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"International Flags"by pennstatenews is licensed under CC BY-NC-ND 2.0 Article by Adhiraj Lath and Abhinav Jena, No discourse on International Law can be concluded without duly honoring the noteworthy contributions of Judge Sir Hersch Lauterpacht. Widely regarded as one of the greatest international lawyers of all time, his works have been instrumental in molding the modern system of international law. Judge Lauterpacht, formerly a Whewell Professor of International Law at the University of Cambridge served as a member of the International Law Commission and subsequently as a Judge of the International Court of Justice. His seminal writings still resonate in the study of international law. He vociferously advocated for human rights, inter alia, well before it was a widely accredited discipline. His compelling writings and reflections have transfigured him into an international law behemoth, whose name is etched into the monumental annals of international law. Among his plethora of contributions to the firmament of International Law, one notable contribution was an attempt to settle the debate of state recognition. Judge Lauterpacht propounded the ingenious Lauterpacht doctrine of state recognition which purports that once a particular community fulfills the conditions for statehood, there exists a concomitant obligation on the part of the existing states to confer recognition to the community espousing statehood since a central authority is lacking under international law. The theory extends to the rights and duties accorded to the state, can be posited as an adaptation of the constitutive theory, and marks a reconciliatory attempt in ascertaining state recognition. However, detractors have vehemently opposed the Lauterpacht doctrine on the ground that it is devoid of the basic consideration that comprises the foundational premise of state recognition: the political pretext and functions of recognition. Unsurprisingly, state practices reveal that international law has not adopted the Lauterpacht doctrine. This blog attempts to explore the various theories of state recognition under international law, then deconstructs the Lauterpacht doctrine in order to discern why the international legal community has rejected the ingenious venture to strike a balance between popular theories of state recognition. Exploring the Lauterpacht Doctrine vis-à-vis State Recognition Recognition of states has always been a contentious topic in international law as it intricately revolves around politics, international law, and municipal law. When a new state comes into existence, other states are confronted with a problem of deciding whether or not to recognize a new state. Recognition entails the willingness of preexisting states to deal with a new state as a member of the international community. Political circumstances and legal consequences simultaneously drive this willingness. The question which arises often is, when does an entity which duly fulfills the prerequisites of being a state actually become a part of the international community with legal rights and obligations? Two theories attempt to answer this question. The first is Dionisio Anzilotti and Hans Kelsen's constitutive theory, which posits that a state or government does not exist for the purposes of international law until it is recognized by other states. Thus, recognition has a constitutive effect. The constitutive theory was diametrically opposed to the declaratory theory, which argues that recognition has no legal effect and the existence of a state is a mere question of fact. Accordingly, recognition by a state is just an acknowledgement of those facts. If an entity objectively fulfills the legal requirements of statehood under international law, then it is a state, and for all intents and purposes, is conferred with all the international rights and duties. Accordingly, other states have an obligation to treat states so defined as states. Lauterpacht formulated an intermediate position, arguing that on the basis of the constitutive theory, once prospective states have complied with the conditions prescribed by international law for statehood, existing states have a duty to grant recognition. The reason behind such an approach was the absence of a central authority in international order to accord legal personality. The Lauterpacht doctrine is both declaratory and constitutive. It is based upon certain facts but also relies on recognition of the state as an entity which possesses all the rights and obligations of statehood by other states in the international community. The doctrine is an ingenious bid to reconcile legal elements into a coherent theory. It accepts the realities of state and government creation by practical and occasionally extralegal means, and attempts to assimilate such means into the supremacy of international law. Deconstructing the Doctrine and Emanating Criticisms The Lauterpacht doctrine attempts to combine the two prevailing theories of state recognition. It commences on a constitutive footing and thereupon imposes a duty on the preexisting states to grant recognition to the prospective community seeking recognition. Once this constitutive recognition is accorded, if the prospective state also meets the objective criteria for statehood, it automatically exhibits the declaratory facet of recognition. A deluge of detractors have assailed this theory, claiming it to be devoid of any considerations of actual and ideal international law. Lauterpacht’s theory, in essence, may try to harmonize a much debated topic of international law. Yet, it represents neither the current state of law nor existing state practice. First, it ignores the primary and foremost point of granting state recognition, namely, to confer political backing and the accompanying political functions and aspects. Second, whether a non-state entity possesses a right to demand recognition if other states are obdurate to recognize imposes limits on the obligation of states to recognize. If we answer the question affirmatively, then we are giving a non-state community with no rights or duties the ability to demand recognition, which is a logically absurd result. The complexity calls into question the efficacy of the Lauterpacht doctrine as a solution to state recognition discourse. There are copious instances in which states have refused to grant recognition as a mark of political disapproval. For example, the United States did not recognize the effective Soviet government for a long period of time in resistance to communism. Great Britain and the United States did not recognize the effective governments of Bolivia and Argentina, established in 1943 and 1944 respectively, whereas the United States did recognise the revolutionary government of General Odria in Peru. In 1903, the United States recognized Panama only three days after it had revolted against Colombian sovereignty and at the same time took steps to prevent the re-establishment of Colombia’s sovereignty. Similarly we can point to the situation in 1948 when the United States recognized Israel within a few hours of its proclamation of independence. In 1976, the United States Department of State noted that: “In the view of the United States, international law does not require a state to recognise another entity as a state; it is a matter for the judgment of each state whether an entity merits recognition as a state.” The State Department made clear that recognition is a discretionary act, resting in the hands of states. The July 1992 Opinion No. 10 of the Yugoslavia Arbitration Commission adopted a similar position, emphasizing that recognition was “a discretionary act that other states may perform when they choose and in a manner of their own choosing, subject only to compliance with the imperatives of general international law.” Thus, the Lauterpacht doctrine fails to accept the reality that recognition has always been more of a political act rather than a legal act, and that states prefer reserving the power of recognition to vouch safe political approval or disapproval. Questions surrounding the doctrine are catalysts for academic discourse however, with state practice being an indicator that international law intelligibly displays an absence of a duty to recognize. Concluding Thoughts Judge Lauterpacht’s scintillating venture in morphing the state recognition discourse into something more palpable and objective is an untenable thesis. The Lauterpacht doctrine assumes that the obligation of other states to recognize states which have fulfilled the objective criteria of statehood is mandatory, even though most instances of state practice do not support this conclusion. Finally, the Lauterpacht doctrine is lucid in its application and is categorically situated in the realm of a priori postulation, a digression from state practice. However, Judge Sir Hersch Lauterpacht’s contribution cannot be undermined or dismissed in its weaving the warp and weft of modern international law, despite the untenable premise of this doctrine. Authors Adhiraj Lath and Abhinav Jena are third-year law students at Dharmashastra National Law University, Jabalpur with a keen interest in International Law and allied fields.

Photo by BMN Network Article by Aakarsh Banyal, Across the 3,400 kilometers of the Sino-Indian border, mountainous terrain and water bodies have rendered delimitation an uphill task. The complex topographical features of the border leave the Line of Actual Control (“LAC”) vaguely-defined and disputed by both parties, with India and China maintaining different perceptions of the definition of the territory. Physical indeterminacy forms the basis of recurring disputes between the bordering nations as both seek to exercise their sovereign rights over the disputed territory. Since the terrain offers substantial strategic advantages, both States have been carrying out various construction activities in the area to establish a connection with their respective mainland and a speedy mobilization of their military. The dispute came to a head in June, when troops from both States clashed in the Galwan Valley region. India attributed the deaths of its soldiers to Chinese brute force, but China dismissed all accusations leveled against it. Amidst such rising tensions, the recent deployment of the Chinese military in disputed areas along Pangong Tso Lake has rendered the situation extremely volatile. Most importantly, the 1996 Indo-China Border Agreement, (“1996 Agreement”) dissuades both parties from utilizing its military capabilities in and around the LAC. China’s conduct could entail consequences for the state under international law. However, despite widespread political and diplomatic discourse on the topic, the position of the international legal community on actions resorting to such armed force remains vague. This blog provides an analysis of whether China’s actions in the present border skirmish could constitute an act of aggression under international law. Acts of Aggression and the General Prohibition on the Use of Force The United Nations General Assembly (UNGA) Resolution 3314 defines “act of aggression” as the use of “armed” force by one State that violates the territorial integrity or sovereignty of another State, “or in any other manner inconsistent with the UN Charter.” After the crime was incorporated into the Rome Statute, discussions surrounding the definitional requirements largely subsided. The application of the UNGA definition, however, is still unclear due, in part, to the uncertainty surrounding the required threshold needed to hold a State responsible for an act of aggression. Evident in the UNGA definition is the twofold-requirement for an “act of aggression:” a) use of armed force and b) violation of territorial integrity or sovereignty. Use of (Armed) Force: Nebulous Standards With respect to the first requirement, it is notable that the word “armed” precedes “force.” This inclusion signifies subtle, yet portentous distinctions between prohibition on the use of force in general under Art. 2(4) of the UN Charter and the use of armed force under UNGA Resolution 3314. The first point of distinction concerns the means employed to exert force. A restrictionist interpretation would claim that the phrase refers to the use of conventional or traditional means of weaponry. This interpretation is supported by the travaux since the Brazilian delegation’s proposition to add economic coercion within the folds of ‘use of force’ via Article 2(4) of the UN Charter was set aside, indicating the drafting committee’s intention to restrict the ambit solely to traditional means of warfare. Furthermore, the specific acts laid down in the definition render conventional weaponry or instruments intended to utilize weaponry such as tanks, aircrafts, among others, part of the prima facie case. On the other hand, an expansionist interpretation endorses an effects-based approach, which accounts for the effects of some act rather than the means used to achieve some result. This approach is also in consonance with the Nuclear Advisory Opinion, which stated that prohibition on the use of force “applies to any use of force, regardless of the weapons employed.” However, the International Court of Justice’s (ICJ) opinion notably was restricted to Art. 2(4) of the UN Charter and does not necessarily extend to the definition of aggression. The second point of distinction pertains to the threshold required for an act to qualify as a use of “armed” force. To that end, the Preamble to Resolution 3314 states that the threshold for an act of aggression is higher than use of force under 2(4) of the UN Charter. In addition, the Assembly of States Parties to the International Criminal Court (ICC) recognized the narrow import of aggression as opposed to a general prohibition on the use of force. This implies that even if an act were to qualify as a use of force under 2(4), it still might not meet the de minimis threshold of a use of “armed” force. In addition, in Nicaragua v. United States of America, the ICJ specifically stated that minor frontier incidents do not qualify as uses of force. In the context of military incursions, however, UNGA Resolutions have treated non-forcible incursions and encroachment of territory as “aggressions” or acts of aggression” [Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court, p. 88 (2015)]. Furthermore, in the Costa Rica v. Nicaragua case, the ICJ opined that dredging a river in a disputed territory could amount to a potential illegal use of force. Therefore, the nebulous threshold of “armed” force makes achieving a precise standard for acts of aggression difficult to reach a definite conclusion with respect to a precise standard that ought to be satisfied for an act to qualify as an aggression. However, it is reasonable to conclude that acts falling outside the purview of Art. 2(4) of the UN Charter do not amount to acts of aggression. Lastly, the aforementioned decisions and resolutions indicate that military presence or involvement in a disputed territory may be an important factor while considering a perceived violation of the use of the “armed” force standard. Violation of Territorial Integrity and Sovereignty The requirement of violation of territorial integrity and sovereignty takes on a different meaning in the case of disputed territories. As stated in a report by the British Institute of International and Comparative Law, the criteria for determining whether a violation of territorial integrity and sovereignty has occurred in a disputed territory is the alteration of the existing status quo (protected by law) through “forcible” measures. Hence, even if the title has not been determined, a