers. The law of servers principle states that territorial jurisdiction in the case of cyber-crime proceedings exists where the server hosting the pages at issue is physically located. ). The High Court of Justice adopted the law of servers principle, (Chancery Division) holding that an internet intermediary should be held responsible in the country in which its servers are located rather than the place where the ‘material is read or used.’ The Canadian Supreme Court has applied the three-factor ‘real and substantial connection test’ for determining a jurisdiction cyber matters which considers (1) the location of the servers; (2) the geographic jurisdiction in which the person posting is situated, and; (3) targeted end users. Facebook’s servers are located in the US, which means, as per the law of servers, Facebook is bound to comply with only U.S. law. As per Section 230 of the US Communications Decency Act, internet intermediaries enjoy blanket immunity from any kind of responsibility arising from any provider or user-generated posts, but might otherwise be legally responsible for what others say and do. Though there are certain exceptions for certain criminal and intellectual property-based claims, the provision gives wide-ranging protection to intermediaries in furtherance of innovation and free speech online. Facebook's Liability It is clear that, from a law of servers perspective, Facebook cannot be held liable for user conduct and content. However, the interesting question is whether Facebook should, in a positive sense, be liable. The role of Facebook in the Rohingya genocide is that of a means to spread hatred among the masses. Though Facebook itself prohibits hate speech in its community standards, the platform has miserably failed to restrict anti-Rohingya propaganda before substantial harm was done. The crisis in Myanmar illustrates the massive damage an unregulated and unmonitored cyberspace can cause. The idea of conferring absolute immunity upon internet intermediaries will only help them evade liability where redress is necessary. Facebook itself accepted that it failed to comprehend such misuse of its platform and it could have done better to handle the situation and thus should be held accountable for its failure to curb incendiary hate speech. One possible solution is the drafting and implementation of a uniform code in order to prevent misuse of internet intermediaries by an international body. The specialized entity would ensure compliance, comprehensively regulate internet intermediaries, and decide what kind of liability is appropriate for noncompliance. However, such regulation should balance and in no way suppress the freedom of expression and opinion. The code ought to provide the ways in which internet intermediaries should handle cases where any such mischievous activity is traceable, such as in the case of hate speech catalyzing the Rohingya Genocide. Finally, the code should set standards for the requisite infrastructure intermediaries must establish to overcome language barriers and adequately prevent harmful user-generated content. The temporary blocking of Facebook may be seen as an effective measure to control the spread of misinformation. However, the measure is not in harmony with human rights principles of the freedom of expression and thus should not be considered as a viable option to curb the misuse of such internet intermediary. Rather, the code proposed in the above paragraph provides a solution that balances effectiveness with users’ rights. Conclusion The current international law governing cyberspace, and particularly internet intermediaries, provides enough immunity for them to facilitate the freedom of expression and opinion. The idea of governing internet intermediaries has its limits. For example, if the law of servers theory prevails, intermediaries may be able to escape liability even more easily, as they could easily establish their servers in favorable jurisdictions which provide absolute immunity to such intermediaries. As a result, states that face the material effects of intermediaries’ conduct are left without recourse. Author Arpit Lahoti is a IV Year B.A. LL.B. (Hons.) student National Law University Nagpur. Sherry Shukla is a III Year B.A. LL.B. (Hons.) student at National Law University Nagpur.

