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Article by Dibya Prakash Behera & Vishal Rajvansh, Introduction The increasing usage of technology, disruptive innovation has become a tool in the hands of the new and emerging market players to grab a market share. A growing body of evidence suggests that Google is manipulating people’s thinking and behavior from the very first character people type into the search box. In 2016, biased search results generated by Google’s search algorithm likely impacted undecided voters in a way that gave at least 2.6 million votes to Hillary Clinton. Such practices when adopted in commercial world gives rise to anti-trust concerns. However, the competition law regime in India has recently found itself in muddled waters in dealing with the market practices involving the extensive use of technologies, especially the usage of search algorithm by Google. Google and Biased Search Algorithm Imperatively, no private company is vested with either the right or the power to manipulate large populations without their knowledge yet data collected since 2016 show that tech giant Google displays content to the American public that is biased in favor on one political party. A recent research shows that if there be no system to keep an eye on Google, the Big Tech will be able to shift upwards of 15 million votes to that candidate it favors with no one knowing and without leaving a paper trail. Google shares its index with everyone in the world, but only for single searches. It is equally pertinent to require Google to share its entire index with outside entities dealing in businesses, nonprofit organizations, even individuals, through what programmers call an application programming interface, or API. Google already permits this kind of sharing with a selected few, most notably a small but resourceful company based in Netherlands called Startpage. Breaking up Google’s search engine would give us a smattering of search engines that yield inferior results. A recent research demonstrates that Google’s “autocomplete” search suggestions can turn a 50/50 split among undecided voters into a 90/10 split without people's awareness. CCI and Search Bias Order: Missed Opportunity In a noteworthy instance, the Competition Commission of India (CCI) after a fairly long wait brought an end to the allegations of search bias against Google. Notably, in the case of Re: Matrimony.com. v. Google LLC and Ors. the informants viz. Matrimony.com Limited and others leveled allegations against Google that it has been running its primary business of search and advertising business in a rather discriminatory manner jeopardizing the business interests of the customers. Particularly, they alleged that Google has been promoting its own vertical search services manipulating its search and quality score algorithm. Interestingly, CCI imposed a hefty fine of INR 136 crore on Google for abusing its dominant position in the market of ‘Online search advertising services', as was determined by the Director General (DG) and CCI. Although the order superficially makes a huge step to deal with the issues grappling the digital economy, it has actually been rendered as a testament to the difficulties stumbled upon by the CCI in dealing with the anti-trust concerns. An investigation by DG revealed that Google has been using a specific set of algorithms to ensure that its consumers are actually swayed away to its services such as Google News, Google Maps, Google Flights, YouTube among others by blending these with its General Web Search Services. The CCI held that such practices are actually unfair as the display of universal results was limited to certain ‘fixed positions’, creating a misleading notion that such results were in order of relevancy. However, adding a caveat and accepting the contention of Google that post 2010, floating ranking for news results, image results, and local results has been introduced, CCI limited the order only for prioritizing search results before 2010. Exposing the vulnerability of the regulatory body, it was categorically mentioned in the order that the DG has been unable to record any finding qua the fully-floating ranking of Universal Results that Google currently uses. In respect with the Universal Results, it was opined that intervention of the regulatory body was not called for when changes in the system has been bought by Google in 2010. The primary reason for such a decision on this point could be attributed to the fact that the CCI and the DG although tread on the similar approach of the European Commission (EC), has failed to follow the methodology devised by the EC in a similar case. Notably, the EC in a similar case fined Google €2.42 billion for abusing dominance as a search engine by giving illegal advantage to own comparison shopping services. However, the EC in arriving at such a conclusion relied on and evaluated a large bundle of evidence including significant quantities of real-world data with around 5.2 terabytes of actual search results from Google. Moreover, a comprehensive analysis of questionnaires which EC has addressed to several hundred companies and experiments and surveys related to the impact of visibility in search results on consumer behavior was taken into account to arrive at such findings. Nonetheless, the CCI's decision of evading any possibility of providing an objective criterion for remedy also fails when it could have ordered for further investigations aiming at true disclosure of the algorithm process working behind such search results. Conclusion The use of an algorithm, apart from being helpful to avoid the microscopic lens of the CCI, has the potential to disrupt the economy. The lack of involvement of any human element in anti-competitive agreement and anti-competitive practices seems to be taking undue advantage of such a grey area. The Google search bias order along with the recent probe into the algorithm price-fixing by the airlines which is expected to be again in the favor of the business entities are testaments to such findings. In this regard, the time is apt for the CCI not only to follow the footsteps of EC in ordering for probe but also to follow the methodology of decision making. Having a more than majority control of about 92 percent of search worldwide, Google poses some serious threats, the three biggest threats that Google tosses to societies worldwide are barely affected by almost any intervention: the aggressive surveillance, the suppression of content, and the subtle manipulation of the thinking and behavior of more than 2.5 billion people. Fortunately, there exists a simple way to end the company’s monopoly without breaking up its search engine, and that is to turn its “index”—the mammoth and ever-growing database it maintains of internet content—into a kind of public commons. It is backed by precedents both in law and in Google’s business practices. However, the CCI yet doesn't seem to be well equipped to tackle the advanced technological adaptation by the internet giants such as Facebook and Google. This can be substantiated by the fact that unlike its European Union or Japanese Counterparts, CCI has been less active on this front to tackle the anti-competitive practices by the tech giants. Moreover, CCI being a regulatory authority ought to follow a fair mechanism that lays down the rationale for deterrence of dominance in market so that ‘rational orders’ are expected which can be applied to create a robust competition culture that suits a diverse economy like ours which requires extremely cautious and responsible regulation to maintain healthy competition to prevent exploitation by technologies like search algorithm. Authors Bio Dibya Prakash Behera is an undergraduate student pursuing B.A. LL.B (Corporate Law Hons.) at the National University of Study and Research in Law, Ranchi. He has an avid interest in Competition Law and Taxation and presently serves as the Student Coordinator of Recruitment Coordination Committee and member of the Moot Court Committee. Besides that, he also holds the position of Manager-cum-Editor at the Indian Review of Corporate and Commercial Law Blog. Vishal Rajvansh is an undergraduate student pursuing B.A. LL.B at the National University of Study and Research in Law, Ranchi. He possesses a keen interest in Corporate and Competition Law and is also a member of the Internship Coordination Committee and the Moot Court Committee.