State can still commit aggression if it attempts to alter the status quo. In the Context of the Sino-Indian Dispute In light of the above standards, this part analyzes whether a claim by India of an act of aggression by China can be sustained. The LAC qualifies as disputed territory since both States have competing claims regarding the title to this territory. Therefore, any activity in the territory by either State could be alleged as a violation of territorial integrity and sovereignty. Furthermore, the status quo denouncing military activities in this region has been established in the 1996 Agreement. Whether China disrupted the status quo through its use of armed force remains in question. Two activities are relevant to an inquiry into whether China has disrupted the status quo, and thus, violated the territorial integrity and sovereignty in LAC: first, the death of 20 Indian soldiers during the Galwan clash; and second, the Chinese establishment of military presence in the Tso lake and Chushul region. With respect to the former, these acts may not reach the threshold of “armed” force as they did not result in widespread violence. Minor frontier incidents and border skirmishes, as stated supra, do not reach the de minimis threshold of the use of armed force. Even so, India may argue that the death of the 20 Indian soldiers constitutes use of armed force because the ICC has previously admitted cases concerning the ‘Crime of Aggression’ where fewer casualties (10 killings and 12 killings) than the present border crisis occurred. However, the fallibility of this argument lies in factual dissimilarities between the present border crisis and the cases ICC admitted. The Sino-Indian crisis relates to military casualties at the border (‘frontier incidents’) as opposed to civilian and peacekeeping personnel casualties that took place in cases at the ICC, implying that the two cases are distinguishable. Further, the threshold in cases of frontier attacks is seemingly higher, as evidenced by the ICJ’s observations in Nicaragua. Regarding the latter, the establishment of a military presence could lead to a tussle between the nebulous standards to establish violation of the prohibition on the use of force because of varied interpretative routes as shown earlier. China could argue that the carrying out of economic activities (here, for the purpose of increasing connectivity and transportation facilities) would not make it responsible insofar as there is no infliction of direct physical harm. An effects-based analysis would render the link between the challenged activities and damage to life or property even more tenuous, precluding State responsibility. However, India could respond by relying on the lower standard in UN General Assembly Resolutions where mere military presence amounted to aggression. Furthermore, the presence of Chinese bombers, armored vehicles, special forces, and infantry units at the LAC, combined with the use of weapons by Chinese troops in inflicting damage to the Indian side are relevant. Concluding Remarks All things considered, it is possible to demonstrate disruption of the status quo by the Chinese military through forcible means owing to the casualties and China’s expanding military presence across the LAC. However, the burden of showing that these forcible measures amount to use of ‘armed’ force: a sine qua non to establish an act of aggression remains a strenuous one. The jurisprudence of the ICJ sets a high threshold, although the same could be parried by the ICC’s softer approach coupled with a reading of earlier UNGA Resolutions. Ultimately, the present Sino-Indian military dispute is a clash of opposing approaches on the act of aggression as defined by UNGA Resolution 3314. Should the matter be escalated, the wide margin of appreciation would reduce the predictability of the outcome of the dispute–a potential reason why both parties have not seriously relied on international law to counter each other’s claims, despite the possibility of developing the jurisprudence in this regard. Although the Sino-Indian border dispute makes for an interesting academic exercise, the question remains whether diplomatic means can diffuse the situation in practice. Author Aakarsh Banyal is a published author and is currently reading law at Symbiosis Law School, Pune, India. His research interests include Public International Law and Security Studies.

Data Security Breach by Blogtrepreneur Article by Harsh Srivastava, The recent cyber feud between Israel and Iran is a cause for international concern. While the Iranian cyber attacks disrupted Israel’s railway services and water supplies, the sudden crash of Shahid Rajaee Port’s traffic control systems and mysterious fires in Iran have been attributed to Israel. The attacks have created a “tit-for-tat” precedent of targeting critical civilian infrastructure, and are a “changing point in the history of modern cyber warfare.” The series of attacks on the healthcare sectors of France, USA, and Spain during the COVID-19 pandemic has further reinforced the need to regulate cyber attacks to effectively protect civilians. The principles of distinction and proportionality form the basis of International Humanitarian Law (IHL). While IHL recognizes that civilians may be harmed during an armed conflict, these principles ensure that civilian objects are not the direct targets of attacks and that the collateral damage to civilians is minimal. Though cyber operations target data, existing IHL regulates only cyber operations resulting in adverse physical consequences to civilians or civilian objects. This approach is insufficient as it ignores non-physical adverse consequences. Treating data as an object under IHL would render damage to certain data an essential part of proportionality and distinction analysis, regardless of the nature of consequences. This article builds upon Kubo Mačák’s argument for an evolutive interpretation of IHL that recategorizes data as an ‘object’ to ensure effective protection of civilians from cyber operations. Consequence-based Approach The focus of assessments of whether an operation amounts to an attack has shifted from the operation’s ‘instrumentality’ to its ‘consequence.’ The analytical shift has been critical in regulating cyber warfare under IHL. While the chairman of Tallinn Manual’s drafting panel agrees that non-physical attacks can result in severe consequences, the majority of the panel focused on the nature, rather than the severity, of the attack. Nevertheless, several experts within the panel disagreed, maintaining that the determining factor should be severity. Similarly, France also recently shifted its focus onto the gravity of an incident and the severity of its impact, inter alia, on the economy, civilian security, and fundamental services. Following a similar approach, whether a cyber operation amounts to a cyber attack should depend on the gravity of the incident and the degree and effect of the intrusion, physical or otherwise. Protection of Financial Data Economic violence, in different forms, drives and sustains modern conflicts. The economic consequences of an attack are essential to a holistic assessment of the attack’s severity. Economic rights are inseparable from human rights in the modern world, and there are arguments in favor of treating serious economic crimes as crimes against humanity. The economic effects of targeting data may be just as, if not more severe than the physical effects of a traditional attack. For instance, attacking an empty parking lot or an unused bridge in a far-flung area will trigger IHL as these are civilian objects, even where the attack has inflicted no incidental harm to civilians. However, a cyber operation resulting in billions of dollars worth of economic loss falls outside the scope of IHL, despite the direct and significant harm such loss might have on the population. Illustratively, the Associated Press Twitter account hack which led to a $136 billion equity-market value-loss did not trigger an IHL violation. Adopting the current approach of requiring a physical effect leads to a dichotomy where attacks with lesser consequences are regulated, but more devastating ones are not, simply because the medium of harm in the case of cyber attacks is not physical. Such an interpretation is contrary to IHL’s object and purpose of protecting civilians. In order to prevent this anomaly, along with some States, the Prosecutor of the International Criminal Court has also adopted the approach of factoring in economic damage when assessing the gravity of crimes. Experts consider loss of data integrity, which can catalyze market-manipulation and crash the world economy, as among the most severe risks, globally. Given the modern financial market’s reliance on data and technology, its protection against cyber attacks becomes imperative. Further, given the interdependence of global financial systems, disruption in one financial market creates ripples across the globe, as seen in the 2008 Financial Crisis. Attacks on financial data can affect states and individuals not party to the hostility too. This assumes even greater significance given the $1 trillion cryptoassets market existing only in the form of data. Doubts may arise about including cryptoassets in the proportionality and distinction analysis under IHL given their questionable legal status across the globe. However, though they may not be recognized as legal tender in some jurisdictions, most countries have not declared them illegal per se. For instance, India has not prohibited the trading of cryptoassets, though it does not recognize it as legal tender. In such countries, attacks on cryptoassets should certainly be considered while assessing the severity of attacks, and in particular, the economic damage they produce. Moreover, even in countries that have completely prohibited cryptoassets, such as Egypt, mounting a cyber attack on civilian crypto assets should amount to an IHL violation. An analogous case is the targeting of Afghan drug-lords by NATO, which was considered to be a violation of IHL even though drug trade was illegal. While Dapo Akande made an interesting argument in favor of targeting poppy fields and drug labs, that theory was based on local Afghan law which allows for such targeting, not on IHL. Similar targeting in other states would have required the permission of those respective states. Given that there is no local law allowing for targeting of crypto assets, though they might be illegal, its targeting should be considered to violate IHL. Thus, taking the non-physical and monetary effects of data-targeting into account for proportionality and distinction analysis is vital to protecting civilians against indiscriminate and grave damage. While there is much debate as to the extent of protection that must be afforded to such civilian data, the growing need for some protection at all it is increasingly clear, with a number of institutions working towards devising a policy in that regard. Protection of Essential Civilian Functions Multiple experts, organizations and States have reiterated the importance of protecting critical civilian infrastructure and essential services. To that end, certain objects and property have been afforded special protection from hostilities under IHL owing to the nature of their function or significance attached to them. While some critical civilian objects such as medical units have been afforded special protection under IHL, medical data has curiously been omitted. Expressing discontentment with this approach, ICRC stated that data belonging to objects enjoying special protection under IHL should also be protected. A number of international law experts, through the First and Second Oxford Statements, have emphasized the need for protecting medical records and research data during the COVID-19 pandemic. A minority of Tallinn Manual drafters also concluded that “civilian data that is ‘essential’ to the well-being of the civilian population is encompassed in the notion of civilian objects and protected as such.” Further, the International Committee of the Red Cross (ICRC) opines that the object and purpose of IHL mandates the prohibition on tampering or deletion of essential civilian data–an assessment Professor Schmitt agrees with in principle. However, even these protections would not be sufficient to effectively protect civilians and civilian data because the special status is not afforded to other critical data-sets, such as election records, tax records, law-enforcement records, social-security data, among others. The International Review of the Red Cross makes a case for developing state practice to afford special protection to “essential civilian functions or services.” However, categorizing particular activities as essential functions is difficult due to varying and dynamic interests of states. While determining a universal threshold definition seems unachievable at this point, a focus on the severity of consequences is a good starting point. IHL should afford protection to those data sets, attacks on which would have a significant impact on critical civilian infrastructure. For instance, France has adopted the approach that attacks disabling significant parts of the country’s activities, an ecological or technological disaster, or leaving a significant number of victims constitute a significant impact on critical infrastructure. Another such example would be acts impeding the delivery of social services or hindering primary and secondary education. Conclusion Owing to the dynamic nature of armed conflicts, the definition of ‘object’ must evolve. International legal protection should be unfettered by a mere shift from paper to virtual filing. Excluding data from the IHL definition of ‘object’ would leave civilians and civilian objects vulnerable to cyber attacks, effectively relaxing IHL norms and allowing belligerents to target civilians in violation of the intransgressible principle of distinction. Moreover, damage to civilians by such attacks would not even form part of a proportionality analysis. Considering the potential consequences of excluding data from IHL protections, and given that the object and purpose of IHL is to protect civilians from those very consequences, the need of the hour is to regulate cyberspace in order to maintain and improve the integrity of certain categories of data. To that end, experts have argued for the development of state practice where states would afford special protection to essential civilian functions under Customary International Law by declaring certain functions or objects as “digital safe havens''. ICRC has even suggested drafting complementary rules to effectively protect civilians. Undoubtedly, gathering consensus would be an extremely difficult exercise, especially in light of Russia’s and China’s recent refusal to acknowledge the applicability of IHL to cyber warfare altogether. However, adopting an evolutive approach to read data as an object under the extant treaty law of IHL would not require us to wait for the development of state practice to afford effective protection of data. Such an interpretation is better suited to address the immediate challenges of modern cyber warfare, pending the success of alternatives. With “Cyber Winter” coming, the need to shield civilian data with the blanket of IHL is growing imminent. Thus, IHL should account for evolutions in how we store and transmit data, the most valuable resource of the 21st century, to be successful in achieving its object and purpose of protecting civilians from the adversities of warfare. Author Harsh Srivastava is a 5th year B.A., LL.B. (Hons.) student at the National Law School of India University, Bangalore.

