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Italian navy rescue asylum seekers by V. Futscher Article by Paulina Montez, In 2017, Italy and Libya signed a Memorandum of Understanding to enhance their cooperation with regard to immigration and border security. The agreement allows Libya’s Coast Guard to detain refugee boats in the Mediteranean Sea and return the refugees to Libyan detention centers. Human rights advocacy organizations such as Amnesty International have criticized the agreement. Activists disagree with the Libyan Coast Guard’s primary control of the Mediterranean waters, instead advocating for increased access by the nongovernmental rescue ships that previously monitored the Mediterranean. Amid the controversy, at least 16 migrants drowned off the coast of Libya in the Mediterranean Sea when their boat capsized on late September 24th. The boat left from Zliten on Wednesday night to be found late Thursday night by Libyan fishermen. The fishermen helped pull 22 people from the water who came from various countries including Egypt, Syria, and Ghana. Commodore Masoud Abdal Samad noted that autumn is a difficult season, as increased winds exacerbate existing risks, making the journey potentially deadly. As Libya has become more well-known for migrants passing through in hopes of getting to Europe from Africa and the Middle East, smugglers more frequently put families in boats that travel through the dangerous water of the Mediterranean Sea. In mid-August, dozens of other migrants died in a shipwreck off Libya’s coast. The waters have taken over an estimated 20,000 lives since 2014. Libyan authorities sent the survivors, who had been treated for their injuries, to the Zilten detention center. The routine procedure left many migrants in detention centers that are known for torture and abuse. Reports reveal the perils of disembarking in Libya as migrants have been trafficked or extorted by militiamen. Migrants are at risk of ending up in detention centers as a result of Libya’s increased control and the decrease in humanitarian ships that monitor the sea. Aquarius, a search and rescue ship that had saved thousands of migrants from drowning, was impounded by Italy under accusation of illegally dumping toxic waste. The charity behind Aquarius rejected the argument, claiming that Italy was attempting to criminalize humanitarian search-and-rescue missions. Prior to the accusation, Italy’s Interior Minister closed Italian ports, forcing the ship to sail for days with migrants on board. The Minister refused to accept more migrants from the ship, claiming ships like Aquarius only further encouraged people to migrate. Aquarius was the last rescue ship operating off of Libya when its operations ended in late 2018. Despite controversy surrounding Italy’s relationship with Libya, the Memorandum was renewed for an additional three years on February 2, 2020. Migrants continue to lack a safe avenue for travel as conflict continues in Libya between the UN-backed Government of National Accord and Libyan National Army. Although military commander Khalifa Hifter was pushed out ending his assault for control over Libya’s capital, fighting among militias continues. In mid-September, two rival armed groups fought in the town of Tajoura, resulting in the death of at least two militia leaders and one fighter. Heavy weapons were used in a civilian-populated area which risked damage to property and put citizens in danger, but the cause of the battle remains unclear. Salah al-Namroush, Tripoli’s Defense Minister, threatened to use force against the militias if they continued and demanded for them to disband. The United Nations Support Mission in Libya has also voiced concern about the continued conflict’s effect on people in Libya. World leaders such as France’s Macron have indicated interest in helping resolve the country’s conflict by gathering Libya’s neighbors to discuss long-term solutions. In February, the Italian Foreign Ministry sent Tripoli a proposal for changes to the Memorandum terms intended to increase support for migrants in Libya. Italy’s foreign minister also advocated in support of closing the Libyan detention centers and assisting voluntary returns from Libya to migrants’ countries of origin. The Council of Europe Commissioner for Human Rights urged Italy to commit to more significant action and to cease operations with the Libyan Coast Guard until Libya agrees to human rights compliance. Others urge for Italy and the European Union to look for long-term solutions in Libya by communicating with Libya's militias, including those who have reportedly committed human rights abuses. While Italy’s diplomats attempt to advocate for an end to the war, migrants continue to lack protection on their journey through Libya toward safety. Author Paulina Montez is a J.D Candidate at UC Berkeley School of Law. She is interested in the intersection of international human rights law and criminal law.

Black Lives Matter movement in Austria by Ivan Radic Article by Akshita Tiwary, The killing of George Floyd has sparked protests against racism and police brutality all over the world. Floyd uttered the words “I can’t breathe” in his last few minutes, words which have continued to define campaigns seeking to eradicate the well-established link between white supremacy and police brutality, which has cost the lives of Black Americans in particular. Last week, a Kentucky grand jury failed to convict any of the officers responsible for Breonna Taylor’s murder, again exemplifying a blatant lack of justice for Black Americans historically and currently suffering disproportionately severe and frequent police brutality. These instances are not isolated; they form a chain of events indicating deliberate mistreatment and abuse of power by discriminatory law-enforcement agencies, which are deeply entrenched in American history. With the resurgence of protests against police brutality, governments are being forced to reflect on the excessive use of force by police, especially in furtherance of racial discrimination, and to formulate new rules for regulating such use of force. International human rights standards shed light on the extent to which use of force by the police should and should not be permissible, where domestic law has failed to achieve retribution and justice. International human rights law lays down a uniform standard of rights which are equally available to every person, regardless of their race, gender, nationality, religion, or any other status. Most of these basic rights are contained in the Universal Declaration of Human Rights, the parent document for subsequent human rights treaties and conventions. International human rights standards require policing to be carried out in conformity with utmost respect for the human rights of alleged suspects or offenders. Recent instances of racist policing contravenes human rights standards by depriving Black Americans of basic rights such as right to life, dignity and non-discrimination. 'Use of Force' According to International Human Rights Standards In 1979, the UN General Assembly adopted Resolution 34/169 relating to the Code of Conduct for Law Enforcement Officials. Article 2 of the Resolution provides for the dignified treatment of all human beings. Under Article 3, officers are required to use only ‘necessary’ force and to do so in accordance with the principle of ‘proportionality.’ Finally, Article 5 prohibits the use of torture, cruel, inhuman or degrading treatment. The above principles are not exclusive to the UN’s Resolution. For example, the Office of the United Nations High Commissioner for Human Rights’ (OHCHR) International Human Rights Standards for Law Enforcement provides that law enforcement officials are obliged to know and apply international standards of human rights when dealing with alleged suspects. Policing authorities cannot discriminate on the basis of race, gender and colour, among other statuses, as all humans are equal before the law. The OHCHR emphasizes that “force is to be used only when strictly necessary” and that “force applied shall be proportional to the lawful law enforcement objectives.” The General Assembly adopted The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment in its Resolution 43/173 in 1988. Principles 1, 3, 5 and 6 contained therein provide for human dignity, consideration of human rights, prohibition of discrimination, and ban on torture, respectively. Clause 4 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides that force be used as a last resort only when other means of achieving the necessary result prove to be ineffective. Clauses 5(a) and (b) specify proportional use of force to minimize damage and to preserve human life. Clause 15 explicitly recognizes that law enforcement officials shall not use force on persons in custody, except when strictly necessary. Impacts of Racist Policing The defining moment in which we currently reside, in the wake of the killings of George Floyd, Jacob Blake, and Breonna Taylor among others, has evinced the systemic racism permeating the police force. This problem has continued for centuries, but has now been brought to the forefront with the global culmination of the ‘Black Lives Matter’ movement. In the United States, police ideology defines the world as a “profoundly dangerous place.” According to that worldview, officers can guarantee survival only by dominating the citizenry that they