Article by Naz Khan, ICC Jurisdiction In Resolution 1564, the UN Security Council (UNSC) requested the UN Secretary General to investigate reports of gross violations of humanitarian and human rights laws in the Darfur region of Sudan between 2003 and 2008. The International Commission established that the Sudanese government, along with Rapid Support Forces (RSF) or Janjaweed militias had carried out indiscriminate attacks on civilians including mass rapes, killings, torture, enforced disappearances and the destruction of villages on a systematic basis throughout Darfur; however, concluding the evidence of the crime of genocide was insufficient. These crimes were therefore referred to the International Criminal Court (ICC) who issued an arrest warrant for Al-Bashir, the incumbent President of Sudan. The case raised several issues of contention: first the issue of an arrest warrant for an incumbent head of state was contentious; at the same time the African Union (AU) requested a deferral of the case and established a High-Level Panel on Darfur, seeking to find an African solution to bring about accountability and reconciliation in the region. Charges against Al-Bashir included crimes against humanity, war crime and genocide based upon perpetration by means, meaning that Al-Bashir had committed these crimes indirectly through the army and the militia. ICC jurisdiction in this case is established by virtue of a UNSC referral, since Sudan is not a party to the Rome Statute of the ICC. Article 13, however, enables the UNSC to refer a case to the ICC, pursuant to its powers under Chapter VII UN Charter. Domestic Charges Instead of being surrendered to the ICC to face charges on international crimes, Al-Bashir has been in the custody of the military who instigated a coup in April 2019. Al-Bashir now faces prosecution in Sudan for corruption, after being found with $113million in foreign currency in grain sacks at his residence. Prosecutors in Sudan have informed Al-Bashir that he faces charges of “possession foreign currency and acquiring suspicious and illicit wealth”. Al-Bashir faces prosecution for being in violation of an emergency decree that he himself imposed following protests to his rule in which he imposed a state of emergency and make it illegal to carry more than $3,000 in foreign currency. Concerns were raised however, about the potential for Al-Bashir to receive a fair trial in Sudan or the possibility of him facing charges for the most serious charges against him, for which he faces up to 10 years in prison. Further investigations could lead to charges for money laundering, financing of terrorism or the killing of up to 100 protestors – which could lead to a potential death penalty under Sudanese criminal law. The great difficulty would be therefore that such charges might involve a long prison sentence or potential death penalty for Al-Bashir, who would never then be placed on trial in the ICC for the mass atrocities and the deaths of around 300,000 people, including allegations that he had overseen an attempt to wipe out part of the Fur, Zaghawa and Masalit communities. A Massive Blow to the ICC? The ICC has faced numerous criticisms throughout its 20-year history, for its long delays, weak management and ineffective prosecutions, including interferences with witnesses, and in particular from the nations of the AU for its disproportionate emphasis upon situations in Africa. The OTP currently investigating ten situations in Uganda, Democratic Republic of Congo (DRC), the Darfur, the Central African Republic (CAR), Kenya, Libya, Côte D’Ivoire, Mali, another situation in CAR, in Georgia and Burundi (since 2017). This African focus has led to numerous accusations against the court of double-standards, neo-colonialism and ‘white justice’, which makes the ICC no more than a criminal court for Africa, while failing to address war crimes in Iraq, or Afghanistan perpetrated by Western leaders. Such accusations have been growing over the past decade, with AU member states regularly threatening to withdraw en masse from the Rome Statute; South African announced its withdrawal in October 2016. The Al-Bashir case has been symbolic of this diplomatic crisis between the AU and the ICC, the AU being early supporters of the ICC, while other States (notably permanent members of the Security Council: the United States and China) have never ratified the Rome Statute. African leaders have been highly critical of the indictment against Al-Bashir, with Jean Ping, chair-person of the AU’s Commission arguing that “international justice seems to be applying its fight against impunity on to African as if nothing were happening elsewhere – in Iraq, Gaza, Colombia or in the Caucasus. The AU adopted an official policy of non-cooperation with the ICC; arguing that the peace process in Sudan should take precedence over the ICC arrest warrant for Al-Bashir and claiming that as a head of state he enjoyed immunity to prosecution. This non-cooperation by the AU has also led to the collapse of the trial of the Kenyan President Uhuru Kenyatta in December 2014. Non-cooperation has also been a feature of the failure of the ICC to obtain custody of Al-Bashir, who has travelled to Ethiopia, Chad, Malawi, the DRC, Nigeria, Kenya and South African, during the period of his arrest warrant; all of whom have failed to arrest and surrender Al-Bashir to the ICC, which is part of their obligation as parties to the Rome Statute. In the light of the non-cooperation of African States with the Office of the Prosecutor (OTP), it appears that the Al-Bashir case will be critical to the future of the ICC. If they do manage to prosecute the former Sudanese leader, this will show that they can overcome the lack of support from African countries and the AU in their lack of co-operation of the Court. At the present time, this appears unlikely, it seems most likely that Al-Bashir will be prosecuted in Sudan, but not for the most serious international crimes that he has been accused of, but most likely for more recent and relatively less-serious crimes committed during the recent protest in the country.