Scales of Justice - Frankfurt Version by Michael Coghlan Article by Vaibhavi Patel, Section 375 of the Indian Penal Code (IPC), which categorizes rape as an offense in the country, exempts rape by a man of his own wife from the offense. Even the Supreme Court of India affirmed that marital rape is not a criminal act if the victim is above the age of 18 years. The non-recognition of marital rape as a wrong renders the women of India devoid of any mechanism by which they can obtain redress for an otherwise internationally recognized human rights violation. The lack of recognition and redress could even have adverse physical or psychological implications. However, by supporting the criminalization of marital rape, members of the public have adopted an opinion contrary to the legal precedent in India. A bill recently introduced in the Lok Sabha that would criminalize marital rape suggests that the contrary view is growing prominent. As marital rape has a notable presence in India, it becomes important to understand whether the country’s non-recognition of marital rape as a crime violates international human rights standards. Following an analysis of India’s infringement of the human rights norms embodied in various international instruments, this blog concludes that the country, by omitting such norms in the IPC, defies the rights of women and shall thus bear the responsibility of applying sanctions to the wrongdoer, providing reparation to the victim, changing the penal laws to make them consistent with international human rights laws, and effectively enforcing measures to tackle gender-based violence. Convention on the Elimination of Discrimination Against Women (CEDAW) An analysis of the provisions of CEDAW suggests that India is in violation of international human rights principles prohibiting discrimination against women and rape. According to Article 1 of CEDAW, ‘Discrimination Against Women’ includes “any distinction...made on the basis of sex which has the effect of impairing...the exercise by women, irrespective of their marital status...of human rights and fundamental freedoms in the...social, cultural, civil or any other field.” Deliberate exclusion of marital rape in IPC fits within the CEDAW definition of being discriminatory in nature, since rape committed by the spouse of the victim upon her body has been justified merely on the basis of the victim’s marital status, thus denying her the protection guaranteed to unmarried women. Marital rape should therefore be punished in the same manner as rape with an unmarried woman is. General Recommendation 19 (GR-19) of CEDAW deems acts that inflict physical, mental or sexual harm upon women as discrimination against women. GR-19 also defines ‘human rights and fundamental freedoms’ as including “the right to highest standard attainable of physical and mental health”. The GR-19 further notes that the effect of violence on physical and mental integrity deprives women of the equal exercise of human rights and fundamental freedoms. The direct relationship between violence and liberty elucidates that rape, is harmful to the physical and mental health of a woman, whether the perpetrator is their spouse or not, and therefore violates human rights and fundamental freedoms of a woman. General Recommendation 35 (GR-35) of CEDAW which updated GR-19 added, inter alia, that marital rape is rape on the basis of a lack of freely given consent and takes account of coercive measures. GR-35’s recognition of the elements of marital rape highlights the infringing effect of its non-recognition upon the fundamental freedoms of women. India has not signed the Optional Protocol to CEDAW, which establishes a committee responsible for monitoring State Parties’ compliance with the Convention. By not recognizing the committee as an institution, India has barred the committee from taking any action against India even if acts which violate CEDAW occur within its jurisdiction. Although individuals cannot approach the committee with its grievances, India continues to have an obligation to protect and enhance the human rights of women notwithstanding their marital status. Under Article 2(f) of CEDAW, India is obligated to take all appropriate measures, including legislation, and to modify or abolish existing laws, customs and practices that discriminate against women. GR-19 also acknowledges that within family relations, women of all ages are subjected to violence that is perpetuated by tradition and social attitudes, including rape. The persistent, predominantly male, convention of disbelief that consent is necessary post-marriage maintains the occurrence of marital rape. New legislation or amendments to the existing IPC are necessary and sufficient in order to reform traditional conceptions of consent. Other International Human Rights instruments India’s non-recognition of marital rape as a crime violates international human rights instruments, namely the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) in addition to CEDAW to which it is a party. The IPC definition of rape discriminates against married women, and thus lies in contravention to Article 26 of the ICCPR. Article 26 of ICCPR requires that domestic law guarantee equal and effective protection against discrimination on any grounds including any other status of a person, besides those already mentioned in the provision such as race or sex. As India is a party to the Covenant, it is not permitted to derogate from any fundamental right recognized in the Covenant, according to its Article 5. Non-recognition of equal protection of married women in IPC amounts to a failure to legally guarantee equal dignity to all women. Article 1 of the UDHR asserts that all human beings are free and equal in dignity and rights. This affirmation of equal dignity and rights makes no distinction between humans on the basis of their status, as all human beings and accordingly even married women have rights equal to those of unmarried women. Article 28 of the UDHR entitles individuals to a social and international order in which the rights and freedoms set forth in the declaration can be fully recognized, obligating India to foster a social environment favourable for married women. The passage of new legislation or legislative reform criminalizing marital rape is the most tangible and direct means by which India can fulfill its UDHR obligations. The Beijing Declaration and Platform for Action India’s laws contradict not only international human rights instruments but also principles recognized in the Fourth World Conference on Women held at Beijing. The Beijing Declaration encourages countries worldwide to ensure universal ratification and complete implementation of CEDAW, to the extent that reservations to CEDAW be limited and the Optional Protocol be ratified. In this declaration, countries were also urged to remove discriminatory legislative provisions including, inter alia, penal codes, as an urgent priority. Such a declaration is especially relevant for countries like India, where the state has taken no legislative or legal measures to combat the rising frequency of rape cases. The state could change its discriminatory penal code and ratify the Optional Protocol, to not only check the compliance of CEDAW but also provide an avenue for redress to impacted women. Although, India has successfully taken several measures to curb discrimination against women, it is yet to take concrete measures to admonish the practice of marital rape, a phenomenon that has been recognized internationally as a crime and that drastically impedes upon the human rights of Indian women. Ramifications of the Violations An analysis of GR-35 shows that owing to its discriminatory provision for rape, India shall have to face ramifications for its state and non-state actors. GR-35 provides for responsibility for acts and omissions of state as well as non-state actors arising from the violation of Article 2 of CEDAW, which mentions the undertaking of State Parties to CEDAW to pursue means to eliminate discrimination against women. As for responsibility of States, if a state fails to produce or correct laws in order to ensure that they are not discriminatory against women, or if its organs or agents commit acts or omissions which are discriminatory against women, it is obliged to apply appropriate sanctions as well as provide reparation to the affected party. With respect to non-state actors, GR-35 provides that States have a due diligence responsibility for the actions of non-state actors. Accordingly, if States fail to eliminate discrimination engendered by any person by failing to take preventive measures and to fulfil the duty to investigate, prosecute, punish, and provide reparation for violence against women, they will be held responsible. The GR-35 further clarifies that under this obligation, State parties are required to adopt and implement diverse measures to tackle gender-based violence against women, and also that these measures have to be effectively present in practice and be diligently enforced by all State agents. A failure to fulfill G-35 obligations would amount to a human rights violation. The principle of due-diligence in ensuring the elimination of violence against women has also been backed by the Declaration on the Elimination of Violence Against Women under its Article 4(c), which provides that States should pursue by all appropriate means a policy of eliminating violence against women and should exercise due-diligence to prevent, investigate and punish acts of violence against women whether committed by state or private actors. This, the declaration pursues, should be in accordance with national legislation. However, it also provides under Article 4(d) that States should develop penal sanctions in domestic legislation to punish the wrongs caused to women. Therefore, it is a recognized principle that violation against women should be curbed by any efficient manner, including domestic legislative reform. Conclusion The 59th session of the Commission of Human Rights in 2003 affirmed that violence against women constituted a violation of the human rights and fundamental freedoms of women as it impaired their enjoyment of such rights and freedoms. India indisputably continues to violate international human rights norms and laws by ignoring the reality of marital rape within its jurisdiction and instead conforming its laws to traditional and unethical standards. Regardless of their conservative beliefs, every institution in the Indian society must respect the basic human rights norm of treating each other with dignity. The state should condemn any diversion from human rights principles, so as to ensure the fundamental well-being and development of its women. Author Vaibhavi Patel is currently a third year student pursuing the course of B.A. LL.B. (Hons.) in Gujarat National Law University. She has a keen interest in International Criminal Law, Indian Criminal Law, as well as International Humanitarian Law. She also enjoys reading on topics related to the interface of law and politics.