aim to protect, which leads to the use of disproportionate force, too often along racial lines. Rampant implicit bias and explicit racism by the police has taken the form of unfair treatment, increased suspicion, and increased targeting of Black Americans. The United States' Violation of International Human Rights Law These instances of police brutality, especially against Black Americans, are gross violations of the United States’ commitments under international human rights law. The United States has ratified three major human rights treaties, which are binding on all levels of government: federal, state, and municipal. In 1992, the United States ratified the International Covenant on Civil and Political Rights (ICCPR). Article 6 of the ICCPR codifies the legal protection of every person’s right to life. It stipulates that no person shall be ‘arbitrarily’ deprived of his life. Since excessive use of force contravenes legally permissible limits, it can constitute an arbitrary deprivation of life in violation of Article 6. Article 10 specifies that every person denied of their liberty should be treated with humanity and dignity, while Article 26 states that “all persons are equal before the law and are entitled without any discrimination to equal protection of the law.” In 1994, the United States ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Under this Convention, States Parties are required to prevent acts of cruelty, degrading treatment, or punishment that amount to torture. Article 10 of this treaty provides for training law enforcement personnel against the use of torture. In the same year, the United States also ratified the International Convention on the Elimination of All Forms of Racial Discrimination. Article 5(b) of the Convention protects a person from violence or bodily harm inflicted by government officials, while Article 6 provides for effective remedies through competent national tribunals and other state institutions to prohibit any form of racial discrimination. In its 1995 Concluding Observations on the United States, the Human Rights Committee (HRC) noted the reportedly large number of deaths and wounding caused by the police force in the discharge of their duties. It thereby urged the state to take all measures necessary to prevent any excessive use of force by the police. Even with 25 years of notice, the United States has failed to take adequate note of the HRC’s warning and has yet to prevent the arbitrary use of force. Its withdrawal from the United Nations Human Rights Council in 2019 has only crossed the line from inaction to overt disregard. The United States’ negligence represents a manifest lack in the government’s dedication to comply with treaties incumbent upon the state. Simply making laws that nominally prohibit the excessive use of force is not enough. In order to not only maintain its commitments under international human rights conventions, but also eradicate police brutality, the United States must at least train its officers in order to prevent such blatant injustice, and strictly punish officers who resort to excessive use of force. Effective Implementation of International Human Rights Law at the Domestic Level Most international human rights standards are contained either in treaties or customary law. Once a treaty is ratified, the state is legally bound to align its domestic measures with the requirements of its treaty obligations in order to ensure compatibility. By becoming a party to an international treaty, states assume duties under international law to respect, protect, and fulfill human rights. The obligation to ‘protect’ requires states to protect individuals and groups against human rights abuses, including police brutality. Thus, the onus first lies on the state’s legal mechanisms to offer proper redress to victims of police brutality. Uniform, unbiased, and proportionate punishment must be meted out to offenders in order to deter other members of the police force and prevent them from resorting to unlawful means while handling suspects. However, if a state fails to properly punish such officers, then a remedy may lie with international quasi-judicial bodies in accordance with different treaties, like the Human Rights Council (the Council) for violations pertaining to the ICCPR. Since the Council is composed of independent experts, its decisions provide an authoritative determination for remedies and reparations to be offered in case of violations under Article 2(3) of the ICCPR. Another way in which states can uphold international human rights law is by paying heed to reporting systems in the form of Concluding Observations, General Comments and Other Recommendations. These reporting systems function as primary tools for engaging with States Parties on domestic implementation. In the case of Concluding Observations, states make authoritative statements on the compatibility of domestic measures with treaty obligations and on measures recommended to improve their domestic implementation. For example, had the United States acted in accordance with the Concluding Observations in 1995, many cruel instances of police brutality could easily have been prevented. Since international law itself is based upon the concept of sovereignty, states’ willingness to comply with their obligations will play a major role in determining the persistence of police brutality. How to Adhere to International Human Rights Law Today, a state’s treatment of its own nationals are often viewed in the context of international human rights regulations. When law enforcement officials, in the course of their duty, violate a state’s obligations under international human rights law, the state becomes responsible for addressing its violations at the international level. States’ duties include an obligation to provide compensation and redress. States can be held accountable for international human rights offenses through inter-state complaints or individual complaints. There is no doubt that states and the people residing within them entrust law enforcement officials with important responsibilities. However, police brutality has a devastating effect on the relationship between the authorities and the community, as indicated by the recent frustration of protesters during ongoing demonstrations. Thus, law enforcement should carry out their duties within the restrictive scope of international human rights law by observing four main principles: Principle of legality: all action should be based on provisions of the law; Principle of necessity: police should not affect or restrict human rights more than is necessary; Principle of proportionality: police should not affect human rights in a way that is disproportionate to their aim of maintaining law and order; Principle of accountability: those carrying out the action should be fully accountable to all relevant levels (the judiciary, the public, the government and the internal chain of command). Universal adoption of these principles would require comprehensive training of police officials regarding the use of force. Providing this training is necessary to mould the mentality of law enforcement agencies in a way that accords utmost respect to basic human rights and the dignity of individuals. Moreover, states’ strict monitoring of police and punishment of excessive force will act as a powerful reminder for the police force in general that there are consequences for their illegal actions. Thus, nations have a duty to establish the legal and administrative framework defining the circumstances in which the use of force may be allowed in accordance with international human rights standards. Such practical guidance would enable law enforcement to carry out its duties to governed persons and to the state without violating human rights, and perhaps even to the unequivocal rejection of ill-treatment by police officers themselves. Conclusion Police who take it upon themselves to enforce the law in a violent and discriminatory manner undermine the very foundation of the rule of law. Any force used must be no greater than what is ‘absolutely necessary’ to achieve a legitimate aim. Orders and procedures that clearly establish what is expected of the individual law enforcement official are paramount in ensuring that law enforcement is always carried out in full compliance with international human rights law. In the Case of Nachova and Others v. Bulgaria, the European Court of Human Rights (ECtHR) held, “potentially deadly force cannot be considered as ‘absolutely necessary’ where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence.” The murders of George Floyd, Jacob Blake, and Breonna Taylor among others in the United States are perfect examples of who the ECtHR sought to protect in its Nachova holding. The use of unnecessary physical force diminishes human dignity, an essential aspect of human rights. In addition to states being legally bound by human rights treaties upon ratification, most other human rights standards contained in General Assembly Resolutions take the form of customary international law. Such a context mandates that appropriate measures be taken to properly educate police officers regarding the correct use of force. The sooner that states recognize and act upon that mandate, the closer they will be to reconciling the disparity between policy brutality and human rights. Author Akshita Tiwary is a third-year law student at Government Law College, Mumbai.