Article by Dhiraj Yadav, The Hon’ble National Company Law Appellate Tribunal (“NCLAT”) while adjudicating the matter of NUI Pulp and Paper Industries Private Limited v. Ms Roxcel Trading GMBH, upheld the viewpoint of National Company Law Appellate Tribunal (“NCLT”), wherein, moratorium was imposed on the Corporate Debtor as per section 14 of the Insolvency and Bankruptcy Code, 2016 (“IBC”) before the commencement of corporate insolvency resolution process (“CIRP”). An application under Section 9 of the IBC for initiation of CIRP was filed by the M/s Roxcel Trading GMBH against NUI Pulp and Paper Industries Private Limited. The application for initiation of CIRP was yet to be admitted and parties were given time to file their reply. However, there was a reasonable apprehension that the Corporate Debtor might sell its assets before the admission of application. This gesture would have been detrimental to the interest of creditors and would have also frustrated the objective of the IBC. Therefore, an application was moved by the applicant under section 60(5) of the IBC, requesting the NCLT to pass an interim order as per Rule 11 of the NCLT Rules, 2016, restricting the Corporate Debtor from alienating, encumbering or creating any third party interest on the assets of the Corporate Debtor till the time insolvency petition was not adjudicated upon by NCLT. It is also material to take into account that the Corporate Debtor did not made any refusal or objection to the fact that they had no intention to sell their assets. The Hon’ble Tribunal exercised its inherent power enshrined under Rule 11 of NCLT Rules, 2016 and vide its order dated 15.07.2019, Corporate Debtor and its directors were restrained from alienating, encumbering or creating any third party interest on the assets. This was later affirmed by the Hon’ble Appellate Tribunal. This robin hood step of NCLAT has marked the inception of a new era. This path breaking judgement of NCLT has made it explicit that once an application under Sections 7 or 9 is filed before the Adjudicating Authority, it is not mandatory for the Adjudicating Authority to await hearing of the parties for passing order of ‘Moratorium’ under Section 14. It has been observed that despite prescribing a time limit of 14 days for admission or rejection of application, the process has taken years. In the matter of Asset Reconstruction Company Limited vs. GPT Steel Industries Limited, the application was at pre admission stage for almost a year due to repetitive adjournments. Therefore, in such cases it becomes necessary to put a bar on the Corporate Debtor from alienating their assets or creating encumbrance over it before the admission of application. The view of the Apex Court is still awaited on this movement to pre- IBC moratorium. However, going by the way the Apex Court has supported IBC yet, it appears that the vision of NCLAT will easily get a green signal. The aforesaid judgment has also triggered the debate concerning inherent powers of the ‘Adjudicating Authority’. IBC defines NCLT as ‘Adjudicating Authority’ and not as a ‘Tribunal’. Therefore, application of NCLT rules, 2016 over ‘Adjudicating Authority’ has always remained hot potato. In the case of Uttara Foods & Feeds Pvt. Ltd. vs. Mona Pharmachem, the Apex court held that NCLT could not prima facie avail of the inherent powers recognised under the Rule 11 of the NCLT Rules. It was reasoned that Rule 11 grants powers to NCLT in its role of “tribunal” under the Companies Act, 2013, and not in its role of an “AA” under the Code. A similar view was taken by the Apex court in the case of Lokhandwala Kataria Construction (P) Ltd v. Nisus Finance & Investment Managers LLP. In the matter of Neha Himatsingka & Anr. Vs. Himatsingka Resorts Private Limited & Anr, The AA, by impugned order, rejected applications filed under section 7 of the Code by exercising its inherent powers to address some extraordinary situations. . While remitting the matter to AA, the NCLAT observed that the Adjudicating Authority has exceeded its jurisdiction and exercised its inherent powers under Rule 11 of the National Company Law Tribunal Rules, 2016, which is actually not applicable in the cases under Sections 7 or 9 or 10 of the I&B Code. However, in the landmark case of Swiss Ribbons Pvt, Ltd vs. Union of India, the Supreme Court took a contrary stand and stated that NCLT can invoke Rule 11. It was held that a party can approach Adjudicating Authority that can allow or disallow application as per inherent powers under Rule 11 of NCLT Rules, 2016. As of now, the position pertaining to the inherent powers of NCLT is not yet settled and it still remains a matter of contention and debate. A Concluding look: This welcome move of the NCLAT will prohibit the promoters from taking advantage of the pending application. It has again established IBC as a dynamic law and in the coming time, we might come across a paradigm shift from post-IBC to pre-IBC moratorium. However, the conundrum pertaining to application of NCLT Rules, 2016 over ‘Adjudicating Authority’ will certainly serve as an obstacle. Thus, there is an imperative need to resolve it with a view to avoiding contradictions in future.

Article by Mudit Burad and Yajat Bansal, A searing photograph of the sad discovery of a man and his 23-month-old daughter lay face down along the bank of the Rio Grande as they tried to seek asylum in the US, represents that in the loud and caustic debate over border policy, various repercussions usually go unseen due to administrative actions. Similarly, a 7-year-old girl was found dead in the Arizona desert in an attempt to seek asylum in the US earlier this June. A report by the Office of Inspector General of the United States asserts that the concerned authorities are unaware of the actual number of children being separated from their parents by the immigration authorities. However, the US Department of Health & Human Services has identified approximately 2737 children to be separated from their parents. The man and his 2-year-old daughter were identified as El Salvador nationals who attempted to seek refuge in the US. El Salvador has one of the highest rates of homicides in the world due to gang violence which has been prevailing in the country for decades now. The law and order situation and the political stability of the country are in turmoil due to the intense gang warfare. The residents, therefore, are migrating towards the safe havens where they can seek asylum or refuge. Hence, the above scenario is in complete resonance with the judgement of Columbia v. Peru where the International Court of Justice held that asylum can only be sought where an arbitrary action has been substituted by the rule of law in the asylum seekers homeland. The legal sphere surrounding the US administration. According to Title 8 Section 1158 of the US Code, the refugee bears the burden of proof to establish the fact that nationality, religion, race, membership in a particular social group or political opinion shall form as one of the central reasons of persecution of the applicant in his/her native land. In the above case, the asylum seekers were the residents of El Salvador hence belonging to a particular social group who are being forcefully extorted by various internal aggressors. Apart from the domestic law, the US also bears international obligations under Article 33(1) of the United Nations Convention on Refugees, 1951 [“1951 convention”], and its 1967 protocol (which has been duly ratified by the US) wherein the principle of non-refoulement has been referred as a rule of customary international law which makes it incumbent on any state irrespective of it being a signatory or not to prohibit the return of a refugee to a territory where his or her life or freedom is under threat. Under Article 1 of the 1951 Convention, the said phrase, “his/her life or freedom is under threat” is comprehensively interpreted as, such a fear which enables unwillingness or inability amongst refugees to avail protection from the