Climate change: Russian art contest by UNDP in Europe and Central Asia Article by Isabel Cortes, Violence, poverty, political unrest, and economic instability are contributing factors that have led to the migration of many Latin Americans. While these factors are critically important in understanding migration patterns, one of the most significant factors missing from the analysis is climate change. From an international law perspective, the nexus between climate change and climate migration has been of scholarly debate, especially in recent years. Nonetheless, significant work is necessary to clarify how to label people affected by the climate crisis, to develop international migration or refugee programs, and to ensure that those most affected by climate change are not disproportionately impacted when seeking refuge. Finding a Common Definition for People Impacted by Climate Change Immigrants, particularly those from Latin America, have often been criminalized for beginning their migration. Various actors refer to this journey north as a “wave” or a “caravan”. Although these words are not necessarily bad, they miss the mark in identifying the human element–fathers, mothers, children, brothers, and sisters–who make up those “waves” and those “caravans.” Grouping immigrants into such pejorative language curbs the opportunity to unpack the factors that contribute to their migration. Many victims of violence in their native countries are also victims of climate change. Maxine Burkett, a Berkeley Law alumna and expert in the law and policy of climate change, argues that one of the first barriers in addressing climate-induced migration is how to define people impacted by climate change displacement. Language such as “climate refugees,” “climate migrants,” and “climate displaced persons” is used interchangeably by the media, scholars, and political leaders alike. The lack of consistency in and agreement on a common definition prevents the international community from adopting once and for all a definition that can be used universally, helping to ensure that people receive the legal recognition that can bring them legal protection. A common definition is particularly important for Latin American immigrants who have been impacted by the climate crisis. Climate Change and Climate Migration in Latin America The Great Migration, a 2020 publication in partnership between ProPublica and The New York Times Magazine, highlights that severe droughts, flooding, and lack of agricultural productivity in many Latin American countries has contributed to migration and displacement. In the publication, a particularly important projection is that, as the climate continues to change over the course of the next 30 years, more than 30 million Latin American migrants will head toward the U.S. The Great Migration is not the only publication drawing a connection between climate change and climate migration. In 2018, the ‘Dry Corridor’ was of particular focus in a Univision publication that described how climate change plays a role in Central American migration. The inability to grow fruitful harvests, to make productive agricultural products, and to limit environmental degradation is only making life more difficult for migrants. In many instances, Latin Americans are faced with a harsh choice–whether to leave their home countries and migrate north where they will face an uncertain future, or remain in their home countries where they will inevitably battle the uncertainty of droughts, excessive rains, and severe flooding. International law must look closely at how climate change is exacerbating migration movements in Latin America. Because this body of law is intersectional and dynamic, the international legal community has a timely opportunity to shape the future of international immigration policies. The United Nations (UN), in collaboration with other international agencies, is currently working on a Climate Change Task Force on Displacement who will analyze the relationship between climate change and migration; but the task force has not yet demanded enough action by countries around the world, leaving much practical work to be done. The International Organization for Migration, a UN Migration Agency, published a policy brief focused on Central and North America and the impact of natural disasters and environmental change. Since it was publicized in 2018, the climate change situation in Latin America has only gotten worse. As the nexus between climate change and climate migration continues to receive cover, international law practitioners must rethink how they can respond in a way that accounts for the oft-neglected human element of the daunting issue of climate change. The Global South and the World’s Poor Will Suffer Most One of the unfortunate truths about climate change is that the world’s poor and the Global South will face the greatest consequences. Countries in the Global South contributed less to climate change, including in the form of carbon emissions, than did the U.S. and other developed countries. Yet, due to limited resources for climate change adaptation and disaster response, they will suffer disparate dangers and harms from natural disasters enhanced by climate change. As climate change continues to play out, severe changes will continue to exacerbate displacement and migration from residents of Latin America. It is important to identify that migration is indeed connected to climate change; but the influence of that identification on international policies and solutions is minimal. The UN Framework Convention on Climate Change (UNFCCC) needs concrete solutions to the issue. The UNFCCC centralizes climate change on the global stage, but since the UNFCCC’s establishment in 1994, no global and mandatory policies have arisen. Similarly, the 2015 Paris Climate Agreement is a voluntary, politically encouraged agreement that is not legally enforceable. In fact, the Trump Administration has demonstrated that a country can easily withdraw from the agreement. Although mandatory policies are incredibly difficult to establish internationally, more can be done to support people disproportionately impacted by climate change. Frameworks and conventions rely on more than just climate change reports–we need solutions that are founded in equity and responsibility. A Path Forward and the Danger in Not Acting Poverty, political conflict, violence, and economic instability will continue to take place in the years to come. Many Latin Americans will continue to migrate north, and as the connection between climate change and poverty becomes more prominent, the international legal community will need to offer solutions to address the social inequality of climate change or to address the fractured global policies relating to immigrants. The solution is a coordinated effort between climate scholars, international agencies, countries affected by climate change, and countries who will become host countries. A joint effort to finalize a legal definition for climate migrants and a framework of international legal protections will help advance solutions to protect those affected by climate crisis and climate displacement. The International Organization for Migration (IOM) has adopted “climate displaced persons” as the official term when referring to people affected by climate change and have defined climate displaced persons as “persons or groups of persons who, for compelling reasons of sudden or progressive changes in the environment as a result of climate change that adversely affect their lives or living conditions are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their own country or abroad.” The IOM’s definition is by far the most comprehensive definition which the international community should adopt. We are in a pivotal moment and the danger in not acting is severe–human lives will be lost, entire communities will be displaced, and loss of land and natural resources will continue to be depleted. The path forward for climate change must be central in collaboration, accountability, and, to the extent possible, must be required by international law. Three years ago, the United Nations High Commissioner for Refugees estimated that about 44,400 new displacements were occurring every day. The development of new international law principles regarding migration has the potential to change this number and set migration in a new direction. However, not acting, not establishing an official definition for people affected by climate change, and not setting concrete international policies will only exacerbate the danger of widespread and disparate suffering, contributing to inequality and continued displacement. The state of climate change makes a proactive approach necessary. It goes without saying that the responsibility to act is a shared one that must start from international law and encompassing individual countries, corporate stakeholders, state and local governments, and most importantly, a call to countries who have contributed the most to our climate crisis. There is no time left; this planet is all the time we have. Collective inaction is reckless. Author Isabel Cortes is a second-year law student at Berkeley Law. She is interested in exploring the interdisciplinary and intersectional issues of climate change, climate crisis, and equitable energy law. Isabel holds a B.A. in Political, Legal, and Economic Analysis and a B.A. in Ethnic Studies from Mills College. Prior to law school, Isabel received a Master of Public Policy and worked at the California State Senate and Energy Foundation.

Permanent Premises of the International Criminal Court by United Nations Article by Nidhi Pratap Singh, The United Nations fact-finding Report on Myanmar recognized that Facebook played a “significant role” in facilitating large scale atrocities. In 2018, hundreds of military personnel created troll accounts, news and celebrity pages on Facebook and flooded them with incendiary comments on Rohingyas. In response to public outcry about Facebook’s lack of a response, the social media giant admitted that it did not do enough to prevent the spread of hate speech and false news in Myanmar. A Reuters report suggests that human rights activists in Myanmar had brought the proliferation of incendiary and misinformation to the attention of Facebook officials, including Mia Garlick (facebook's then-director of Asia Pacific Policy), who later admitted that they were slow to respond to the warnings. Facebook’s role in fueling hatred against Rohingyas has brought forth the question of whether social media controllers risk criminal liability for facilitating incitement to genocide before the International Criminal Court (ICC). While inaction against hate speech and misinformation on a global scale seems intrinsically wrong, the Rome Statute is limited in two ways which impede prosecution of direct and public incitement to genocide (DPIG) as an inchoate crime. DPIG as an Inchoate Crime and the Causal Nexus Element Article 25(3)(e) of the Rome Statute criminalizes DPIG, explicitly punishes “direct[] and public[] incite[ment] [of] others to commit genocide.” However, some scholars argue that the Rome Statute weakens the prohibition of DPIG because ‘incitement’ has been relegated to a mode of participation in the final crime of genocide, contrary to the International Criminal Tribunal for Rawanda (ICTR) and International Criminal Ttibunal for the former Yugoslavia (ICTY) statutes. The ICTR and ICTY codify ‘incitement’ as a distinct crime. Article 2(1) of the ICTR states that “the International Tribunal for Rwanda shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this Article or of committing any of the other acts enumerated in paragraph 3 of this Article.” Paragraph 3(c) punishes direct and public incitement to commit genocide. Article 4(1) of the ICTY Statute is identical to Article 2(1) of the ICTR. Conversely, Article 5 of the Rome Statute, which lists the core crimes over which the ICC has jurisdiction, does not mention DPIG. Article 6 of Element of Crimes, which describes the elements of genocide, also carries no mention of incitement to genocide. Consequently, the DPIG is only a mode of participation, the prosecution of which as a standalone crime is effectively impossible at the ICC. In order to convict someone of DPIG, the prosecutor would have to (a) prove that genocide occurred, and (b) establish a causal link between incitement and the genocide, in addition to proving that the accused incited genocide. Proving causation can be the most difficult part of the trial, especially in cases of incitement on social media. The relegation of DPIG as a mode of participation is problematic for several reasons. Firstly, it negates the objective of criminalizing DPIG, which is to forestall the occurrence of genocide. Secondly, a necessary causal nexus between incitement and the subsequent crime of genocide contradicts the inchoate nature of the crime of incitement, which is punishable regardless of success. Authors argue that the DPIG remains an inchoate crime under the Rome Statute because, unlike other modes of participation such as those in Article 25(3)(a)-(c), DPIG “breaks with the [factual] dependence of the act of complicity on the actual crime” and is an “expansion of attribution.” The difficulty, however, arises from the fact that the ICC has never prosecuted a person for DPIG, either as a mode of responsibility or a standalone crime. In the absence of any precedent, the court is likely to rely on ICTR and ICTY rulings on incitement. Although incitement features as a standalone crime in their respective statutes and ICTR and ICTY have reiterated the inchoate nature of DPIG in their rulings, in several cases they have contrarily relied on the actual occurrence of genocide to substantiate that incitement did in fact occur. In some cases, the causal link between the incitement and the subsequent act of genocide is a legal inquiry, while in others, it is a factual inquiry. The discrepancy in