Ministerial Roundtable: 21st Century Global Investment Policy Making by UNCTAD Article by Parth Tyagi and Achyutam Bhatnagar, Since the start of the novel coronavirus (COVID-19) pandemic, global investment levels have seen a significant decline. Estimates from late March by the International Monetary Fund (IMF) revealed that investors had removed $83 billion from developing countries since the beginning of the COVID-19 crisis—the largest capital outflow ever recorded. Similarly, the UN Conference on Trade and Development (UNCTAD) noted that the global Foreign Direct Investment (FDI) flows are likely to contract between 30 percent to 40 percent during 2020-21. The projected decrease in foreign investment will be coupled with an increase in skepticism by investors across the globe, who might want special assurance that their investments will be protected from arbitrary state actions (under the ruse of emergency), in case they seek to carry forward with an investment plan. Also, a number of investors will likely resort to micro-investments, which are investments worth less than $5 million. These shifts call for a better investment protection mechanism, particularly for micro-investors, from tribunals operating under different institutional rules, so as to regain investors’ trust. The scope of this blog is confined only to possible improvements in the protection mechanism for micro-investors under the International Centre for Settlement of Investment Disputes (ICSID/Centre). What Constitutes an Investment Under the ICSID? ICSID was developed as an instrument of international policy for the promotion of investments and economic development. The jurisdiction of the ICSID depends upon the meaning of the word ‘investment’ according to Article 25 of the ICSID Convention. The ICSID itself has not defined what constitutes ‘investment’ under Article 25, as it does not mention the minimum threshold at which cash flow is considered an investment. To understand what constitutes an investment, ICSID Tribunals have employed the Salini test, which provides a four-factor approach to identifying an investment: (1) the contribution of an investment in the host state; (2) the duration of the investment; (3) an assumption of risk following the investment; and (4) the “contribution of the investment to the economic development of the host state.” Although the fourth factor promotes the ideological foundation of the ICSID, which includes the promotion of a cooperative state approach to economic development, it bars micro-investment disputes from coming under the ICISD’s jurisdiction. Since 2001, with only a few exceptions, most ICSID Tribunals applied the Salini test blindly and strictly when determining whether a dispute arose out of an investment, irrespective of the Vienna Convention. The ICSID Tribunal offered a helpful solution to this potential inconsistency in Ceskoslovenska v. Slovak that should be taken seriously today. How has the ICSID dealt with Micro-Investment Disputes? Since the adoption of the Salini test, micro-investment cases have been bereaved of ICSID’s jurisdiction, due to their inability to satisfy the ‘Contribution of the Investment to the economic development of the host state’ criterion of the Salini test. The following are examples of relevant micro-investment cases before the ICSID: Mitchell v. The Democratic Republic of the Congo Mitchell was one of the first ICSID cases in which the Tribunal applied a strict form of the Salini test to determine whether a flow of money constituted an investment or not. Mitchell, a U.S. citizen, started a small law firm in the Congo. The law firm was later taken over by the government authorities and closed for eight months. To recover the losses he suffered, Mitchell filed a case before the ICSID under the appropriate Bilateral Investment Treaty (BIT). The Tribunal’s initial award favored Mitchell. However, the decision was later annulled by the Ad Hoc Committee. Because Mitchell’s economic contribution could not satisfy the fourth factor of the Salini test, the Ad Hoc Committee determined that Mitchell had made an insignificant investment in the Congo. It held that the law firm was not readily recognizable as an ‘investment’ but instead as a somewhat uncommon operation from an investment standpoint. Malaysian Historical Salvors v. The Government of Malaysia This case was among the few in which the ICSID rejected the strict application of the Salini test by emphasising the importance of doing away with its fourth factor. In this case, the Malaysian Government entered into an agreement with Salvors, a marine salvage company, to search a shipload that sank in 1817. In 1995, the Claimant brought forward the dispute concerning remuneration for the services offered. The matter was taken up to the ICSID, wherein the initial award was granted in favor of Malaysia. The Tribunal concluded that the size of the contribution made by Salvors was not significant and did not lead to any contribution to the economic development of the state. However, the Ad Hoc Committee, understanding micro-investors’ need for recognition by the ICSID, annulled the Tribunal’s award. The Committee noted that the Tribunal’s decision wrongly excluded small contributions from the ICSID’s jurisdiction. It further observed that the Tribunal’s approach ran counter to the decision of the drafters of the ICSID Convention to reject a monetary floor for the amount of an investment. Changing the Contours of the Salini Test During COVID-19 Assuming that the changing times call for changing norms, the ICSID must do away with the fourth prong of the Salini test, at least during the pandemic. Since its inception, the Salini test has been accepted as a valid means of identifying investment across the globe, with the ICSID applying the test strictly in a majority of the cases before it. Not only will micro-investments dominate the foreign investment landscape during the pandemic, but also, the ICSID has historically found micro-investors to make only insignificant contributions to the economic development of their respective host states. If the fourth factor of the Salini test is upheld, then micro-investors will have no redressal mechanism, which in turn will reduce the inflow of money into a state. Furthermore, inaction in this regard might lead to a conscious abuse of the investors at the hand of the host state under the guise of emergency. According to Hogan Lovells’ April 2020 report, COVID-19: will State measures give rise to a new set of investment claims?, such instances have already been reported in Europe and China. States have expropriated private supplies of protective equipment for use in state-run hospitals or permitted the government seizure of private hotels and hospitals to house patients. As stated in the report, “the amount of compensation provided for such seizures, if any, has varied significantly between countries.” The ICSID should be flexible as it considers what defines an investment. According to a UNCTAD study, the drafters of the ICSID Convention chose not to include a precise definition, in part “to enable the Convention to accommodate both traditional types of investment, in the form of capital contributions, and new types of investment, including service contracts and transfers of technology, which might change with time.” This legislative history explicitly shows the drafters’ intent to leave the meaning of ‘investment’ to change over time. The exclusion of contemporary micro-investors from the ICSID’s jurisdiction would undermine the ICSID’s foundational principles, which call for the “availability of facilities for international arbitration to Contracting States and nationals of other Contracting States.” Again, the ICSID was developed as an instrument of international policy for the promotion of investments and of economic development. At least while the pandemic lasts, the ICSID Tribunal needs to adopt a more inclusive formula for classifying a transaction as an investment. The decision of the Tribunal in Ceskoslovenska v. Slovak might be the most appropriate one to adopt for investment disputes arising during the period of the COVID-19 pandemic. The Tribunal noted that a non-investment transaction may be treated as an investment for the purposes of the ICSID Convention if it contributes to the economic development of a ‘contracting state’. This criterion directly contradicts the fourth factor of the Salini test in that it expands the category of transactions that ‘contribute to the economic development of the host state in order to be considered as an investment’ to include “international transaction[s] which contribute[] to cooperation designed to promote the economic development of a Contracting State.” Given the increased likelihood of less and smaller investment outflows dominating the global landscape, the Tribunal’s approach in Ceskoslovenska v. Slovak seems more plausible. The Ceskoslovenska approach would not only simplify jurisdictional requirements under the ICSID, but it would also encourage individual or small investors to carry out international investment transactions. Authors Parth Tyagi and Achyutam Bhatnagar are fourth year students at National Law Institute University, Bhopal and National Law University, Orissa, respectively.

The International Court of Justice in The Hague by R. Boed Article by Adrika Bisen, Many have filed petitions in various national courts, seeking sanctions on and damages from China for the spread of COVID-19. One such petition was filed in the US District Court of Missouri, claiming that China withheld crucial information regarding the spread of COVID-19 which in turn resulted in the loss of lives and irreparable damage worldwide. Adjudication of claims attributing fault to foreign nations pose the crucial question: are national courts empowered to hear petitions against another state? Before answering this, we must ascertain the extent to which a nation-state like China, for example, is protected by the doctrine of sovereign immunity. The world’s evolving approach to sovereign immunity renders unclear whether sovereign immunity is absolute or whether it ought to be narrower. The Evolution of the Notion of Sovereign Immunity and its Contemporary Form Sovereign immunity corresponds to a state’s territorial integrity or political independence. During interstate relations in the 18th century, the doctrine of sovereign immunity was dismissed as a legal concept having a limited scope. However, legal scholars continued to identify sovereignty as an inherently limited concept. They regarded sovereignty to be a relative principle rather than an absolute one. This account of sovereign immunity is best understood in the context of the 18th and 19th centuries. Then, the limited practical interaction between states occurred predominantly through military cooperation or diplomatic relations. Because matters inevitably touched upon sensitive foreign policy, the states were immune from foreign jurisdiction. The states then preferred to resolve such sensitive matters through diplomacy rather than through adjudication. Today’s geopolitical and international law landscapes are only minutely, if at all, reminiscent of those of the 18th and 19th centuries. The extension of an antiquated principle of absolute sovereign immunity is unwarranted, especially where foreign relations today extend far beyond those of the past. A shift away from the nation-state and towards the individual also transformed the concept of sovereign immunity. Dissenting in McElhinney v. Ireland, Judge Loucaides explained that the law of sovereign immunity: “Originated at a time when individual rights were essentially non-existent and when