state in which the threat of persecution persists. Article 33 of the 1951 convention also forms as one of the fundamental provisions of the convention and hence is kept out of the purview of reservations, which could be generally made by the state parties at the time of ratification or accession to the convention. In addition to this, Section 3 of Convention against Torture and other Cruel, inhuman or degrading treatment or punishment, 1984 contains an explicit prohibition which prohibits extradition or return of any such person whose life can be apprehended to be under threat on substantial grounds. The convention has been ratified by the USA in 1994 due to which, under Section 25 of the convention, the US is subjected to all of the fundamental provisions that the convention may contain. The principle of non-refoulement as a fundamental provision of international refugee law is deeply intertwined with the norms of jus cogens. Under international law, the norms which fall within the scope of jus cogens are capable of making certain principles of international law enforceable outside the scope of state sovereignty. Non-refoulement upholds the spirit of basic human rights under which some widely recognised rights include, right to life, freedom from torture, etc. The principle of non-refoulement has been accorded special status as the same is observed as non-derogable right under the 1951 convention under which, the provision of non-derogability cannot be compromised, not even in the circumstances that would in any ordinary course justify derogation from any other rights. Cartagena Declaration on refugees’ forms as an archetype wherein, the principle of non-refoulement is widely recognized as jus cogens by the international community. As under para. III. 5 of the declaration, non-refoulement has not only been regarded as a cornerstone of the international refugee protection law but has also been acknowledged as a principle under the rule of jus cogens. In 2012, the International Court of Justice while deciding upon questions relating to the obligation to prosecute or extradite in the case of Belgium v. Senegal acknowledged the jus cogens character of the prohibition of torture by assigning the same special status for the unconditional enforcement of non-refoulement. Under the judgement, the framework of the prohibition of torture could be analogically deduced to being resonated like that of non-refoulement. All these elements together constitute a dynamic which supports the jus cogens nature of non-refoulement. US Border Policies: Actions and Implications. In the still warm deal over border policy between the US and Guatemala, the US in a much strategic attempt has ventured to evade its responsibilities by inducing the Guatemalan president to sign the treaty on unconscionable terms. The deal buzzed as “safe third country agreement,” shall entail a pre-condition on all those asylum seekers who travelled to the US by land through Guatemala to seek asylum in Guatemala in the first place. This precondition if seen in the light of the current state of affairs prevailing in Guatemala, can be deduced as an indirect attempt by the US to disregard the fundamental principles underlying the concept of asylum-seeking which the principle of non-refoulement holds. Apart from this, the Trump administration has till now introduced various policies under its regime to debar the entry of asylum seekers to seek refuge in the country. US Attorney General Jeff Sessions announced the zero-tolerance policy in April 2018, which aims to initiate criminal proceedings against the people who are caught crossing the US border by undermining the established procedure. Under the light of said executive order, till now almost 3000 children have been separated from their parents. Apart from this, the Trump administration has imposed various deterrents to make the application for asylum more cumbersome. For instance, asylum seekers have been compelled to wait for a period of six months on the side of the US-Mexico. The psychological impact amongst the adult migrants and the children due to detention and deportation has been observed to be a major detrimental factor contributing to suicidal tendencies and deterioration of mental health. A 2018 report by ProPublica, America’s leading newsroom known for its investigative journalism in the public interest, has observed that the process of separation of children from their families has led to rampant rates of commission of sexual abuses in shelter homes which are often regarded as the so-called safe havens for asylum seekers. In the most recent announcements on the immigration policy, the Trump administration has pressed for a new rule which would essentially ban all the asylum seekers from seeking asylum who belong to “safe third world” or Central American nations. The administration states the rule as “enhancing the integrity of the asylum process by placing further restrictions or limitations on eligibility,” CONCLUSION The protracted and cumbersome process of asylum-seeking in the US coupled with various administrative orders passed by the Trump administration quite distinctly represents that the US has engaged in the violation of basic human rights. And these violations have emerged after contravening the principle of non-refoulement which has been recognized as having the jus cogens nature in customary international law. This current incessant neglect of the US to comply with the international conventions to provide asylum is a clear consequence of various intermingled socio-political and economic trends. And therefore, considering the 2020 US presidential elections, the incoming president of the US bears the responsibility of complying with the international norms which are being violated by the current administration.

Photo Credit: United Nations Photo, Article by Christian Delev, Introduction The chief assembly point of scepticism in the international legal belief system has consistently been the theory of international legal sources, be it for sustaining Western-centrism, ignoring the needs of the international community as a whole, or its theoretic inconsistencies. The key challenge to the present theory remains the fundamental inconsistency between the established normative sources of international law and any voluntarist or dispositive reading of it. The fruition of jus cogens norms, particularly their recognition in international (here, here and here), regional (here) and ad hoc court jurisprudence (here), has itself led to the incorporation of peremptory (i.e. hierarchical) norm obligations owed by States to the international community within the previously authority-based theory of sources. Thus, this development has, in Linderfalk’s words, ‘opened the (sic) Pandora’s Box’ by constituting a peremptory, regulatory norm that deeply restricts States’ autonomy within a system allegedly postulated on it. This article is written in light of the International Law Commission’s (‘ILC’) draft reports on jus cogens norms, started in 2017, to argue for the cogence of the concept. It argues that, rather than seeing their emergence as a legal conundrum that demands a return to a dispositive theory, the existence of jus cogens norms is normatively sound and has become a necessary legal development for international law to move beyond a State-centric viewpoint. It will first address two criticisms of jus cogens norms – one theoretical and the other practical. Consequently, it will argue that this normative development has been critical for recognising human dignity and the international community’s interests within general international law. However, by revealing the inconsistency within the broader theory of sources, it is argued that jus cogens norms may herald a new general theory of sources. Addressing Challenges to Jus Cogens Norms Even prior to their inclusion in what are now articles 53 and 64 Vienna Convention on the Law of Treaties [VCLT], jus cogens norms had been a key natural law argument that challenged the