courts’ treatment of the analysis as either a question of law or of fact signifies that the prosecution of incitement as an inchoate crime at the ICC is difficult at best. The Gravity Threshold The Rome Statute was enacted to end impunity for the most serious crimes of international concern. Its preamble describes these crimes as "unimaginable atrocities" that “deeply shock the conscience of humanity.” The Rome Statute’s gravity threshold language ensures that only grave crimes are prosecuted before the court. First, Article 5 provides an inherent gravity threshold which limits the jurisdiction of the court to “the most serious crimes of concern to the international community as a whole” of genocide, crimes against humanity, war crimes, and the crime of aggression. Second, Article 17(1)(d) provides an additional gravity threshold which states that a case may be declared inadmissible when it “is not of sufficient gravity to justify further action by the Court.” In order to assess the gravity of a case, the ICC relies on certain qualitative and quantitative factors. Qualitative factors include the scale, nature, manner of commission, and impact on the victims and the quantitative factor includes the number of victims. Quantitative factors are assessed on the means employed to commit the crime, systematic nature of the crimes, number of victims, among others. Specific elements of crime such as killings and rapes add to the gravity of the crime. The problem with the qualitative and quantitative factors is that they are largely inapplicable to speech crimes such as DPIG. Existing jurisprudence shows that the ICC has applied the factors only in the context of murder, rape, persecution, and other physical crimes. Factors such as scale, nature, and impact of the crime require evidence of physical and bodily harm. Since DPIG is a speech crime and does not in and of itself result in any physical crimes or violations, the gravity threshold can potentially require the prosecutor to assert a finding of genocide, to which the qualitative and quantitative factors can be made applicable. In order to prove genocide in connection with incitement, a prosecutor would have to establish a causal link between the incitement and the genocide, which increases the burden of proof and contradicts the prosecution of DPIG as an inchoate crime. Conclusion DPIG was criminalized under international criminal law to forestall the occurrence of genocide. Ad hoc tribunals such as the ICTY and ICTR have consistently reiterated that DPIG is an inchoate crime punishable in itself, whether or not a perpetrator completes the “actual” crime. However, under the Rome Statute, DPIG features as a mode of participation rather than as a standalone crime. ICTR rulings, which have often relied on the occurrence of genocide to confirm that DPIG did, in fact, occur suggest that DPIG is a mode of participation in the final crime of genocide. Another impediment to the prosecution of DPIG is the gravity threshold under Article 17(1)(d). The ICC’s gravity threshold jurisprudence emphasizes the importance of qualitative and quantitative factors of scale, nature, manner and impact of crimes. These factors have been applied only to physical crimes and remain largely inapplicable to speech crimes such as DPIG. A strict application of the gravity threshold factors could pressure the prosecutor to assert a finding of genocide, to which these factors can be applied, in order to satisfy the gravity threshold. However, a finding of genocide to prove DPIG would negate the inchoate nature of DPIG and contradict the purpose of its criminalization under the Rome Statute. One way to resolve the tension between the purpose of DPIG’s criminalization and the ICC’s treatment of the crime is to grant the prosecution sufficient discretion to define and modify the application of the gravity threshold on speech crimes. Gravity, in the specific context of DPIG, must be assessed on the systematic nature of calls for violence, the content of challenged speech, the degree to which they were repetitive and dehumanizing, the criminal history of the group inciting genocide, and the predisposition of the group’s its audience to commit violence against the victims. Such factors have been historically prevalent, for example, in the Rwandan genocide and in Nazi Germany, and can give effect to prosecuting incitement to genocide as an inchoate crime. Author Nidhi Pratap Singh is a fourth year law student at National Law University, Delhi. The author has previously written on domestic criminal law, constitutional law and international criminal law. Their work can be accessed here, here, here, here and here. They have a keen interest in International Law and its intersection with minority rights.

Berlin Lahore Ahmadiyya Mosque by Rabwah Article by Pooja Mehta and Jay Malwade, On May 5, 2020, Pakistan announced the formation of the National Commission for Minorities (NCM) in response to a Supreme Court decision directing the federal government to form a commission for the protection of minority rights and religious harmony. The Pakistan Cabinet withdrew its decision to include Ahmadis in the NCM. Forming a minute 0.22% minority of the Muslim population, Ahmadis have faced severe persecution from authorities as well as societal harassment for their beliefs. The NCM includes members of the Hindu, Christian, Parsi, Sikh, and Kelash communities. This blog highlights how exclusion of Ahmadis from the NCM violates provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Paris Principles, and furthers the means of persecution of Ahmadis. Ahmadis have long endured the brunt of prejudicial policies. In 1974, the Second Amendment to the Constitution of Pakistan declared that the Ahmadis were “not Muslims for purposes of law and Constitution.” Ordinance XX, promulgated in 1984, amended the Pakistan Penal Code, effectively prohibiting Ahmadis from practicing their faith as Muslims and calling their faith Islam. Upheld by the Supreme Court in Zaheeruddin v. State, the law equipped authorities with notorious blasphemy laws that were used extensively to oppress the community. The 2017 Election Act (the “Election Act”) retains provisions in the 2002 Chief Executive Order regarding the status of Ahmadis. As per the provisions, unless Ahmadis do not have a right to vote unless they sign a declaration stating that they are non-Muslims–something that is not required of any other non-Muslim community. Extremist policies such as those in the Election Act have handicapped Ahmadis and left them without recourse. International Law Violations Laws curtailing the rights of Ahmadis, who already are among the most persecuted communities in Pakistan, violate several international norms. Pakistan ratified the International Covenant on Civil and Political Rights (ICCPR) in 2010. Domestic laws prohibiting Ahmadis’ rights to freedom of religion and freedom to vote and be elected at periodic elections are violative of Articles 18 and 25 of the ICCPR. Additionally, though Pakistan ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the nation has violated its legal sanctity by orchestrating state-sponsored minority persecution and initiating blasphemy-based prosecution against Ahmadis. Pakistan has failed to protect the Ahmadis against religious discrimination and grant them equal status as citizens, in contravention of Article 26 of the ICCPR. The Sub-Commission on Prevention of Discrimination and Protection of Minorities condemned the promulgation of Ordinance XX, finding that it violated the right of religious minorities to profess and practice their religion. In doing so, Pakistan also violated rights conferred by the Universal Declaration of Human Rights. Decades ago, the country also ratified conventions such as Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and Convention on the Rights of the Child (CRC), provisions of which it has continuously and grossly violated. The All-Party Parliamentary Group’s report, “Suffocation of the Faithful: The Persecution of Ahmadi Muslims in Pakistan and the Rise of International Extremism” highlights the prevalence of targeted attacks on Ahmadi Muslims around the world, with an emphasis on Pakistan. The report is a bleak reminder of the fact that when a community is robbed of constitutional protections and targeted by the legal and societal spheres, they are at risk of being stripped of the most fundamental human rights. The overall composition of the NCM is also dissonant with the Paris Principles (the “Principles”), which provide for the functioning and legitimacy of national institutions. Under the Principles, anyone holding political office cannot be part of a national institution. Currently, a member of the Hindu community belonging to the ruling party, Pakistan Tehreek-e-Insaf (PTI), is the NCM’s chairman. The PTI member’s appointment severely impairs the autonomy and independence of the NCM. Although the Supreme Court judgment mandated that the NCM be a statutory body set up through legislative acts, the Cabinet formed the present Commission in a manner that restricts its ability to legally enforce its decisions. The Statement of Objects and Reasons of the NCM Bill recognizes that violence against ethnic and religious minorities is commonplace across the country. The said Commission’s function is to monitor the practical realization of the rights and safeguards provided to minorities under the Constitution. The exclusion of Ahmadis from, coupled with the subservient nature of the NCM obstructs it from fulfilling the very purpose for which it was created, instead enhancing institutional means of persecution. The Information Minister announced that Ahmadis were excluded from the NCM because they did not fall within the definition of ‘minority’. There is no generally accepted definition of minorities in positive international law, but certain recurring elements denote the essential characteristics of minorities, which are definitive of Ahmadis. According to the 1977 Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Francesco Capotorti, a minority is “a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members–being nationals of the State–possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.” The population of Ahmadi Muslims is estimated to be 4 million in a country of 212 million. The community has faced widespread discrimination due to their different beliefs and additional state sanction by the Parliament terming them as ''Non-Muslims”. Ahmadis today face widespread persecution and the community has sought refuge in several other countries to preserve their culture and ensure their communities' existence. Based on these characteristics, Ahmadis are quintessentially minorities. Various countries and international organs have historically considered Ahmadis minorities. Continued recognition of the group as a minority would allow them to avail the protection they require. Ahmadis and the International Landscape No human rights violation takes place in isolation. State-sponsored persecution of Ahmadi Muslims in Pakistan has led them to flee the country and seek refuge elsewhere. The countries to which they flee are not always signatories of the 1951 UN Convention Relating to the Status of Refugees (“Refugee Convention”) or the 1967 Protocol Relating to the Status of Refugees (“the Protocol”). As a result, while the UNHCR confers upon such people the status of refugees, Ahmadis who have fled sometimes cannot claim rights under the Refugee Convention or the Protocol. For example, Article 33 of the Refugee Convention ordinarily provides the critical protection against refoulement. Devoid of that right, refugees face a constant fear of being forced to return to the land from which they fled. In addition, many countries lack a formal national policy for refugee regulation. Ahmadis in such countries often live in inhumane conditions, crammed in tiny spaces with highly inadequate facilities as they live in constant fear of deportation. The recent Joint Report by the International Human Rights Committee sheds light on the harrowing conditions of Ahmadi refugees in Thailand and Malaysia, countries which are not signatories to the Refugee Convention or the Protocol. Ahmadis have sought refuge in other countries such as Afghanistan, Bangladesh, Algeria, Kyrgyzstan, Kazakhstan, Bulgaria, Belarus, Saudi Arabia, and Indonesia, but have faced discrimination and persecution akin to that from which they fled. With growing strife, discrimination against the Ahmadi community has transpired through legal, legislative, and social forces. In India, the Ahmadis are recognized as Muslims. However, the recent Citizenship Amendment Act (CAA), which aims to protect communities that have faced persecution on religious grounds, has become another instrument of discrimination against the Pakistani Ahmadi Muslims, among others. The text of the CAA protects the rights to practice, profess, and propagate religion, but its application is unequal. The convenient exclusion of Muslim minorities, such as the Ahmadis, from protective measures against neighboring countries portrays the legislation’s discriminatory impact. Today, the exclusion of the Ahmadi community from the NCM, which protects other minority communities, reinforces the failure and redundancy of the CAA. The decision to exclude Ahmadis from the NCM only exacerbates the vulnerability of the minority community. Pakistan must review its decision and call for a truly independent commission in order to better protect minorities, including those widely persecuted, like Ahmadis. Authors Pooja Mehta is a third year student of Gujarat National Law University pursuing B.A.LL.B.(Hons.). She is interested in Public International Law, International Criminal Law and Constitutional Law. Jay Malwade is also a third year student of Gujarat National Law University pursuing B.A.LL.B.(Hons.). He is interested in Constitutional Law, International Human Rights Law and International Criminal Law.