States needed greater protection from possible harassment through abusive judicial proceedings. The doctrine of State immunity has in modern times been subjected to an increasing number of restrictions, the trend being to reduce its application in view of developments in the field of human rights which strengthen the position of the individual.” In the 18th century, the international community introduced a new political framework called the balance of power. This principle holds that the right of sovereign immunity enjoyed by each state cannot be used to damage the same rights of other states. This limitation was based on the famous natural law principle of “neminem laedere” (general duty of care). Lord Denning’s 1957 speech in Rahimtoola v. H.E.H. The Nizam of Hyderabad reinforced the need for definite limits on a state’s sovereign immunity, claiming that “sovereign immunity should not depend on whether a foreign government is impleaded, directly or indirectly, but rather on the nature of the dispute.” Because sovereign immunity was intended to be a functional concept rather than an absolute one, to call it an unrestricted and absolute concept no longer true, even politically. The Evolution of Normative Hierarchy: Shielding Violations of Human Rights Norms Under the Guise of Sovereign Immunity Sovereign immunity doctrine has been the major factor responsible for the most lamentable state of implementation of human rights norms. The most infamous instance is the case of Jurisdictional Immunities of the State (Germany v. Italy), where the International Court of Justice (ICJ) found that Italy encroached upon international law by denying Germany sovereign immunity from domestic jurisdiction. Germany was accused of infringing humanitarian law and basic human rights. The theory of normative hierarchy evolved over the years to deal with the doctrine’s intrinsic inconsistency. Under this theory, the state’s jurisdictional immunity is not protected when the state violates protected human rights norms that are considered peremptory international law norms, known as jus cogens. Examples of jus cogens include the basic rules of international humanitarian law, the prohibition of torture and genocide, the right to self- determination, and the prohibition of aggression. The theory assumes that, in cases of human rights violations, international law confers immunity upon a state. Indeed, the theory proposes a hierarchy of international legal standards, aiming to reconcile jus cogens and state sovereignty in favor of the former. According to this theory, the principle of sovereign immunity is not considered jus cogens, and thus ranks lower in hierarchy than all jus cogens. The International Law Commission (ILC) provided an illustrative list, wherein it considered the prohibition of crime against humanity as jus cogens. Normative hierarchy theory posits that the preservation of jus cogens norms preempts other principles of international law in order to rectify human rights violations. In his book Enhancing Global Human Rights, R. Falk mentions that the principle of non-intervention does not apply in situations of violation of human rights norms is well-established rule of law. For example, in Nada v. SSEAs, the Swiss Federal Court recognized fundamental human rights as jus cogens norms. Similarly, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) and Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) directs that all states should recognize the non-derogable right of everyone to enjoy the highest standard of health and should take all the possible preventive measures to control and prevent an epidemic, endemic, or pandemic. Sovereign immunity is not a defense to bar the international community’s ability to take legal action against the infringement of human rights. An illustrative case is the prosecution of the Soviet Union within the Conference on Security and Cooperation in Europe. There, the Soviet Union quit claiming exclusive jurisdiction and engaged in a meaningful conversation about the issues at hand in the Belgrade conference. The Role of Sovereign Immunity Today The idea of sovereign immunity is not static. In more recent years, there has been a development away from states having absolute immunity and towards adopting the doctrine of limited sovereign immunity. In the Corfu Case (1949), the ICJ held that no state would knowingly allow its territory to be used for acts injuring the rights of other nation-states. Applying the Corfu principle of international law to the current situation, the World Health Organization’s (WHO) International Health Regulations are binding during the international spread of a disease. The regulations obligate a country in which an outbreak takes place to make timely notification and share accurate information. The State Party shall continue to communicate to the WHO timely, accurate, and sufficiently detailed public health information available to it on the notified event, China was bound by international obligations to report accurately to the (WHO) about the situation, but failed to do so. The ICJ’s “sufficiently direct and certain causal nexus” test as set forth in the Bosnian Genocide Case should be applied to determine if there is a causal link in the damage suffered by the individuals and injured states and the violation of international law norms by China. Under that test, injured states must establish that the pandemic could have been averted had China complied with the International law and human rights norms and taken preventive measures. China’s inaction in the wake of an impending global pandemic clearly demonstrates China’s negligence and even disregard of jus cogens norms. In the Corfu Case, a mere failure to discharge a positive duty was considered enough to assess damages against the offender state and considered a form of negligence. Similarly, China declined offers from the WHO to assist them in investigating the coronavirus outbreak. Such inaction and negligence on behalf of nation-states disregards the non-derogable nature of jus cogens norms like ‘the prohibition of crime against humanity’. The principle of sovereign immunity protects states to the extent that their actions collectively benefit member nations and individuals. The moment a state pursues actions detrimental to other states or stands in clear violation of fundamental human rights norms, sovereign immunity ends. This holds true even if such an action is protected by domestic immunity laws or is inconsistent with international law norms. COVID-19’s threat to Humankind urgently demands a restrictive approach to sovereign immunity. Author Adrika Bisen is a law student at Gujarat National Law University, Gandhinagar with a keen interest in International Law and Policy.

Photo credit: Jean-Philippe KSIAZEK /AFP via Getty Images) Article by Enio Ibro, “We all do better when we work together. Our differences do matter, but our common humanity matters more.” ― Bill Clinton Introduction Despite 21 years have passed since the war in Kosovo ended, many families still mourn their missing relatives. What makes it even more painful, is the fact that although more than 500.000 Kosovars were displaced from their territory, very few responsible persons have been prosecuted and convicted for war crimes and those against humanity. For many years, the investigations have been conducted only from the international authorities. Efforts from the government and NGOs to implement transitional justice In 2012, Kosovo decided to take the situation under control. The government’s mission was to indict the persons responsible for the human rights violations happened in 1998 and 1999. However, different obstacles have undermined the progress of this process. In the recent years, Kosovo’s membership to Interpol was refused thrice, making it impossible for them to target the suspected persons living abroad and bringing them to justice. Yet, the government has been determined to go forward and has enacted new laws to help the creation of new commissions and institutes to investigate on these crimes. The Inter-Ministerial Working Group on Dealing with the Past and Reconciliation (IMWG DwPR) was settled in June 2012. Its duties were to implement the rule of law according to the international human right law, to provide remedies to the victims and to promote peace and reconciliation. The European Union, including the UN, have provided financial aid and technical support to this new project. However, since its inception 8 years ago, the IMWG DwPR hasn’t been able to go through its objectives other than just setting a national strategy. A research study from authors Nora Ahmetaj and Thomas Unger, pointed out some of the challenges that prevented it from accomplishing its goals. The absence of the funding from the government, which relied only on the foreign donations and the absence of a parliamentary supervision, were among the negative factors that impacted the progress. As of today, IMWG DwPR cannot be considered an effective instrument to implement the transitional justice. Besides the IMWG DwPR, other institutions and organizations have been formed to further investigate on human rights violations yet undiscovered or prosecuted. “Kosovo War Crimes Research Institute” is among the new institutes dealing with these investigations. Its mandate comprises the collection and processing of data regarding the humanitarian crimes. However, the lack of staff and funding have contributed to make the institute inactive and unable to publish any concrete results. Different NGOs like “The Humanitarian Law Centre”, “‘Mother Theresa’ Humanitarian and Charitable Society” and “Kosovo Rehabilitation Center for Torture Victims” have worked together to gather and document the atrocities and human rights violations happened during the war. Over 20 organizations have also joined to form the “Coordinating Council of the Association of Families of Missing Persons in Kosovo.” Some of the following governmental instruments have also been established in order to implement the judicial measures towards transitional justice: The Department of Martyrs Families and War Invalids; The National Council for Survivors of Sexual Violence During the War; The Government Commission for the Recognition and Verification of Victims of Sexual Violence During the Kosovo Liberation War; The Government Commission on Missing Persons; The Ministry for Communities and Repatriation. All of them have collaborated by reviewing and analyzing thousands of applications. Today, more than 6615 persons have returned their homes and over than 1000 houses have been rebuilt. Conclusion Resolving matters which comprise a significant amount of violence and sufferance is hard, delicate and requires a lot of time. For instance, it took the International Criminal Tribunal for the Former Yugoslavia (ICTY) more than 10 years to convict 5 former high-ranking Serbian officials involved in the war crime atrocities. The ICTY has been dissolved from 2017 but it left a strong legacy of war crimes justice. Nevertheless, today, achieving transitional justice is more important than ever and indeed a necessary step towards the goal of promoting peace and stability between Kosovo and Serbia. Both countries should put joint efforts to put the perpetrators of human rights violations to justice. For the victims to finally rest in peace, it is indispensable for the “old feuds” to end and the war chapter to close once and for all. Short Biography The author is an LL.M candidate at UC Berkeley School of Law. He lectures at the Faculty of Law, University of Tirana in Albania and his main areas of focus are in International Law, Criminal Law and Human Rights Law.