monopoly that voluntarism appeared to project in early Permanent Court of International Justice case-law, especially the Lotus and Wimbledon judgments. In Schwarzenberger’s early criticism of this development, later shared by Ian Brownlie (pp. 516–17), he famously equated it to ‘national jus cogens’, i.e., public law that in all circumstances overrides the consent of private parties in their negotiations and argued, inter alia, that at the time no ‘de lege lata’ evidence or criteria existed to demonstrate what would or could constitute a jus cogens norm following existing customary international law, especially amongst existing international legal principles and regimes. In responding to this concern, it must first be recognised that while the International Law Commission purposely avoided defining what constitutes jus cogens norms, particularly given their relative novelty at the time that the VCLT provisions had been drafted, the importance attached to the international community is clearly illustrated, for instance in State delegations’ express mention to the international community and even direct references to ‘a general multilateral treaty’ as ways to modify existing jus cogens norms in the respective VCLT provisions’ travaux preparatoires (paras 2–4). While the space remains for further clarification concerning their identification, the ILC’s first draft report has brought some degree of clarity to this. The basic characteristics of a jus cogens norm, per draft conclusion 4, are that it is 1) a ‘norm of general international law’, most commonly customary international law (draft conclusion 5(2)), that 2) ‘must be accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted’. It must be recognised, of course, that while the approach has indeed brought some clarity, new questions arise, namely how a court may methodologically determine the international community’s ‘acceptance and recognition’ given the degree of silence and also the methodology for interpreting their developing content. One potential answer borrowed from customary international law scholarship, would be by using ‘induction’ for identification and ‘deduction’ for interpretation. While similar theoretic questions relating to jus cogens norm identification abound, it is important to also discuss the application of jus cogens norms within general international law. Linderfalk thus argued that the very consequences of jus cogens norms go beyond the reasonable expectations of any ‘international actors’. In taking the case of the prohibition on the use of force, he first discusses that the legal norm, which can be expressed in both practice and treaties, must not only be construed in light of the explicit prohibition, but also taking into account existing exceptions, such as UN Security Council decisions taken under Chapter VII UN Charter and the coexisting customary international law and UN Charter self-defence exceptions in cases of ‘armed attack’. By claiming that both exceptions might prevent the jus cogens norm from being enforced and, moreover, arguing that the self-defence exception, an aspect of a jus cogens norm itself, is restricted by other international humanitarian law jus cogens norms, Linderfalk concludes that these inter-relations are increasingly becoming unfathomable. While this picture would appear complex and almost paradoxical given the complex definition of the prohibition on the use of force and the projected overlap between two peremptory norms, this need not be so. Provided, as Linderfalk himself claims, that norms are ‘not to be identified with the utterance or utterances by which we assume the norm to be expressed’ (p 857), it can be claimed that the jus cogens norm in question must be systemically interpreted to mean the ‘prohibition of (unjustified) use of force’. Consequently, any ‘justification’ must itself be read in light of the relevant normative context, expressed in multilateral treaties (e.g. the UN Charter) and customary international law, which itself is restricted by other peremptory norms, for instance, international humanitarian law jus cogens norms. A Straw in the Wind? While the theoretical footing of jus cogens norms is itself sound, their application bears witness to the restraints posed by broader international law. However, while the existence of jus cogens norms is not itself a panacea against all violations – as witnessed in the Armed Activities (DR Congo v Rwanda) (para 64) and Jurisdictional Immunities (paras 92–97) cases – the present theory of sources itself is not a palladium against their enforcement. As peremptory norms have gained prominence within regional human rights court systems, so too has the drive for consistency between legal sources grown beyond the subject of academic debate. Advancements in the International Law Commission’s work on the formation of customary international law has – not without controversy – recognised that ‘practice’, one of the two components of customary international law, extends beyond State practice and partially recognises the practice of International Organisations. Through the clarification of the theory underlying customary international law, especially in light of the international community’s interest, theorists are provoked to make sweeping changes in the grand theory of sources. The serious consideration of jus cogens norms as a source of international legal obligations may indeed further challenge the dispositive turn. Conclusion While the challenges to the comprehensibility, plausibility, and validity of jus cogens norms are largely moot, they augur a visible paradigm shift within international law: a movement from holding State sovereignty as the cornerstone of the theory of sources to recognising the slowly emerging international community. Through the gradual application and clarification of the theory of jus cogens norms, so too can the general ontology of a new accepted theory of sources emerge. About the Author: The author is an LLM candidate at Hughes Hall, University of Cambridge, and Executive Blog Editor at the Groningen Journal of International Law. He recently graduated summa cum laude from the LLB International and European Law programme at the University of Groningen, the Netherlands.

Picture taken from 2019 06 14 FCCT State of Myanmar, press briefing with activists Thinzar Shunlei Yi and Thet Swe Win, Article by Kelsey Peden, On Friday, June 14, 2018, activists Thinzar Shunlei Yi and Thet Swe Win delivered a press briefing on the state of protest in Myanmar. Both activists, who are from the Buddhist Bamar majority population of Myanmar, are leaders in the fight for the rights, protection, and recognition of Burmese Muslims.  As the Rohingya crisis receives increasing national attention, these activists have organized national and international campaigns pushing for the Burmese government to end discriminatory actions against all religious minorities.  Additionally, they call for the end to the atrocities and humanitarian crisis in the Rakhine state.  But Thinzar Shunlei Yi and Thet Swe Win’s plans for the next few months are not as ambitious.  With elections approaching, the activists are worried about their own safety.  Their plan is to lay low; “arrest season” is here. Little legal protections exist in Myanmar for the activists.  Myanmar has a history of silencing passive protest, reaching a violent peak in 1988, when the military government responded to passive protesting with extreme brutality.  In March, 1988, hundreds of student protestors were killed in the Red Bridge Massacre when the military cornered, opened fire, and drown protestors in the nearby lake. In September, the newly established State Law and Order Restoration Council (SLORC) opened fire on protestors in cities throughout the country. By the end of September, an estimated 3,000 people had been killed. By the end of 1988, more than 10,000 protestors had been killed.  