Photo by the Center for Reproductive Rights Article by Francesco Arreaga, The United States has a horrifying history of forced sterilizations, and sadly, these human rights abuses continue to this day. In 2014, several international organizations issued an interagency statement calling for the elimination of forced sterilizations. The statement noted that women are disproportionately impacted by these human rights abuses and “certain population groups, including people living with HIV, persons with disabilities, indigenous peoples and ethnic minorities, and transgender and intersex persons, continue to be sterilized without their full, free and informed consent.” This blog will describe the history of forced sterilizations in the United States and the recent accusations of forced sterilizations against undocumented immigrant women detained by ICE. I explain how reproductive rights are protected by our Constitution and several International treaties. Finally, I conclude by advocating for greater accountability in cases of forced sterilizations and the creation of a commission empowered to investigate the human rights abuses committed during the 45th President’s administration. On September 14, 2020, a whistleblower complaint alleged that immigrant women detained by ICE were undergoing non-consensual and unnecessary sterilizing gynecological procedures. Since the complaint, “many women who are alleging mistreatment, the vast majority of whom are Black or Latino, from the Caribbean, Africa and Latin America, are coming forward for the first time to report their allegations.” According to an LA Times report, women detained at the Irwin County Detention Center “were administered birth control and underwent procedures without their consent, including to remove their reproductive organs, such as the uterus, ovaries and fallopian tubes.” On November 19, 2020, more than one hundred members of the U.S. Congress sent a letter to the DOJ, DHS, and FBI discussing how several women accusing the government of forced sterilizations had been deported and requesting that no other women who may provide crucial evidence to the ongoing investigation be deported. The recent allegations of forced sterilizations at the hands of the federal government come against the backdrop of a long history of the U.S. government forcefully sterilizing persons. Lisa Ko describes how federally-funded sterilization programs driven by prejudice throughout the 20th century were “used as a means of controlling ‘undesirable’ populations – immigrants, people of color, poor people, unmarried mothers, the disabled, [and] the mentally ill.” Between 1970 and 1976 alone, it is estimated that “between 25 and 50 percent of Native American women were sterilized” by the federal government. Journalist and medical ethicist, Harriet A. Washington, documents in her book Medical Apartheid the abusive medical experimentation inflicted on Black Americans and how the forced sterilization of Black women “got its start during slavery, but has persisted in less overt forms in recent years.” It is also estimated that “about one-third of all Puerto Rican mothers aged 20 to 49 in 1965 were sterilized.” Medical experimentation on Puerto Rican women also took place in the 1950s. Experimentation for the birth control pill occurred in Puerto Rico, where “poor women were given a strong formulation of the drug without being told they were taking part in a trial or about any of the risks they’d face.” Professor Paul Lombardo has described how, in 1909, California enacted a sterilization statute that “made it legal to castrate a man or remove the ovaries from a woman, permanently preventing reproduction.” California's sterilization practices were so egregious that they were “held up as models for the Nazi regime” in Germany. Dr. Alexandra Stern explains that California’s sterilization law “sanctioned over 20,000 nonconsensual sterilizations on patients in state-run homes and hospitals, or one third of the more than 60,000 such procedures in the United States in the 20th century.” Dr. Stern also explains how women of color were disproportionately targeted by these policies and describes the class action lawsuit brought by Hispanic women who were subjected to “nonconsensual sterilizations in 1975” at the USC/Los Angeles County General Hospital. In 2013, NPR reported that approximately 150 women had been “sterilized in California's prisons” from 2006 to 2013. One person described how “she resisted the pressure to get a tubal ligation done — pressure that she says came while she was under sedation and strapped to an operating table.” Professor Lombardo has also shown how eugenics laws have historically been tied to America’s immigration policies. In 1920, the U.S. House of Representatives appointed an “expert eugenics agent” who espoused xenophobic and prejudiced views. Congress and the President went on to support the passage of the Immigration Restriction Act of 1924, which “was designed consciously to halt the immigration of supposedly ‘dysgenic’ individuals.” In the early 20th century, the Supreme Court legitimized the legally mandated sterilizations of persons in the United States. In 1927, the Court upheld a state statute permitting compulsory sterilization in Buck v. Bell. The Court rejected the argument that such a law was unconstitutional under the Fourteenth Amendment’s Due Process and Equal Protection Clause. The shameful Supreme Court decision was later cited by Nazis during the Nuremberg Trials. Recently, Supreme Court Justice Amy Coney Barrett noted that government forced sterilizations are unconstitutional. In an answer to a question for the record submitted by Senator Patrick Leahy pertaining to the recent allegations of forced sterilizations at ICE facilities, Justice Amy Coney Barrett noted that in Skinner v. Oklahoma, the Supreme Court “held that a state statute permitting the forced sterilization of certain criminal convicts violated the Equal Protection Clause of the Fourteenth Amendment.” The Supreme Court also recognized that the substantive due process rights of the Fourteenth Amendment protects the right to choose in Roe v. Wade and Planned Parenthood v. Casey. Thus, the U.S. Constitution prohibits forced sterilizations and protects the right to choose. Several international treaties also protect reproductive rights. The Rome Statute of the International Criminal Court explicitly recognizes forced sterilizations as a crime against humanity and a war crime. Article II of the Convention on the Prevention and Punishment of the Crime of Genocide categorizes “imposing measures intended to prevent births” as a form of genocide. The Guide to the application of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Belém do Pará Convention) recommends that States “adopt provisions to penalize forced sterilization as a crime and an act tantamount to genocide, war crimes, and crimes against humanity.” Article 39 of the Istanbul Convention also states that parties shall criminalize forced sterilizations. Moreover, UN human rights experts have noted that failing to protect the right to choose constitutes “discrimination on the basis of sex,” in contravention of the International Covenant on Civil and Political Rights Article 2. Our nation must come to terms with the horrifying history of legally mandated sterilizations and the current accusations of forced sterilizations. Our government must also heed the interagency advice published by the World Health Organization “to prevent coerced sterilization, to explicitly prohibit such practices, to respond to the consequences of these practices, to hold the perpetrators responsible, and to provide redress and compensation in cases of abuse.” Additionally, Congress and the next President, Joe Biden, should empower a commission to investigate all of the human rights abuses committed by the 45th President’s administration, including the allegations of forced sterilizations and the forced separation of at least 5,400 children from their parents at the southern border. Several members of Congress, including Representatives Rashida Tlaib, Alexandria Ocasio-Cortez, Ilhan Omar, and Ayanna Pressley, have already called for the United Nations to investigate DHS human rights abuses. To uphold principles enshrined in our constitution and shared in several international treaties, our nation must protect the rights of all persons to be free from forced sterilizations and to have the right to choose because reproductive rights are human rights. Author Francesco Arreaga (J.D. Candidate, Class of 2021) is a Contributor to Travaux. He has been a member of the Berkeley Journal of International Law since his first year of law school and has enjoyed writing for Travaux. Francesco holds a B.A. in Political Science and Chinese, as well as a minor in Global Studies from UCLA. He is currently the Co-President of the American Constitution Society at Berkeley Law and last year served as the Co-President of the Berkeley Immigration Group. Francesco is passionate about ensuring that the voices of immigrants, working people, and communities of color are represented in government. Currently, Francesco is interning as a law clerk in the U.S. Senate.