Article by Amreen Taneja Berkeley Law LLM Class of 2020, IMPLICATIONS OF PANDEMICS Infectious diseases count as one of the top ten leading causes of death worldwide. They have plagued mankind throughout history and have played a major role in shaping the society as we see it today. The 1918 Spanish flu pandemic swept across the world killing more than 50 million people and is known to have contributed in ending World War I. Pandemics and epidemics along with posing a great health crisis for mankind also have several socio-economic impacts. In today’s hyper globalised world where nearly, every product is manufactured and sold through an international supply chain, it has become increasingly difficult for countries to remain insulated from the adverse impacts of such infectious diseases. Pandemics are a sour reminder of human vulnerability. The SARS CoV which is known to have emerged in China in 2002 due to exposure with infected palm civets affected almost 8000 people across the globe and adversely impacted the South East Asian economies leading to an economic loss of $18 billion. The MERS-CoV found to have been transmitted through camels was another form of corona virus which plagued the middle east in 2013 bringing in its clasp,regions of United Arab Emirates, Jordan, Qatar, Iran, Oman, Yemen, Lebanon Jordan as well as South Korea and Canada adversely impacting their travel related service sectors as well as foreign trade. The economic impact of pandemics may not be long lasting if public health containment procedures and coordinated responses are ensured to mitigate spread of the infecting pathogen.It is nevertheless an overwhelming realisation, that these diseases are only a short plane ride away from threatening another nation’s regional and economic stability. A pandemic therefore has the potential to not only disrupt nations but also upset the global economy by altering the course of supply and demand. The lockdowns of businesses, restrictive social interactions as well as the discord between nations for allocation and distribution of antiviral drugs and vaccines can lead to disturbances in diplomatic and trade relations between States. The COVID 19 virus recorded to be one of the biggest pandemics of the 21st century has led nations into a similar dilemma. The UN Department of Economic and Social Affairs has declared the virus responsible for undermining global supply chains and foreign trade potentially leading to a global financial slump of 0.9% in 2020 contrary to the previously projected rise of 2.5%. This estimate is directly linked to the expected 13% to 32% decline in world trade in the present economic year. COVID 19 CRISIS Disruption of normal economic activity caused due to the world being in a virtual lockdown will result in massive blows to services related trade given the imposition of stringent travel restrictions. Such strains on the economy force national leaders to flagrantly prioritise the urgent demands of their nations which often lead to a conflict of interests between them. The recent deflecting of Chinese shipments of protective face masks by the US meant for export to Canada and Germany serve as an example of such friction. Such actions prompt imposition of retaliatory measures by affected countries in the form of tariff and non-tariff barriers. Another potential political challenge that the world will face is with respect to free trade of the upcoming vaccine for novel COVID 19. The existence of a vaccine itself does not ensure the eradication of this disease. Like all drugs, the COVID 19 vaccine which is currently under development by about 80 pharmaceutical giants of the world will be protected by a thicket of patents. Thus, the pricing of these drugs and vaccines which have been developed by spending billions of dollars in research will ensure that these will not come cheap. These drugs which will also include profit margins for pharma. companies will only be available to those who can afford to pay the price thereby empowering pharmaceutical giants to essentially decide who will live and who will die. In addition to drugs, the recent conflict between Canada and an American company 3M, over protective gear like N95 respiratory masks which are also subject to patent protection has caused a massive stir. Thus, 3M which holds over 400 patents for pulmonary protection devices, along with many such other drug companies, has been called upon to make these survival tools accessible to all. Some of the most promising treatments for COVID 19 such as Remdeivir used for treating Ebola, Favipiravir developed for treating influenza and the HIV treatment drug Kaletra are also protected by patents. All of this has made many countries take preemptive measures to ensure that they do not fall prey to the legal monopolies of the pharmaceutical industry. COMPULSORY LICENCING DEVELOPMENTS The mounting economic and political pressures caused by the health crisis has made countries reconsider their stance on the contentious compulsory licensing provision of Trade Related Aspects of Intellectual property Rights (TRIPS). Article 31 of the TRIPS Agreement of WTO allows for member state governments or third parties authorized by such governments to engage in ‘other use’ of the subject matter of a patent without the authorization of the right holders. This exception enables governments to invoke the provision during situations of extreme urgency such as a public health crisis like COVID 19. Many countries are now working on streamlining their compulsory licensing laws while others are swiftly introducing them into their legal systems. The Republic of Chile on March 17, 2020 passed a resolution for granting of non-voluntary licenses to facilitate access to medicines and technologies instrumental in the diagnoses and treatment of COVID 19.France, on March 23, 2020 introduced an article L.3131-15 in their public health code allowing the Prime minister to permit launch of generic products on French territory before the expiry of a duly registered patent. Many countries which already had such provisions in place are now seeking to strengthen their laws in order to ensure swift and seamless distribution of medicines. Germany, home to some of world’s largest pharmaceutical giants, recently made a new addition to its legislation: ‘Prevention and Control of Infectious Diseases in Humans Act’ allowing the Federal Ministry of Health greater powers in times of an epidemic. Israel on March 18, 2020 debuted its first ever compulsory license since the provision’s inception in the country’s patent law in 1967, becoming the first and so far the only nation to issue a COVID 19 related Compulsory license for importing a generic version of Kaletra from India. SUGGESTIONS FOR THE ROAD AHEAD These individual efforts may be effective in domestic restoration but can only go so far in ensuring a sustainable solution to these increasingly recurring outbreaks. Thus, a structured and system driven approach must be adopted. This can be done through a common research fund created specifically for resources devoted to R&D for infectious diseases wherein all possible testing methods, vaccines and medicines can be developed and offered freely for production to all member states. This common pool can be created through a joint program between the World Health Organisation and World Trade Organisation whose members can fund this project as a health investment towards a secure future for the entire world. This permanent fund could also have a provision for outright purchase of such technologies from rights holders who may have already developed effective testing kits, treatment protocols or vaccines for diseases which have the potential of turning into pandemics. This two-part funding system will not only guarantee a streamlined channel of implementation but also satisfy the crucial need of fostering and encouraging innovation by respecting the rights of intellectual property holders. Such a system could play the imperative role of adequately compensating the losses incurred by a rights holder on issuance of a compulsory license by any country on an independent basis in times of such pandemics. This mechanism can be instrumental in ensuring that the original mandate of TRIPS as laid down under Article 7 of Agreement which states that ‘protection of intellectual property rights should be for the purpose of promoting innovation in a manner conducive to social and economic welfare, and to ensure a balance of rights and obligations’ is fulfilled. This would also prevent potential conflict of interest that may arise by use of Article 73(b) of TRIPS Agreement which calls for suspension of enforcement of any intellectual property rights including patents, designs and trade secrets which is being advocated by certain interest groups. Member states can provide such legitimate exceptions to rights conferred under Article 30 of the TRIPS Agreement which allows “limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent.” This provision could be used to allow such a fund to acquire any such successful technology and make it available for global access to all member countries while protecting the legitimate interests of the rights holder thereby striking the critical balance between public and commercial good.