Acropolis Athens Greece by Christo Anestev Article by Hayley Durudogan, Seated at the heart of Athens, Greece stands the famed Parthenon. The Ancient Greeks constructed the temple between 447 and 432 BC as an ode to Athena and a celebration of Greece’s recent military victories against the Persians. The Parthenon has survived the rise and fall of the Greek, Byzantine, and Ottoman empires, though it was severely damaged during times of war. After falling into disrepair during the 17th century, the temple became a tourist site and visitors frequently took a piece of the Parthenon with them as a historical souvenir. In the 19th century, the Earl of Elgin arrived in Greece, marking the start of a new and contentious era in the Temple’s history. Elgin supposedly paid the Ottoman Empire to take many of the Parthenon’s marbles back with him to Britain where he exhibited them on his property before eventually selling them to the British government to be housed in the British Museum. Today, the Marbles remain in the Museum’s possession, despite much legal and political controversy. Arguments For and Against Repatriation of the Parthenon Marbles Museums around the world, from the Louvre in Paris to the New Museum in Berlin, consistently use the ill-gotten gains of colonization to bolster their collections. During the colonial era, foreign powers seized items of great economic, artistic, historic, and cultural value from colonized nations, sometimes under dubious legal arrangements. Today, Western museums still claim ownership to many of those artifacts, including the Rosetta Stone, the Bust of Nefertiti, the Benin Bronzes, and, most notably for the purposes of this piece, the Parthenon Marbles. While the colonial era may have come to an end, vestiges of the colonial mindset are alive and well in debates, such as that surrounding the aforementioned Marbles. In the Parthenon Marbles debate, arguments for repatriation center on the rights of Greece and Greek citizens to have access and ownership over artifacts core to their nation’s history and identity. As many scholars have highlighted, the Parthenon is no ordinary building. The temple stands tall in the nation’s capital as a proud relic of the Ancient Greek Empire and as a symbol of what it means to be Greek. To analogize, the Parthenon is to Greece as the Statue of Liberty is to the United States or the Eiffel Tower is to France: a beloved national monument that is as symbolic as it is historic. In 2021, as in 1821, Greek citizens must travel to England if they are interested in seeing approximately fifty percent of the remaining Parthenon Marbles. Having to visit another country to access one’s own history is enough to give anyone pause, but it is especially concerning to those with an interest in international law and comity. International law is premised on respect for the sovereignty of nations. How can the United Kingdom purport to respect the sovereignty of Greece if it denies the country’s right to ownership over its own history? What is Britain saying about Greece when it refuses to return the Marbles? The British Museum has employed a variety of arguments to justify keeping the Marbles, but the current favorite is that the Marbles are so historically significant that they belong to the entire world and that Greece does not have any unique claim to them. If, for a moment, we are to suspend our disbelief and accept this argument, why does this justify Britain keeping the Marbles? As Aaron D. Rosenberg highlighted, Greece is positioned at “the geographical center of European, African, Asian and Mideast culture…[and]…perhaps serves as a more accessible location than London to the international community to whom these artifacts [supposedly] belong.” Furthermore, many tourists visit Greece expressly to view ancient Greek artifacts. Surely, if the Marbles are part of a world history, it makes more sense for them to be housed where people actually go to explore Greek history. One would not think to go to Russia to view the United Kingdom’s cultural history, so why should we expect tourists to go to the UK to view Greece’s? Despite the above argument, however, it appears that the United Kingdom’s real concern with returning the Marbles lies not in historical or preservationist arguments, but rather, in legal ones. The legal concept of precedent is central to Britain’s hesitation to return the Parthenon Marbles. Like many western countries, Britain is concerned that the Marbles’ return could set a precedent that depletes their museums of foreign artifacts. In light of this fear, we, like the Greeks, must turn to international law to see if the museums’ concern is justified. Repatriation Claims in International Law In light of the growth of international law, the Greek government has increasingly turned to the discipline as a potential mechanism for securing the return of the Parthenon Marbles. One argument the Greeks advance is that the Marbles were obtained illegally. This argument rests on two grounds: first, that the Ottoman Empire did not have authority to sell the Greek cultural artifacts to the Earl of Elgin; and second, that the Earl of Elgin exceeded the authority given to him in the agreement with the Ottoman government. Unfortunately, the original Ottoman copy of the agreement is lost and the surviving, contemporaneous Italian translation “is at best ambiguous” about what Elgin was or was not allowed to take from the Parthenon. Legal scholar J.H. Merryman suggests that the Italian translation of the contract “provides slender authority for the massive removals from the Parthenon.” Evidence from the time also suggests that the Ottomans were well aware of Elgin’s actions and did not contest them, which would further negate the illegality argument. In recent years, some scholars, such as law professor David Rudenstine, have contended that the Italian document is fraudulent and was modified in order to justify Elgin’s claim to the Marbles. If Elgin did indeed steal the Marbles, the British Museum would not have a legitimate title to them, and the Greek government could file a claim for the Marbles’ return in British court. Another avenue for repatriation is through the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Theoretically, the Convention provides for the return of stolen cultural artifacts, but in practice, its power is limited. The convention applies only to stolen items that were imported post-ratification. The UK did not ratify until 2002 which drastically circumscribes the scope of the Convention. As the Marbles were removed in the 19th century, the convention cannot retroactively require their return. Furthermore, the Marbles’ situation is complicated by the fact that the British Museum