Red Eiffel Tower by Robert Delaunay at Solomon R. Guggenheim Museum, New York Solomon R. Guggenheim Founding Collection Article by Christian Delev, On July 7th 2020, President Donald Trump declared the United States’ formal withdrawal from the World Health Organization Constitution in the midst of the COVID-19 pandemic. To most observers, this course of action should not be an anomaly: in the last decade, multilateralism has witnessed a steady decline due to States’ inabilities to overcome “collective action problems”–situations where two or more actors must cooperate in order to further their common interests, even though each actor can individually benefit more by defecting from agreed-upon rules at the expense of others. Yet, while many States like China and the United States have opted for bilateralism, “infra-national multilateralism”–or multilateralism led by sub-State actors including domestic courts, municipalities and cities–has been suggested as a possible route to maintain multilateral cooperation and overcome global collective action problems. In this post, I argue that while cities and domestic courts can, in some instances, overcome collective action problems better than States can, their abilities are restricted by noted differences in the interests which they represent, domestic legal constraints, and regulatory capture. I make this argument in three parts: first, I outline the ways in which collective action problems limit States and outline and assess the reasons for their preference for bilateralism; second, I consider the ways in which cooperation between domestic courts and cities differs from inter-State multilateralism and its ability to overcome such problems; finally, I analyze the restrictions placed on municipalities and domestic courts, particularly their regulatory capture, composition, and domestic legal restraints. Why States Fail to Overcome Collective Action Problems Unlike situations in which States are faced with making collective decisions where either option would almost equally benefit them (coordination games), collective action problems emerge where States must cooperate in spite of their different interests. Mancur Olson has argued that small, homogeneous groups are better equipped to overcome such problems. Accordingly, in cases where many distinct States are involved, it becomes more difficult to overcome a collective action problem. For instance, due to the widely different interests of developed and developing countries during the WTO’s Doha Round, issues such as regulating fisheries and lowering agricultural subsidies created deadlock in negotiations. Similarly, many States (e.g. the US) have been restricted through the move against multilateralism since it is perceived as favoring special interests and offering only long-term gains, despite national governments desire for short-term gains. Moreover, hegemons’ inabilities to further their interests in multilateral settings may contribute to the failure of establishing multilateralism. Benvenisti and Downs adapt Weingast’s game theory model to illustrate three scenarios that may emerge: (1) the hegemon follows weaker States’ interests, (2) the weaker States cooperate to overcome the hegemon, or (3) the hegemon cooperates with some weaker States against others. Multilateralism weakens hegemons by challenging their powers, since the longer multilateral cooperation persists, the more homogeneous weaker States become, and the easier it becomes for them to jointly challenge the hegemon. While Benvenisti and Downs do present institutional fragmentation strategies, such as creating multiple “narrow” multilateral agreements, “infrequently” convening negotiations, limiting international bureaucracies, and “creating or shifting to an alternative venue,” the availability of anti-fragmentation strategies, including ensuring international tribunals’ independence and bridging different legal regimes, could restrict hegemons. In the long-run, multilateralism restricts hegemons’ capability in asserting their powers. For instance, while the United States has shaped the Anti-Dumping Agreement (ADA) to internationalize the existing US legal system, its subsequent interpretation in United States – Continued Existence and Application of Zeroing Methodology, inter alia, has rightly restricted the forms of permissible anti-dumping regimes under the agreement, despite article 17.6(ii) establishing the ADA’s prima facie wide hermeneutic scope. Similarly, the emergence of new hegemonic powers, particularly China, may threaten old hegemons’ abilities to unilaterally assert their powers within institutional settings. This is particularly visible in the World Health Organization context, where China has used its strong position to prevent Taiwan from joining the organization. Crucially, the rising presence of bilateral agreements allows hegemons to maintain their powers. For instance, China’s pragmatic “hub-and-spoke network” allows it to maintain control over weaker States by directly negotiating with them. Consequently, China retains significantly more opportunities to challenge weaker States and prevent them from collectively utilising multilateral rules against the hegemonic power. Benvenisti has also suggested that the United States used a similar “divide and conquer” strategy when first negotiating the TPP agreement with Pacific States, and then attempting to press the EU to accept the almost identically structured TTIP agreement, or when negotiating the USMCA by first reaching an agreement with Mexico and only subsequently including Canada in negotiations. Domestic Courts and Municipalities’ Ability to Overcome Collective Action Problems Unlike States, cities and domestic courts are capable of “overcoming” the collective action problem for a number of reasons. First, in line with Olson’s theory of collective action, cities–particularly urban and highly developed ones–are relatively constant since they represent similar social and economic interests. For instance, global city networks including the C40 group and ICLEI represent megacities’ environmental interests and are capable of cooperating because they share similar objectives, geographic characteristics (e.g., proximity to oceans and seas) and less pressure from special interest groups, like the agricultural lobby. Likewise, domestic courts generally share in their objectives, including the strengthening of the “domestic democratic mechanism” and in holding States to account for their existing international legal obligations where they represent communal or minority interests. The International Association of Refugee and Migration Judges accordingly allows refugee judges to cooperate in protecting refugees’ interests as embodied in international law. In terms of their power, cities and sub-States are well capable of representing their common objectives and challenging States whenever they fail to comply. Historically, the Hanseatic League existed as a network between Northern European cities which protected merchant guilds’ interests against those of States, even waging wars against Denmark in the 14th and 15th centuries. More recently, city networks’ pressure forcing States to sign the Paris Agreement and cities and other sub-State entities bringing challenges before domestic tribunals vis-à-vis environmental protection (e.g., California v. Trump climate change litigation) signify their impact on inter-State relations based on both domestic and international law. Furthermore, their ability to influence international corporations’ general environmental standards through internal regulation (e.g., the ‘California Effect’) means that their policies expand beyond the local remit. Likewise, domestic courts have been able to utilize their powers to apply both international and domestic law in order to hold States accountable. For instance, the Hoge Raad successfully held the Dutch government to account in the Netherlands v. Urgenda case vis-à-vis their emissions obligations using international human rights law. In Vedanta Resources v. Lugowe, the UK Supreme Court relied on domestic tort law to extend human rights violations and environmental harm claims against a UK parent company caused by its Zambia-based foreign subsidiary. Domestic courts provide the means to effectively oppose governments and maintain or even develop multilateral standards where they have similar interests. Restrictions to Domestic Courts and Municipalities Overcoming Collective Action Problems While domestic courts and municipalities are equipped to overcome collective action problems, they are nonetheless restricted by certain factors. First, municipalities are capable of being “captured” by special interests. Stigler argues, using the example of the United States’ decline in motorway carriers despite the rise in licence applications, “every industry or occupation that has enough political power to utilize the state will seek to control entry.” Accordingly, municipalities are theoretically susceptible to regulatory capture by relevant special interests. However, agency capture should be understood as a general limit on what municipalities can do, and not as a complete usurpation of states’ ability to “overcome” collective action problems. Second, the composition of municipalities and domestic tribunals can heavily influence their abilities to cooperate with others. Municipalities, for instance, are particularly susceptible to small interest groups–particularly local land developers–using their “voice” and “exit” strategies to enable policy change. Differences in composition can also allow local populist movements to organize and challenge attempts by municipalities to pursue multilateralism. Even so, compositional differences are relevant only to the extent that they are notable. Likewise, concerning judicial bodies, domestic selection procedures could lead to the definition of some domestic tribunals by judicial appointment procedures. For instance, in the United States, the ability to elect judges allows for “conservative” and “liberal” judges to hold differing political opinions and personal biases that can sway the resolution of cases. The electability of judges is particularly crucial vis-à-vis the United States Supreme Court, where the executive branch and legislature effectively control judicial selection procedures. Hence, a single political party who controls both the US Senate and Presidency has an increased ability to appoint judges of their choice. Hungary exhibits a similar phenomenon, wherein the judiciary’s composition has been reformed to favour the government using a controversial retirement law. While the law was later overturned, it nonetheless prevented many judges from returning to their previous high-ranking positions. Finally, domestic law can serve as a significant constraint on both municipalities and domestic courts. For instance, the domestic allocation of competences can restrict local and regional governance power. Similarly, regional and national law can prevent municipalities from adopting certain policies. For instance, some American states, such as Indiana have adopted “home rule” laws to restrict municipalities from pursuing unilateral environmental policies. In addition, despite California’s ongoing litigation against the Trump Administration, the EPA’s decision to revoke the federal state’s Clean Air Act waiver has prevented higher environmental standards from being adopted against air pollution. Author Christian Delev is a first-year PhD researcher at St Catharine’s College, University of Cambridge. He is also Managing Editor at the Cambridge Journal of International Law.

International Court of Justice at the Hague by United Nations Article by Kyle Tang, On November 12, the United Kingdom announced that China breached the Sino-British Joint Declaration (the “Joint Declaration”) when it imposed new rules to disqualify elected lawmakers in Hong Kong. Under the new rules, elected legislators may be removed if they support Hong Kong's independence, refuse to acknowledge China's sovereignty, ask foreign forces to interfere in the city's affairs, or threaten national security in any other way. Within minutes of the bill’s passage, Beijing-appointed officials labeled four pro-democracy lawmakers as threats and implemented the new rule to remove them from the Legislative Council of Hong Kong. Almost all remaining pro-democracy legislators resigned in solidarity with those removed, resulting in a 41-2 Pro-Beijing majority. China violates the legislative autonomy established in the Joint Declaration by imposing new rules to carve out the Legislative Council’s outspoken pro-democracy camp and sculpting a legislature packed with Pro-Beijing politicians. China’s conduct builds on the Hong Kong national security law's delegation of broad powers to Beijing authorities, which authorized excessively harsh penalties for dissent in response to the city’s massive pro-democracy movement. As China’s influence over the city grows, so does the international backlash. United States National Security Advisor Robert O’Brien threatened additional sanctions on Chinese officials for “extinguishing Hong Kong’s freedom.” Nigel Adams, UK Minister for Asia, stated that the Foreign, Commonwealth and Development Office was considering possible “Magnitsky-style sanctions”–sanctions against human rights offenders–for China’s disqualification of Legislative Council members. This is the third time that China has breached the Joint Declaration since Britain transferred control of Hong Kong to China in 1997, so why has China never officially been held accountable for its breach? The Sino-British Joint Declaration: Origins, Intent, and Enforceability The Sino-British Joint Declaration, signed between the UK and China in 1984, laid the foundation for Hong Kong’s transition from British to Chinese sovereignty. The Joint Declaration adopted a “one country, two systems” legal framework that was intended to guarantee Hong Kong a “high degree of autonomy” and certain rights and freedoms, including executive, legislative, and judicial power, until at least 2047. Because many of its seats are elected directly by the public, the Legislative Council is one of the few remaining forums in which the people of Hong Kong have a say in determining their futures. As Hong Kong’s promised bastion of autonomy crumbles, its people have little recourse as long as the enforceability of the Joint Declaration remains in question. This June, China declared the Joint Declaration a historical document that no longer had any practical significance. In response, the UK asserted that the Joint Declaration was still legally binding. The conflicting statements by the Chinese and British Foreign Ministries provide little in the way of resolution, but does the United Nations (UN) have the power to assert the enforceability of an international treaty? As a neutral intergovernmental organization, the UN provides baseline legal guidelines in the Charter of the United Nations (UN Charter) and judicial institutions like the International Court of Justice (ICJ) through which a nonbreaching party may find relief. Upon its ratification, the Joint Declaration was registered in the United Nations Treaty Series (UNTS), but article 102 of the UN Charter only establishes that parties to an unregistered treaty may not invoke that treaty before any organ of the UN, including the ICJ. Registration in the UNTS does not, however, guarantee UN intervention without a party to a treaty first raising a claim. The Joint Declaration itself does not contain any devices compelling compliance by