Article by Amreen Taneja, The beginning of this year marked a potential end to the two-year long trade war between US and China dawning a new beacon of hope for collaborative trade relations. The two trading giants signed a trade agreement that offers increased market access to US exporters, reduced tariff rates for Chinese imports as well as the promise for a strengthened intellectual property law framework. This deal calls for China to boost American purchases of goods and services by at least $200 billion by 2022 to shadow the $185 Billion it spent on US goods and service imports in 2017. Beijing is committed to make several significant improvements to its agricultural strategy by getting rid of certain safety regulations that were used by Chinese officials to obstruct a range of American agricultural products. Plans on easing license restrictions and registration regulations viewed by US as trade barriers have also been approved by China. These reforms would benefit several US industries ranging from meat, poultry and fisheries to biotech. In exchange, The US has promised to halve its tariff rates on the $120 billion worth of Chinese goods enforced on September 1 2019 to 7.5%. Other such tariff reductions by the US have been held off till the ratification of the phase 2 Agreement. One of the cornerstones of this agreement lies in the intellectual property protection action plan which ensures ‘adequate and effective protection and enforcement of Intellectual property rights’ in order to ensure fair and equitable market access for both parties. The deal provides for stronger Chinese legal protections for trade secrets, patents, copyrights and trademarks by increasing criminal and civil penalties to tackle piracy, counterfeit products and online infringements. The agreement also reiterates China's commitments to fulfil existing obligations to eliminate any pressure on foreign companies to transfer technology to Chinese firms as a condition of market access or licensing and to remove any government incentives for such transfers. China was required to present this action plan to strengthen intellectual property protection within 30 working days of the agreement coming into effect on February 15th 2020. However, the current coronavirus crisis appears to have made it difficult for China to deliver on this primary component of the deal. In its defense, China is claimed to argue the position that they are not in fact late, as the number of working days in the country was significantly decreased due to the lockdowns. The Covid-19 outbreak known to have started in Wuhan has now spread across the world and has threatened the fragile balance of economic and political ties between US and China. With the US growing increasingly skeptical of Chinese intentions, CNIPA has attempted to iron out the wrinkles by releasing its Opinions on strengthening the protection of IP Promotion plan 2020-2021 on April 20th. This Promotion Plan whose level of compliance with the Phase 1 agreement is yet to be determined still goes a long way in restoring some faith in the possibility of a synergistic trade relation between the two trading blocs.

Article by Najia Humayun I. Introduction: In Italy, people with COVID-19 (coronavirus) symptoms who refuse to self-isolate could be charged with causing injury, a 6-36 month sentence. People who end up passing the virus to someone who dies could be charged with intentional murder, a 21-year sentence. With the rise of coronavirus in America, similar policies will surface here. For example, in Chicago, people with symptoms who violate the shelter in place order could be fined $100 to $500. I interviewed Berkeley Law professor Andrea Roth on the potential use of criminalization to enforce shelter in place orders in the U.S. I found that hypothetical intentional murder charges for passing coronavirus in the U.S. are unlikely. Nevertheless, the dangers of criminalization as a means of enforcing shelter in place orders in the U.S. are alarming, due to the nature of sentencing and history of racism in our criminal justice system. Therefore, the U.S. should turn to economic justice measures, including universal basic income and rent forgiveness, as its primary method to ensure the effectiveness of shelter in place orders. II. Hypothetical murder charges for spreading coronavirus in the U.S.: a. Intentional murder Professor Andrea Roth predicts that intentional murder charges for passing coronavirus in violation of a shelter in place order would be difficult to maintain under U.S. criminal law. She analogized to the early days of the AIDS crisis, when the only people prosecuted for intentional murder were those with an explicit statement indicating intent to spread AIDS, or purposefully lying about their status. Such statements were sufficient as circumstantial evidence to infer intent to kill. Merely exposing people to AIDS without sufficient evidence of intent to kill would not lead to intentional murder charges. State v. Smallwood, a 1996 case where an HIV-positive rapist’s status alone was insufficient to infer an intent to kill, is an example of this. Likewise, merely exposing people to coronavirus without evidence corroborating intent to kill would not lead to intentional murder charges. b. Unintentional murder Unintentional murder charges such as depraved heart murder, negligent homicide, and involuntary manslaughter would be more possible, Professor Roth explains. Completely unjustified risk can lead to depraved heart murder charges, regardless of the level of risk. If unjustified, the estimated 3.4% fatality rate of coronavirus could be sufficient risk for depraved heart murder charges. Preexisting conditions which make individuals more vulnerable to coronavirus would likely not create a causation issue, as two causes can work together without breaking the chain of causation. c. Reckless endangerment Professor Roth predicts that reckless endangerment charges are more likely than murder charges for exposing people to coronavirus. Recklessness requires only subjective awareness towards the resulting crime, which would be easy to prove given the high level of media saturation surrounding the importance of self-isolation. This reasoning on recklessness being easy to prove could also apply to some of the unintentional murder charges listed above, particularly, involuntary manslaughter. However, reckless endangerment charges would be even more likely to succeed than unintentional murder charges, because reckless endangerment only requires reckless conduct that is likely to produce death or grievous bodily harm. III. The dangers of criminalization as a means of enforcing shelter in place in the U.S.: A carceral logic, or punishment mindset, dominates many U.S. government functions­—even those far removed from prisons. It is not surprising, then, to consider that the U.S. may turn to criminalization as a means of enforcing shelter in place orders. Other countries, such as Italy, have already done the same. The U.S. criminal justice system boasts draconian sentencing laws and a blatant history of racism. Therefore, to avoid perpetuating injustice, the U.S. must precede any attempts at using criminalization to enforce shelter in place orders with economic justice measures to do so. a. What criminalization looks like in the U.S: Nature of sentencing: The U.S. makes up 5% of the world’s population, but has 25% of the world’s prison population. One of the main drivers of mass incarceration in the U.S. is unfair sentencing laws. Mandatory minimums, for example, have increased prosecutorial discretion, allowing prosecutors to charge defendants with crimes triggering mandatory minimums. Prosecutors can thereby coerce defendants to admitting guilt, even falsely. Three-strike laws require judges to issue life-sentences to defendants after a third crime, even if all three crimes were minor offenses. Truth-in-sentencing laws eliminate parole opportunities, requiring many prisoners to serve upwards of 75% of their sentence. If violating a shelter in place order became a criminal offense, those charged with it would be subject to these draconian sentencing laws. The individuals most likely to violate a shelter in place order would be those working in service industries, or other hourly workers unable to survive at home without income from continuing their work. Though criminalization of violating a shelter in place order may serve as a last resort, the government must first ensure that no individual is obligated to leave their home in order to survive. To do so, it must implement measures of economic justice including, most importantly, a permanent, survivable universal basic income. b. What criminalization looks like in the U.S: History of racism: Racist institutions in the U.S. have never been abolished. Rather, they have simply transformed. As explained by Angela Davis in her book Are Prisons Obsolete, slavery, lynching, segregation, and now prisons, are racist institutions which have passed each other the mantle of legitimizing the oppression of African Americans and other people of color in the U.S. By using criminalization as the primary means of enforcing shelter in place orders, the government will inevitably end up targeting people of color and throwing them to the whims of the criminal justice system. In order to enforce shelter in place orders without perpetuating this racist history, criminalization can only function in the background of effective economic justice measures, including a universal basic income, rent freezes, and other forms of welfare. By prioritizing economic justice and allowing criminalization to operate in the background, we can take a small step towards preventing the further expansion of prison populations, and in that way promoting a system “where the prison no longer serves as our major anchor.” For example, Professor Roth described the difference between the opioid crisis which has mostly affected white individuals being treated as public health crisis, and the crack epidemic of the 80s which mostly affected black individuals being treated as a criminal justice issue. She described the value of viewing criminalization as a last resort means of controlling people’s behavior, especially when there is a public health crisis. IV. Comparative Perspective The U.S. criminal justice system is particularly ill-suited to use criminalization as a method to enforce shelter-in-place orders, for the reasons outlined above. This conclusion is corroborated by comparisons of U.S. criminal legal system to other criminal legal systems. Scholars have suggested that the continental European criminal legal system does a better job at being merciful to the convicted criminal. Though the U.S. system does a better job at protecting the innocent from conviction in the first place, they state that it would be better off emulating the “more humane approach” of the continental model, especially by “showing more concern for the guilty.” The Italian system in particular might offer more protections to defendants than the U.S. system does. V. Conclusion Now is not the time to question the authority of the government to take control to prevent the spread of coronavirus. But it is the time to question what methods of control the government should prioritize to do so. By prioritizing economic justice measures and leaving criminalization to operate in the background, the U.S. government can ensure the effectiveness of coronavirus shelter in place orders without perpetuating the injustices of our criminal justice system in a new context. Many may disagree and believe that criminalization should be the primary means of enforcing shelter in place orders, particularly for deterrence purposes. However, I urge any such individuals to ask themselves: Is your goal decreasing the spread of coronavirus? If yes, do you believe that sending people to crowded prisons with minimal health standards will do so? The answer to this question is almost certainly no.