is a non-departmental public body which is overseen by a board of trustees, not the British government. The United Nations is not empowered to hear disputes between states and private entities and thus cannot directly intervene. Despite these limitations, UNESCO recently offered to mediate the dispute resolution process between Britain and Greece. However, both the British Government and the British Museum rejected UNESCO’s offer. In 2018, the Athenian’s Association pursued another legal avenue for redress: the European Commission on Human Rights. The Association argued that the UK’s actions violated the right to respect for private life, freedom of conscience, freedom of expression, effective remedy, and property, as these rights relate to cultural identity. Unfortunately for the Association, the Court declined to rule on the merits of the case, citing both the inadmissibility of the claims and the fact that the court could not retroactively apply EU human rights obligations to acts which occurred before the obligations existed. In 2020, a new avenue for repatriation was again explored when, during Brexit negotiations, the EU suggested that return of foreign cultural artifacts, including the Marbles, would be a stipulation of the UK-EU trade agreement. The UK staunchly rejected this proposed stipulation claiming that the clause demonstrated “a troubling lack of seriousness about the negotiations on the EU side” and emphasizing that “the marbles were going nowhere.” It appears that the UK has won this battle for now, as repatriation of cultural artifacts is not a stipulation of the UK-EU trade agreement. Alternate Pathways for Resolution Although international law has yet to compel the Marbles' return, there exist many alternate legal mechanisms for securing repatriation. One potential legal solution is via treaty. Greece could make the Marbles’ return a condition of future treaties with the United Kingdom. Once ratified, the treaty would obligate Britain to return the Marbles or, facing further dispute, would at least provide a potential avenue for dispute resolution via the International Court of Justice or another legal body. Furthermore, this would counter the Museum’s concern about precedent because treaties do not set precedent, nor can a single treaty be the basis for customary international law. However, it hardly seems just to require the Greeks to bargain in order to regain their own cultural heritage. Another potential approach was recently employed by Italy against the US. Italian museums refused to loan any items to the United States until their requested artifacts were returned, and, facing the prospect of losing access to Italian artifacts, the US acquiesced. A similar approach could prove effective for Greece. To quote Executive Director of Lawyers’ Committee for Cultural Heritage Preservation, Leila Amineddoleh: As Greece has a rich archaeological trove, bargaining may be successful. International fervor is rising over the dig at Amphipolis, an elaborate burial site in Northern Greece that may contain the remains of a relative of Alexander the Great. Prohibiting British archaeologists to access [sic.] the site and barring any finds from going to British institutions may be one way to apply pressure for the return of some of the Parthenon Marbles. The Greek government could also turn to soft law in their repatriation efforts. While global condemnations, working group decisions, and NGO guidelines may not be binding, they can place pressure on the UK to return the Marbles. As the majority of the British public favor repatriation, additional political pressure could be enough to compel action, given the lack of public support. A soft law standard opens the door to establishing customary international law in this area, which would benefit not only Greece, but also the many nations around the Globe whose cultural artifacts are trapped behind glass in Western museums. The above avenues for resolution have potential, but each have their drawbacks. The treaty avenue involves Greece making a deal (i.e. giving something up) in order to get back its own cultural heritage, which seems more extortionate than just. The Italian avenue is incredibly risky given that it could exacerbate tensions and prompt backlash from the UK. The soft law avenue could prove effective in the long run, but it is possible that, despite agency guidelines and denunciations, Western states will remain resolute in their refusal to return the artifacts and contest any proposed customary international law on the subject. The aforementioned solutions give some hope for repatriation, but none would be as effective or just as adjudicating the dispute in an international court. What does the fact that Greece cannot simply take the UK to court over this issue say about international law? The turbulent history of the Parthenon Marbles is illustrative of the possibilities and limitations inherent in international law. On the one hand, international law provides Greece with a legal avenue for redress which was not available to them 200 years ago, but at the same time, that avenue is incredibly limited and must weigh claims of sovereignty against claims for justice. In the Parthenon Marbles dispute, it is clear that justice demands the Marbles’ return. Greece has a right to its cultural history and the United Kingdom’s arguments for keeping the Marbles are entirely colonial in nature and disregard the compelling moral, historical, and political reasons for repatriation. Unfortunately, international law cannot always respond to the demands of justice. International law is an incredibly complex discipline wherein the foundational principle of sovereignty must at times supersede concerns of fairness and justice. As much as I personally would like to see the Marbles returned to Greece, I pause at the notion of flouting sovereignty or process in order to do so, because I believe that could disproportionately hurt formerly colonized nations. In preserving sovereignty, we secure the continued rejection of colonialism by ensuring that no one nation may flout another’s right to self-governance. In sum, the question of if or how the Marbles will be returned to Greece remains open. All I can say for now is that I hope one day international law, with respect for the guiding principle of sovereignty, will see the Parthenon Marbles returned to the people whose ancestors carved them millennia ago. Author Hayley Durudogan (J.D. Candidate, Class of 2023) is a contributor to Travaux. Hayley's interests include international human rights law, reproductive justice, and gender justice. Prior to attending Berkeley Law, Hayley was working in political communications in the field of reproductive rights.