This number is underestimated as many more people were deemed missing. Many hoped the 2012 elections would spur progressive change for Myanmar, this has not been the case. While violence against protestors has decreased, the government’s active effort to silence their voices has not.  In Myanmar, the right to protest is still not a protected right.  Under the Myanmar Penal Code section 505(a-c), protestors are subject to two years in prison for “intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility.” Additional arrests have been made under Myanmar’s “Official Secrets Act,” criminalizing the sharing of any kind of information held by the government, as well as Myanmar’s defamation laws. Those found in violation of national law can be charged with a crime and are subject to imprisonment.  Notably, those with standing charges against them are banned from running for public office.  As Human Rights Watch reports, the Myanmar government is “not using the law to protect the people but to restrict the people.” Myanmar currently has 388 political prisoners; 28 people serving their sentences inside the prisons, 142 people facing trial inside prison, and 218 more people face trial outside the prison.  According to Thinzar Shunlei Yi, with the elections approaching the “political prisoner rate keeps growing, and it will be more in the next few months.”  For Thet Swe Win, the Governments motivation for the arrests is clear; “almost all of the activists in Yangon, and the whole country, have the current charges, but that is also one of the strategies for us not to get involved in politics.  We are already tied up by the charges.” Thinzar Shunlei Yi has one charge against her for protesting.  Thet Swe Win has two. Moreover, the realities for the arrested activists are dire.  There is almost no accessible legal representation to help activists navigate the complicated charges. “When we get charged, we find it really hard to get even one lawyer.  We don’t have any legal knowledge; it is awkward for us” said Thinzar Shunlei Yi.  Lawyers are hesitant to represent activists, partially for fear of being prosecuted if they do. Even after being released, former prisoners still face discrimination.  They are denied passports, not allowed to continue their studies, and those who were lawyers prior to their arrest often have their registration revoked. The issue of fair legal representation is two-fold. Even if a lawyer is found, no real human rights mechanism exist that allow activists to fairly fight their charges.  Existing laws are twisted with the intent to punish.  “If the government doesn’t like what you say, they can charge you with any law. If there is no law, they can make a new one and charge you with that.” according to Human Rights Watch.  As Thet Swe Win calmly explained, one activist was forced to drive hundreds of miles every two weeks to attend a 3-minute parole meeting.  Missing the meeting, even by a matter of minutes, would land him back in prison. However, international attention is slowly being brought to these oppressive laws.  In December 2017, two Reuters reporters, Wa Lone and Kyaw Soe Oo, were sentenced to seven years in prison for violation of the Official Secrets Act.  International and national pressure on the government to release the two reporters resulted in their pardoning more than 500 days after arrest.  However, that type of pressure and political will simply does not exist for most local activists.  Instead, Myanmar rights groups are calling on the government to change these restrictive laws.  As Anna Roberts, executive director of Burma Campaign UK publicly stated; “Aung San Suu Kyi and the NLD” the new progressive government, “have the majority in parliament to repeal all repressive laws, and they should do so. The only reason these … activists are now in prison is that the NLD doesn’t care enough about fundamental human rights to protect them.” All of this leads activists like Thinzar Shunlei Yi and Thet Swe Win to question their own path forward.  Without available lawyers, human rights laws, or international organizations willing to speak up on their behalf, there is no guarantee what their future will hold.  For activists in Myanmar, there is a quiet understanding that judicial justice is unachievable.  Instead, they protest, risk their safety for the betterment of their nation, and tread lightly during “arrest season.”

By Lauren-Kelly Jones Thus began the Second Opium War – also known as the Arrow War, or the Anglo-French War – which followed the First Opium War (1839-52). Britain sought a series of allowances from China to extend their trading rights: full access for British merchants, an ambassador in Beijing, legalization of the opium trade, and exemption of imports from tariffs. Ultimately (in 1860) the Qing Dynasty were defeated by the foreign powers, and the resulting “unequal” treaties helped to weaken the dynasty, which eventually fell in the early 20th Century.

By: Jackie Momah On February 24 1924 Mahatma Gandhi was released from prison. In his fight against the British rule over India in the colonial era, Gandhi was arrested many times. In this instance he was arrested in March of 1922, the charge given to him was sedition. In protest of the British colonial government, the Raj, and their enactment of the Rowlatt Act of 1919, Gandhi organized and spearheaded a non-violent movement of civil disobedience. This Act gave the Raj the power to hold Indians suspected of sedition without trial. Inspired by Gandhi’s ideals, the Indian National Congress launched a campaign of non-cooperation against the Raj. Gandhi travelled nationwide, urging the people to boycott British products, schools and law courts, to resign from government employment and refuse to pay taxes, in a showing of a dignified and organized protest giving the people a voice. This movement was accurately described as a “full-scale grassroots operation throughout the country”. This two-year movement was however halted in 1922, after a mass protest turned violent as the protesters fought against the British police, killing 22 people. With it apparent to Gandhi that his non-violent movement had taken a turn, he called for an end to the non-cooperation. Shortly after, he was arrested and convicted of sedition, with a sentence of six years. However, following a medical procedure, on this day in 1924, Gandhi was released from prison. Upon his release although a little bruised from the outcome of the non-cooperation, Gandhi was not deterred from fighting for his cause. He went on to wage more dignified and organized protests and in 1947, India gained its independence from Britain.

By Arjun Ghosh On February 17, 1863, the International Committee of the Red Cross (ICRC) was founded in Geneva by Swiss businessman Henry Durant, after he witnessed wounded soldiers left without medical care after the Battle of Solferino, an engagement in the Franco-Austrian War. The organization was founded as the “International Committee for Relief to the Wounded” and aimed to improve battlefield medical services and develop international humanitarian law. One year later, the organization hosted delegates from 18 countries. The group eventually agreed on a proposal by the ICRC to develop national relief societies like The American Red Cross. The ICRC continues to work with these national Red Cross societies to provide supplemental medical aid to soldiers during conflicts. Later that year, the ICRC persuaded governments to adopt the first Geneva Convention, which obliged armies to care for wounded soldiers, whatever side they were on, and introduced a unified emblem for the medical services, a red cross on a white background. In 1949 the ICRC prompted states to revise the existing Geneva Conventions, which included a legal mandate for the ICRC to provide neutral medical support to soldiers during conflicts. The Conventions also prescribed that the ICRC emblem (a red cross on white background, the inverse of a Swiss flag) proves protection for military medical services and relief workers in armed conflicts and is to be placed on humanitarian and medical vehicles and buildings.