Article by Bhredipta Socarana, CIPP/E (LLM ‘20) Introduction The outbreak of the coronavirus (COVID-19) that first infected the people of Wuhan, China, later spread to the rest of the world. In response to this, the World Health Organization (WHO) declared the outbreak as “pandemic” and called on State leaders to take actions. There are a number of actions carried out by these States, both at a national level, and also at a regional level. These actions, however, raise issues on the rights to privacy. The purpose of this article is to discuss some of the implications that these measures have for the rights to privacy. It calls for global privacy governance that balances the rights to privacy on the one hand and the State’s interest in protecting public health on the other hand. Domestic and cross-border implications The sharing of personal information related to combating COVID-19 implicates the right to privacy arises on two levels: internally between individuals and the use of their personal information by their States through individuals’ health screening and tracking, and externally between individuals and foreign States, on the potential cross-border personal health information case resulted from global mobility. Internally, in Asia, efforts to mitigate further increases of COVID-19 cases by mass monitoring and tracking of individual’s health have been widely implemented such as in South Korea and Singapore. Through certain apps that are required to be installed by individuals, the governments are tracking the geographic location of individuals thus exposing their sensitive information to government agencies of these States. In Europe, countries are considering similar measures, while the US has not imposed similar measures yet though it is considering it. Additionally, personal health information is also shared between medical researchers to further the development of vaccines. Externally, the need to share this information became more pressing as more and more people seek to return home before potential border closures. A sharing personal health information between departure States and arrival States will help the arrival State identify risks that may be posed by the travelers. Unfortunately, global data standards have not been developed to address this. Granted, the right to privacy is often carved out by the exceptions to protect public health at domestic level laws, which must be applied in ways that are proportionate and accountable. Similar approach at the global level of personal health information sharing activities must be taken. However, in the absence of a global policy on the right to information privacy, the needs to have clear requirements and exceptions to sharing of personal health information become more pressing. The needs of global information privacy governance Qualifying the right to privacy in the middle of a pandemic may sound acceptable. Admittedly, even various international treaties grant public health concern as one of major exemptions in the fulfillment of obligation under international law. The International Health Regulations (IHR), in particular, is the primary international legal source relating to public health But there are qualifications to these exceptions too. For example, Article 45 of the IHR expects respect by States in relation to the privacy of its citizens, in accordance with the States’ national laws. However, the absence of clear global governance on privacy creates uncertainties in protecting the right to privacy. The current scale of the outbreak and the potential needs of sharing personal health information between countries trigger the need for States to cooperate on an international level. The call for global privacy governance is not novel as it has been discussed in numerous international discussions. The Global Privacy Assembly, participated by a number of privacy authorities around the world sets an example of a unified front for global privacy governance, although not every country participated. Accordingly, the current outbreak and the States' responses add an additional argument as to why global privacy governance is necessary. Such a global information privacy governance should address the need to lay down multilateral global personal data transfer rules to address the evident weaknesses of bilateral arrangements that currently exist. In this way, there will be more legal certainty on what can be expected from States if, for example, personal information is shared with other States. Public in general, including medical researchers, will also be able to do more rigorous damage control assessments with a view to mitigate potential privacy violations. Lastly, States will be held accountable for their use of personal information as the public is allowed to scrutinize the States’ use of their personal information or by third parties contracted by States. Conclusion As Yuval Harari has said in his most recent publication “The World After Coronavirus”, global cooperation is needed in curing the current pandemic. Countries need to work hand-in-hand to solve the problems that COVID-19 and future outbreaks pose, and not to create other problems by not co-operating. This approach could also be applied to protection of information privacy, whether it’s in respect of personal health information or not, which at present remains limited as a matter of domestic concern. Global information privacy governance may not be a complete solution, but at least it may prevent further wounds to the right to information privacy and cure some of the symptoms of unlawful exploitations of the exceptions to that right.

Article by Jonathan Abrams, As thousands of Syrian refugees desperately tried to storm barbed wire fences at the Turkish-Greek border, Greek security forces beat them back, shot rubber bullets and threw tear gas at them while an army truck blared a message in Arabic: the border is closed. Greek forces also fired at dinghies carrying refugees off the coast of the island of Lesbos. All told, Greece has stopped at least 32,000 refugees from entering its territory since February 29, when Turkey’s President Recep Tayyip Erdogan declared that Turkey would no longer prevent refugees from leaving Turkey for Europe. By ending this policy, Erdogan reneged on Turkey’s 2016 pact with the EU under which the EU gave Turkey €6.7 billion in exchange for keeping 3.7 million Syrian refugees within its borders. Erdogan claimed that Turkey could not handle the recent surge in Syrian refugees fleeing violence in Syria into Turkish territory. The reversal also comes on the heels of a serious military defeat in the Idlib region of northwest Syria suffered by Turkish-backed rebels against the forces of Syrian President Bashar al Assad, a defeat that will make it harder for Turkey to establish a safe zone to resettle Syrian refugees. But Turkey’s unilateral rescission of the 2016 agreement caters to a Turkish public that strongly opposes the continued presence of the refugees in Turkey. A May 2018 poll commissioned by the Center for American Progress revealed that nearly 80 percent of Turks want the refugees to return to Syria, whereas only 13 percent support the current situation. According to the UN High Commissioner for Refugees, by expelling these refugees from its borders without examining their cases, Greece is acting in violation of the 1951 Geneva Convention. The Geneva Convention mandates that states “shall not expel a refugee lawfully in their territory save on grounds of national security or public order.” The Convention also mandates that “except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself.” Greece has invoked Article 78(3) of the Treaty of the Functioning of the EU (TFEU) to defend its behavior. Article 78(3) permits EU Member States to adopt provisional measures in response to a sudden influx of third countries nationals. However, it also requires Member State to adopt such measures only after consulting the European Parliament — a protocol that Greece has not followed. Yet Greece’s illegal rejection of Syrian refugees enjoys support from the EU. The head of the European Commission, Ursula von der Leyen, called Greece a “European aspida [shield]” and promised it €700 million for maintaining border security. “This border is not only a Greek border but it is also a European border and I stand here today as a European at your side,” she told reporters near the land border. European Council chief Charles Michel called on Turkey to maintain its end of the 2016 agreement. David McAllister, head of the European Parliament’s Committee on Foreign Affairs, warned against the possibility of another influx of Syrian refugees like in 2015, when European countries took in 1.3 million. The current impasse between Greece and Turkey reflects a broken system for managing the refugees, as well as the failure of the EU to properly implement the 2016 agreement. Turkey’s refugee camps fall well below international standards, while the country disputes that it has received the full €6.7 billion promised by the EU. Greek Prime Minister Kyriakos Mitsotakis, meanwhile, has accused Erdogan of blackmailing Greece and the EU for more funding, specifically for its military campaign in Syria, by threatening to release millions of refugees into Europe. Without Turkey keeping the refugees within its borders, the EU is woefully unprepared for a new influx of immigrants. Nevertheless, until Greece and the broader European community show willingness to face this long-term problem head on — which would mean processing these refugees and integrating them peacefully into their societies — their humanitarian reputation hangs in the balance.