either party. It does not include mechanisms for UN supervision, meaning only Britain and China have the right to raise claims for contractual violations. But neither country has ever exercised its right to enforce the Joint Declaration’s terms. For example, then-governor of Hong Kong Chris Patten proposed the 1994 Hong Kong electoral reform to significantly broaden the electorate base in the 1994 and 1995 elections without consulting China. China viewed Patten’s actions as a violation of the Joint Declaration, but due to factors such as the desire for a smooth handover process, China refrained from bringing a case before an international court. Similarly, the UK’s economy is currently highly dependent on its trade relations with China; China was the UK’s fourth largest import partner in 2019. The risk of damaging these external present-day economic interests deter the UK from bringing a case of breach before an international judicial institution, such as the ICJ or the Permanent Court of Arbitration (PCA). The International Court of Justice and Permanent Court of Arbitration: Avenues for Relief? The ICJ may offer two methods of relief. First, the UK, as a co-signatory, may bring a case before the ICJ for adversarial hearings. If the ICJ accepts the case, all countries involved must agree to binding arbitration by an international court, to which China is unlikely to agree. Second, article 96 of the UN Charter states that the ICJ may give advisory opinions upon request by specific UN agencies, but ICJ advisory opinions are non binding with few exceptions, and China’s influence over member states in the UN General Assembly would diminish the impact of an advisory opinion. Although the PCA accepts unilateral submission of disputes, it is not a UN organization and lacks legally binding power. In a previous dispute overseen by the PCA, China refused to participate in hearings and labelled the unfavorable verdict “a farce.” But while a PCA ruling against China is not legally binding, it may bolster nonjudicial actions by the UK, as well as by non-signatory countries. For example, in response to the drafting and passage of the Hong Kong national security law, the US suspended technology exports to Hong Kong, and the UK offered immigration opportunities to over 2.6 million Hong Kong residents. But other European countries may understandably be less eager to make such bold moves. Sanctions against China have typically been ineffective, and the future interests of many European countries depend heavily on the Chinese market. But the recent passage of a comprehensive European Parliament resolution suggests that more EU countries are taking a firmer stance against China’s unilateral actions in Hong Kong. The European Parliament passed a resolution which recommends that EU countries sitting on the UN Security Council convene an “Arria meeting.” This meeting would push the UN Secretary General to appoint a UN Special Envoy to address the situation in Hong Kong, as well as potentially file a case before the ICJ regarding China’s breach of the Sino-British Joint Declaration and International Covenant on Civil and Political Rights. While the resolution is a bold step, holding China to any degree of accountability ultimately depends on countries taking concrete action together. 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 Dzīvnieku brīvība Article by Kyle Tang, On Wednesday, November 4, Danish Prime Minister Mette Frederiksen announced the government’s plan to slaughter the country’s entire population of 17 million mink. This mass culling order occurred after scientists from Statens Serum Institut (SSI), a Danish infectious disease research institute, detected mutated strains of COVID-19 in mink. While mutations are relatively common and generally harmless, SSI detected two mutations that are concerning because they affect the virus’s spike protein, the target of many developing vaccines. Initial tests found that antibodies are less effective against the mutated strain, known as “Cluster 5,” but the full extent of its effects on vaccine efficacy remain unclear. What is known, however, is that Cluster 5 is capable of mink-to-human transmission. Twelve people in Denmark have contracted the Cluster 5 strain, and more than 200 others have contracted other mink-related strains. Experts believe that infected workers first spread coronavirus to mink on farms, where tight living spaces accelerated the infection rate between mink. These rapid transmission rates gave the virus a plethora of opportunities to accumulate genetic mutations, and now the virus has “spilled back” from mink to humans. While Cluster 5 fortunately appears to be under control, the possibility of more prolific mutations in the future is a lurking threat. With the European Union’s recent purchase of 300 million doses of the BioNTech-Pfizer vaccine and many other vaccine candidates in phase three trials, proliferation of a stable resistant strain at the current stage of the pandemic would be especially devastating. Additionally, researchers fear that the virus may find permanent reservoirs in mink and related species, allowing it to reemerge even after local eradication. The potential for such dire consequences underscores the danger of factory farming practices, and the world has taken notice. Denmark’s outbreaks across mink farms have had both domestic and international legal impacts. Amid accusations from Danish legislators and members of the fur industry that the government’s order was illegal, authorities later downgraded the order to a recommendation and submitted emergency legislation on November 10 to support a future order. In the United Kingdom, the Home Office, a government agency responsible for immigration law and policy, responded to Denmark’s mass outbreaks by implementing a travel ban between the two countries and expanding its self-isolation requirements. Similar coronavirus outbreaks have occurred in Spain, Sweden, Italy, the Netherlands, and the United States, all of which have begun culling populations from affected farms. Fearing that farms may become permanent virus reservoirs, the Netherlands implemented further measures, expediting a complete ban on mink farming by March 2021. British Health Minister Matt Hancock alluded to a possible global ban, suggesting that the international community should reexamine the mink farming industry. Sentiments concerning the global treatment of fur trade are not new. In fact, PETA and the animal protection charity Humane Society International have campaigned for a global end to the fur trade for years. What is unprecedented is how thin the line has grown between the real and hypothetical dangers that fur farming poses to international public health. The international community collectively banning fur farming could reignite the global effort to reform humanity’s relationship with the environment. 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 Office of the President-Elect Article by Hiep Nguyen, On Saturday, November 7, 2020, news networks around the world projected that Joe Biden would win the presidency of the United States and Kamala Harris would be the first woman elected to the vice presidency of the United States. The triumph of the Biden-Harris ticket was not only celebrated by Americans in major cities across the country, but also in global capitals. International leaders from German Chancellor Angela Merkel to Taiwanese President Tsai Ing-Wen sent their congratulations to the new president-elect. For countless global leaders, Biden’s election heralds a welcome and long-awaited change because his philosophy is firmly rooted in multilateralism: the idea that countries should work together to solve global problems instead of going it alone. To that end, a Biden-Harris administration will utilize the diplomatic muscle of the United States to work hand-in-hand with allies to advance human rights, democracy, and global cooperation. If successful, a Biden-Harris administration would fundamentally shift US foreign policy away from the nationalism, protectionism, and isolationism under the Trump administration and towards a brighter future. Below are some of the actions the incoming administration is likely to take in critical foreign policy areas: Climate Change On the day of the 2020 election, the outgoing Trump administration’s 2017 action to withdraw from the Paris Climate Accords (COP-21) officially took effect. This departure will ultimately be short-lived. The incoming Biden-Harris administration has already stated it will move to immediately rejoin the COP-21 Agreement. But beyond Paris, Biden would work with U.S. allies to take even more drastic measures to reduce climate change on a global scale. His domestic plans seek to set a global precedent with higher emissions targets, revolutionary investment in renewable energy infrastructure, and collaboration with large countries like China to reduce emissions from coal-fired plants and gas-powered vehicles. COVID-19 Instead of embracing a dynamic of unhelpful competition among countries in a “race” for the vaccine, Biden will emphasize global cooperation as the antidote to the ongoing pandemic. He will work with the United Nations to distribute an eventual vaccine on a global scale and ensure that all countries receive critical health materials equitably and safely. Alongside a strategy of mask-wearing and increased testing to control the virus on the domestic front, a Biden-Harris administration could also collaborate hand-in-hand with allies on opening safe travel corridors between countries and eventually easing border restrictions. Lastly, Biden would work with US allies to resume the presence of public health inspectors from the CDC across the world so that the spread of potential pandemic viruses from any region can be detected immediately and the world can work together on a strategy to contain spread and keep people safe. Human Rights and Democracy During his years in politics, President-elect Biden developed a reputation for his forceful advocacy of human rights and democracy. As the Chair of the Senate Foreign Affairs Committee, he called for the United States and its allies to stop recognition of the apartheid regime in South Africa and advocated for NATO forces and UN peacekeepers to intervene in Serbia to stop the genocide of Muslim minorities. In the latter half of his vice presidency, he worked with European Council leaders to rebuild democratic institutions from the ground up in Ukraine. Working on these same principles, a Biden-Harris administration could rally U.S. allies to increase sanctions on and forcefully condemn Chinese officials and businesspeople for their role in the genocide of Uighur Muslims in Xinjiang and the subversion of democratic elections and freedom to protest in Hong Kong. It will use every diplomatic lever possible to support the rights of minority groups from Kurdish people in Turkey to Rohingya people in Myanmar. And it will reopen American doors to and streamline the application process for immigrants, refugees, and asylum seekers from every corner of the world. This includes removing the public charge rule for green card holders relying on federal benefits, expanding temporary protective status for Latin American migrants, beefing up temporary work visas, and increasing refugee admissions to 125,000 people every year. NATO and the European Union Like many Europeans, Biden sees the European Union (EU) and North Atlantic Treaty Organization (NATO) as bulwarks of peace, democracy, and security in Europe. To that end, he will immediately halt the threats President Trump has continually made to remove funding and even depart from NATO, while still applying courteous diplomatic pressure to convince NATO countries to maintain their goals of spending 2% of GDP on defense. A Biden-Harris administration would also work with NATO to review and likely stop Trump’s reduction of allied troop levels in the continent, as Biden and many German leaders see the strong presence of allied forces in Europe as an integral defensive measure against an increasingly aggressive Russia. Moreover, Biden would push the post-Brexit United Kingdom to maintain an open Irish border as a condition for a critical bilateral trade agreement the British need with the United States. North and Central America While the Trump administration antagonized Canada and Mexico with tariffs and border walls, the incoming Biden-Harris administration will return to a policy of cooperation on economic and immigration matters. Biden supports the US-Mexico-Canada Trade Agreement (USMCA), he will stop construction of a border wall, gradually ease retaliatory tariffs, and will work with countries across the Americas to reinvest in Northern Triangle nations whose citizens are still migrating en masse to the United States. The Asia-Pacific President Obama’s “Pivot to Asia” doctrine, which increased US and NATO diplomatic, military, and trade presence in East Asia to support smaller countries in the region and counter a growing China, will make a quick return under President-elect Biden. He could work with US allies in the Asia Pacific to propose a new multilateral trade agreement in the vein of the failed Trans-Pacific Partnership, ensuring that party nations conduct trade with fair labor and environmental practices and benefits all nations in the region equitably. Photo by Pete Souza And as opposed to President Trump, who has repeatedly suggested reducing or withdrawing troops from Asia, Biden will maintain an armed forces and naval presence, as requested by allies such as South Korea, and warn Beijing about its incursions into areas such as the South China Sea. While South Korean leadership eagerly anticipates an expanded US presence in Asia to guarantee security for smaller nations, there are many who have also voiced pressing concerns. Thousands of indigenous Okinawans have protested continued US military base presence on their sovereign territory. There have also been significant reports over decades of sexual exploitation and violence among US military forces stationed in South Korea and Japan. Biden, who has vowed to take a hard line against sexual assault and abuse among US troops and has shown a willingness to listen to local leaders, will not shy away from addressing these serious issues. To Conclude The inauguration of President-elect Biden and Vice President-elect Harris will mark a decisive end to four years of isolationism, nationalism, and protectionism emanating from the United States. The impact of the incoming administration will be a new foreign policy dedicated to supporting democracy, upholding human rights and self-determination, and fostering cooperation among all nations to solve the difficult challenges that lie ahead for the globe. Vulnerable countries and groups will be more secure with the diplomatic muscle of the United States and its allies used to check bullies, enforce international law, bolster long-standing alliances, and increase refugee admissions. The active role America will play in shaping coordinated international action on climate change and COVID-19 will lay the groundwork for a healthier and greener future for generations. And the collaborative approach the incoming administration will forge on trade agreements will reduce barriers to economic activity while bolstering labor protections in North America and Asia, increasing shared prosperity across the globe. America’s welcome return to multilateralism in foreign policy and international law will positively impact lives everywhere. 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.