By Dru Spiller On this day in 1952, Kenyan Governor Eveln Baring declared a state of emergency in response to the Mau Mau Rebellion. The British occupation of Kenya started in 1895 and the Mau Mau Rebellion was neither the first, nor the last, revolt against British colonial rule. Most of the fighters came from Kenya’s major ethnic group, the Kikuyu, who had suffered increasing economic marginalization as white settler expansion decimated their land holdings. While nationalists of the Kenyan African Union (KAU) argued for political rights and land reforms with the British government, radical activists splintered from KAU and began to employ militant national strategies. In 1952 the Kikuyu fighters began attacking political opponents and raiding white settler farms. This led to the British declaring a state of emergency and the deployment of army reinforcements into Kenya. What followed was a violent counter-insurgency. The state of emergency did not end until 1960. While the number of Mau Mau and other rebels has varied between 11,000 – 25,000, only 32 white settlers were killed during the insurgency. Hundreds of thousands of suspected leaders and fighters of the Mau Mau Uprising, including the future first president of Kenya Jomo Kenyatta, were rounded up and imprisoned. There were also those taken to detention and rehabilitation programs. These prisoners lived in deplorable conditions with a high risk of repertory diseases and violence. Prisoners were deprived of food, forced into labor, and torture. They have been described as the British gulag and as one Nairobi judge called a particular camp, “Kenya’s Belsen”. One colonial officer described the British work camps as “short rations, overwork, brutality, humiliating and disgusting treatment and flogging – all in violation of the UN DECLARATION FOR HUMAN RIGHTS” (articles 3, 5, 9, and 17 to say the least). Although neither the league of nations nor the UN existed, and the UN Convention Against Torture was not adapted until 1984 (signed by UK and Northern Ireland in 2003). The Magna Carta provided clauses against unlawful detention. “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land” (Magna Carta Clause 40, 1215). In a landmark case in which a former colonized nation sued their former colonizer, Mau Mau survivors sued the British government in a case that alleged castration, physical, and sexual abuse. In 2013 the case eventually led to 5,228 victims receiving a total of 19.9 million pounds. In 2016 the Kenyan Emergency Group Litigation brought another case to the London High Court seeking reparations for survivors. Litigation is ongoing.

Article by Travaux Guest Contributor Themis Tzimas. Introduction: The Israeli Knesset adopted a few days ago- at the 19th of July- a controversial law, entitled as “Basic Law: Israel as the Nation State of the Jewish People”, which intends to further promote the concept of Israel as a Jewish state. Given the lack of a codified constitution in Israel, this law is considered to be of constitutional nature. The law labels the state of Israel as the historical homeland of the Jewish people, and determines that “The right to exercise national self-determination in the State of Israel is unique to the Jewish people.” This is the core of the law: the attribution of the right of self- determination in the state of Israel to only the Jewish people. While the law does not deprive any citizen of Israel of his or her citizenship or existing political rights, it changes the framework for the implementation of both, for almost 25% of the population since it limits self-determination in Israel, only to the Jewish population. The current article examines the validity of this provision of the law from the perspective self- determination as jus cogens norm of international law. An additional question is whether it constitutes a type of apartheid law. ‘Self- determination in international law and its internal dimension: The main issue with self-determination emerges from the fact that while its significance is more or less uncontested, its exact interpretation and application is highly ambiguous. In principle, as a right it constitutes the normative foundation of any community, so that the latter can determine its political, economic, social, cultural status and identity. In addition to its potential guarantee at a domestic level, it is also protected and guaranteed by the international community and by international law, as a right of both the people of a state and the state. In other words, the right is expressed through both an external and internal dimension. The external dimension is created through the existence of a state, the respect for its territorial integrity and political independence, as well as through the functional role of the state internally. The internal dimension of the state is conceived as a mechanism within which, the people of the state can enjoy self-government and have several other rights fulfilled. Within this latter dimension political freedoms and civil rights, the protection of human rights by the state, participation in in the conduct of public affairs directly or through freely chosen representatives, the right to vote are included. In this sense, states are bound by self-determination as a jus cogens norm of international law, regarding both their international conducts towards other states and their own domestic policies, including the self- government of the people of the state. The essential part of this latter obligation is what the Friendly Relations Declaration determines: the responsibility of all states’ governments to represent the whole of people “belonging to the territory without distinction as to race, creed or color”, linking such an internal responsibility of states with their right to have their external self- determination respected. The question of the “self” in self- determination The “Friendly Relations Declaration” helps in terms of partially clarifying a crucial element: the question of who is entitled to the right of self-determination. While the concept of the “self” in the framework of self- determination has generated significant debates especially in relation to minorities or other groups of populations seeking autonomy and independence from sovereign states, it is rather unanimous that within the framework of a sovereign state, its people as a whole constitute the subject of self- determination. As Asbjørn Eide's report to the UN Commission on Human Rights stated, the term people is defined as “... the whole people, the “demos”, not the separate “ethnoses” or religious groups.” The concept of people establishes a spectrum of rights which are reflected into and are guaranteed by the government which constitutes the people’s choice. The primary bearer of self- determination within states is the political community as a whole. Having said that, we must not forget that indeed, within a larger political community or “demos” there have been cases of multiple, emerging fragmentations. Most often this is the outcome of internal conflicts or of secession movements and therefore of a bottom- up procedure. The difference in the Israeli case is that the fragmentation of internal self- determination emerges from a “top-down” approach, as a political choice of the Israeli state, through the Knesset, towards the political community. While, the non –Jewish citizens of Israel are not stripped of their citizenship with the current law, their exemption from internal self- determination constitutes not merely a declaration but a constitutional transformation of the state of Israel, on the basis of religious discrimination and segregation, which follows a variety of discriminatory policies on the same basis. Therefore, the highest level of law established that there are citizens who are entitled to self-determination and citizens who are not. At the same time, the community which is entitled to self-determination is mutilated through discriminatory legislation, since a certain part of it is deprived of its fundamental right and therefore eventually –and gradually- stops being part of the political community. Legitimacy of the law under self-determination as a jus cogens norm On the grounds of the previously mentioned the question is whether the adopted basic law complies with international law or not. The legitimacy of the law from the perspective of the Israeli legal system is irrelevant for international law due to the international law supremacy principle. Even more such is the case, given that self-determination constitutes a jus cogens norm and therefore it is binding for all states even regardless of their will and domestic legislation. The question therefore is whether the substance of the adopted legislation complies with self- determination as an international legal norm. The argument here is that it contradicts the latter on a double basis: First, the exemption of a portion of the population and of the citizens from the right of self- determination, given that they remain part of the population of the same state exempts them effectively from the right to be entitled to any aspect of internal self- determination, on the basis of their religion. They are entrapped into a state which at the highest level is based on discrimination against them. Such a situation is contradictory though both to the collective and to the individual imperatives of self- determination as a jus cogens norm. Second, the “up-down” deprivation of the right of self- determination violates the element of individual and collective choice which is inherent in self- determination. A pre- existing bond of common and unified Israeli self-determination is breached contrary to the will of the people concerned. On such grounds, the recent Israeli Basic Law is contradictory to a jus cogens norm.  Therefore, from an international perspective it must be considered as lacking legitimacy and thus, null and void. Conclusions: The recent law raised further concerns –and with good reason- for the nature of the state of Israel. It was only in 2017 that the UN Economic and Social Commission for Western Asia published the report “Israeli practices towards the Palestinian people and the Question of Apartheid”. The current law seems to be verifying some key findings of this report due to the deprivation of the right to self- determination from parts of the population on religious and indirectly racial grounds as well. It is a debate of historical significance which obviously cannot be analyzed here. It is mentioned in order to show the significance of the passage of this law not only at a national but also at an international level. Indirectly it indicates the continuous significance of the various dimensions of self- determination as a jus cogens norm and the significance of international law as a guarantor of rights, even contrary to the will of state.