Article by Annabelle Wilmott The United Kingdom is to dramatically overhaul its immigration system. On February 19, 2020, the Home Office released a policy statement outlining the government’s plans for a new points-based immigration system. Set to take effect in 2021, the new system will reduce “reliance on cheap, low-skilled labor,” and seeks to attract “the greatest talents”: “scientists, engineers, academics, and other high-skilled workers.” Migrants will need seventy points to qualify for a visa. To gain the necessary points, applicants must have an offer by an approved sponsor (20 points), a job at the appropriate skill level (20 points), demonstrate that they “can speak English” (10 points), and, in most instances, make more than £25,600 a year (20 points). While the first three qualifications are essential, the salary threshold will be relaxed for people in “specific shortage occupations” or those with a Ph.D. in their field. The new rules will fulfill Prime Minister Boris Johnson’s election promise to end freedom of movement and close its borders to low-skilled EU workers. EU citizens who have been able to move to the UK without any restrictions will now have to meet the same eligibility requirements as everyone else. The system is projected to result in labor shortages in industries that are reliant on low-paid EU labor, including the social care industry, construction, and farming. Moreover, some have speculated that the plan will have its harshest impact on women. As women are four times more likely to leave their jobs to take on the burden of unpaid responsibilities, such as taking care of children or the elderly, the resulting labor shortages could have an unintended consequence of pressuring women in the country to take up more unpaid work. Not surprisingly, big businesses are pushing back on the plan. Thus far, however, it does not appear that the government is yielding. The Home Office explicitly stated that it would “not implement a route for lower-skilled workers.” Rather, employers will have to adapt by prioritizing “staff retention, productivity, and wide investment in technology and automation” in place of reliance on immigration.

Article by Tyler Takemoto, In terms of gender and racial diversity, staff at the executive agencies that enact U.S. foreign policy and national security lag behind the overall demographics of federal public servants. Aside from the empirical benefits of a diversified workforce, a lack of varied perspectives in international and national security policymaking hinders effective strategy and worsens the risk that implicit biases will affect decision making in ways that harm U.S. interests at home and abroad. In a 2016 memorandum, President Obama highlighted the issue of diversity in national security policymaking. The memorandum reflects on a series of efforts throughout the Obama Administration to promote hiring and appointment of diverse candidates to positions in foreign policy, intelligence, and national security. It emphasizes an ongoing diversity gap in the national security and foreign policy establishment and recommends ongoing measures to bring these areas to parity with the rest of federal government. Studies on gender diversity in national security observe an overall improvement in gender parity at agencies like the Department of Defense, Department of State, Central Intelligence Agency, and Department of Homeland Security. In the US, women now make up more than half of graduate students enrolled in international affairs programs. However, much of the progress in representation is concentrated at the entry-level, with men still occupying the vast majority of senior positions. According to a report compiled by New America, women have never made up more than 40% of senior posts in the State Department and 20% in the Department of Defense. This article identifies factors that contribute to the diversity gap in national security and foreign policy. It examines the importance of diversity for public policymaking, considering recent examples of executive agency oversight. It concludes by echoing recommendations for a culture shift in the national security and foreign policy establishment that is inclusive of practitioners who are underrepresented in the field. I. Explaining the diversity gap Why do national security and foreign policy agencies continue to lag behind despite ongoing efforts to promote diverse hiring? In the case of gender equity, women face barriers in promotion to senior public service posts and selection for political campaign staffs: both important avenues to high-ranking positions in the national security and foreign policymaking apparatus. The field of national security is not immune to the widespread culture of workplace gender discrimination and sexual harassment that poses a deep challenge to women’s professional advancement. Moreover, a lack of equitable family leave policies disadvantage pregnant and parenting public servants, lowering retention of women in public agencies. Moreover, senior staff are more likely to mentor junior staff with similar backgrounds, perpetuating existing gender and racial disparities. In addition, military service represents another important entryway to public service in national security and foreign policy. Historically, the U.S. military has served as a vanguard of wider efforts to foster racial inclusion. However, demographic trends in military service reflect ongoing gaps in racial diversity, with robust representation reflective of the racial makeup of the U.S. among active duty enlisted corps, but underrepresentation in the officer corps and especially at the senior leadership level. As in the case of public service, the diversity gap between enlisted active duty corps and senior service members in the military suggests that there are barriers to advancement for diverse and historically underrepresented recruits. Widespread reporting on sexual assault in the military demonstrates a pervasive culture of hostility for women in military service. The Trump Administration’s efforts to narrow the eligibility of immigrants to serve in the U.S. military and to ban transgender people from military service push willing servicemembers out of the ranks, and reduce the pool of prospective recruits. Finally, the national security and foreign policy sectors lose qualified candidates to other employers. To craft relevant, effective policy, the government must attract experts in burgeoning areas of national security and international relations, including emergent fields like cybersecurity. Potential public servants who can meet this need may be choosing other opportunities in the private sector, academia, or civil society not only because these opportunities may be more lucrative, but because the national security establishment has a narrow view of cultural fit. In hiring cyber-operations experts, for example, the U.S. military struggles with cultural biases that may undermine outreach to nontraditional candidates. II. How the diversity gap impacts public policy The diversity gap between policymakers and the U.S. public contributes to policies that diverge from public sentiment and damage national interests. In areas like immigration, trade, and climate, the federal government continues to enact practices at odds with popular opinion, U.S. commitments, and international law. While elected officials and their appointees are chiefly responsible for crafting substantive strategy, staff at national security and foreign policy agencies also play a key role in agenda-setting and implementation. A diversity gap among public servants, particularly at the decision-making level, hinders agencies’ ability to recognize and push back against flaws in proposed executive policies. To illustrate, numerous State Department officials have resigned in the past three years. Explaining their decision, former officials cite concerns with Administration policies, waning budgetary support for development, educational, and human rights projects, and lack of interagency advocacy on the Department’s behalf by successive Secretaries of State. Many of these vacancies remain unfilled, leaving gaps in the Department’s ability to enact effective policy and consult on key matters of international affairs, international law, and human rights. In another case earlier this year, the Trump Administration ousted several officials from the Department of Homeland Security, including then-Homeland Security Secretary Kirstjen Nielsen for challenging a proposed mass-deportation plan. The ousters reportedly stemmed from Department officials’ resistance to immigration policies pushed by White House officials, including the child separation policy that has drawn criticism across the political spectrum for its indefensible cruelty and incompatibility with international law. Both of these cases demonstrate the role that public officials play in regulating executive policymaking and the importance of representation in public service. Public servants may voice their professional opposition to aspects of White House policy, ideally influencing policy formation and implementation. If they are dissatisfied with a final policy, they may choose to resign to express their disapproval. Further, when a critical mass of senior leadership opposes proposed executive policy, there is a greater likelihood that agency officials can push for the White House to change course. For policies like family separation that are widely unpopular among the U.S. public, representation may pose a decisive factor. The Government Accountability Office has identified low workplace retention for women and underrepresented racial groups in the Department of Homeland Security. If the Department’s senior public servants held a range of perspectives more similar to the overall United States, they may have been able to marshal a robust majority to encourage White House policymakers to pursue an alternate approach. In addition, if agencies adequately represent the perspectives and interests of public officials, those officials are more likely to remain in public service, contributing their expertise to the policymaking process. Conversely, when the agencies that enact U.S. national security and foreign policy lack diversity, they have passed measures that undermine civil liberties and minority rights in pursuit of illegitimate goals. The Church Committee investigations, for example, revealed that efforts to create an institutional monoculture in the J. Edgar Hoover-era FBI fueled a series of policies to surveil and harass journalists, political figures, and civil rights activists including Martin Luther King, Jr. throughout the 1960s. More recently, the FBI has opened widely-criticized investigations into so-called “black identity extremists” while simultaneously struggling to prioritize the threat of white supremacist violence in the U.S.. III. Conclusion Diversity is one of the United States’ central features and key advantages in approaching global challenges. With a consensus understanding that varied backgrounds and perspectives make for stronger teams and better decision making, the federal government’s diversity gap in foreign policy and national security represents, at best, a missed opportunity. While executive agencies involved with foreign policy and national security have taken steps to increase outreach to diverse candidates, the gap in representation between the entry level and senior positions shows that an ongoing culture shift is necessary to include diverse perspectives at the policymaking level. The United States can benefit from a public service that better resembles the experience of the nation as a whole. Especially in the national security and foreign policy sectors, public servants that accurately reflect the multifaceted aspects of U.S. national identity are best positioned to enact and advocate for collective national interests at home and abroad.