By: Anupriya Dhonchak and Shubhangi Agarwalla Introduction: Recently, a Committee of Experts set up in India to draft a law for data protection in the country after enunciation of the right to privacy by the Indian Supreme Court, released its draft bill. The bill comes against the backdrop of a flagship program of the government, the Aadhaar Project the biggest ID database of citizen data in the world. The Project has generated significant privacy and surveillance concerns and justifiably so, invariably and drastically altering the citizen state relationship. Its constitutionality is being challenged in the Indian Supreme Court on multiple grounds, a discussion on which is beyond the scope of this paper. This paper discusses the vulnerability of the database without a remedy in international law due to cyber espionage by foreign states. As a Global South perspective, keeping the citizen at the center it also contextualizes how the lack of political foresight to account for this national security concern makes a casualty of citizens’ control over their data, consent and privacy inasmuch as this data is collected coercively by domestic governments and aggregated richly in a mammoth database heightening its susceptibility to surveillance with impunity by foreign states. The paper argues that International law’s frightful ineffectiveness in tackling this predictable threat has a disproportionate impact on the rights of citizens of the Global South. Disproportionate Impact on the Global South: Countries in the Global South, deeply divided by inequalities and with a massive power differential between technocratic governments and uninformed citizens often carry out surveillance sans strong legal, political and social frameworks for protecting privacy, freedom of speech, expression, the right to dissent and protest among many other human rights. This allows the government to unfairly target its citizens and disenfranchise entire groups. Most importantly, governments in the Global South are better equipped to coercively collect, store and process personal data of citizens without the need to adequately inform them of or factor in the consequences of breach of their personal data. Thus, citizens of the Global South end up having little control over how their data is processed. Further, international law is ineffectual in dealing with the breach of such databases by other state or non-state actors, compromising the informational privacy of such citizens gravely. Datafication refers to the process by which a person’s life and its aspects are turned into quantifiable data which can be surveilled, tracked, processed and analysed. (Cukier, Kenneth, and Schoenberger, 2013, pg. 28). It was only gradually normalized in the Global North where introspection and action to build in sufficient safeguards also evolved from time to time. This is not to say that big data and its processing is not a potent enough threat for the Global North but only to illustrate the disproportionate impact of lack of safeguards in domestic or international law in the Global South, where governments are routinely deploying and experimenting with technology, charmed by the potential of the ‘digital economy’. International Articulation of the Right without a Remedy: The Court of Justice of the European Union (CJEU) ruled for greater protection of personal data of EU citizens in the Google Spain SL case holding that surveillance should not render the right to privacy illusory. Latin American countries have a writ for Habeas Data as part of the region’s data privacy law (Rengel, 2013 pg. 150) to grant a remedy to parties in case of breach (Jeong Ahn, 2009 pg. 1007, 1043). The Supreme Courts of India and U.S.A., among many others, have recognized a right to informational privacy constitutionally preventing the disclosure of citizens’ personal information without their consent. The UNGA, UDHR, ICCPR, ECHR and the Organisation of American States have also emphasized the significance of data privacy and protection of personal data making the right to data privacy a human right of global recognition, arguably according it the status of customary international law on the basis of widespread state practice and opinion juris (Pillai and Kohli, 2017 pg. 3) Cyber Espionage in International Law: The well-known Lotus principle is the starting point to determine the international legality of state conduct. In a nutshell, this principle provides that when there is no positive rule that prohibits certain acts, states are free to adopt principles they deem fit. There is no specific international treaty that regulates cyber espionage. The recently released Tallinn Manual 2.0, for example, surveys the realm of all relevant “specialized regimes of international law and cyberspace,” and includes discussion of international human rights law, diplomatic and consular law, law of the sea, air law, space law, and international telecommunications law. None of these categories explicitly set out a regulatory regime for cyber-attacks, cyber-hacking, or cyber espionage. In fact, the Tallinn manual directly acknowledges that some cyber operations, such as cyber espionage, fall under no per se regulations in international law. Similarly, under Art 17 of the International Covenant on Civil and Political Rights (ICCPR), everyone is guaranteed a right against arbitrary or unlawful interference with her “privacy, family, home or correspondence.” and entitled to the protection of law against such interferences. However, a diverse coterie of privacy and data protection officials representing Switzerland, Japan, Australia, Germany, Burkina Faso, Canada, the United States and 59 other state delegations at the International Conference of Data Protection and Privacy Commissioners in Warsaw, Poland, agreed on the fact that Article 17 of the ICCPR would require modification for it to cover surveillance. This shows that in its status quo, the Covenant is not violated by surveillance. In the absence of direct and specific international law on the topic of cyber espionage, based either on right to territorial sovereignty or privacy, it constitutes an extra-legal activity that is unconstrained by international law. There are two schools of thought advocating this; first is the realist school, according to which espionage ties in with the States right to anticipate an armed attack and act in self-defense. Thus, the States have a right to gather intelligence from hostile states to protect their own interests. We reject this realist conception of cyber-space because international relations have predicated upon the principle of sovereign equality of States since the inception of the UN Charter. A corollary of this principle is that states should not interfere with the internal affairs of another. By penetrating the internal discussions of a state, the surveilling state might be thought ultimately to weaken the spied-upon state’s ability to effectively protect its own interests when it seeks to act. The consequence is that even if the state gains useful information regarding a hostile state’s capabilities, a foundational legal rule of the international community is violated. The second school is functionalist and its proponents believe that espionage increases mutual trust between states and thereby increases cooperation. We also reject this functionalist approach because unauthorized collection of data constitutes a clear transgression of State sovereignty and has the capability of further jeopardizing the potential for international cooperation. Thus cyber espionage bears a significant threat to international peace. Lastly, it is said that widespread state practice indicates that it is part of customary international law. However, we contend just because espionage is widely practiced, does not make it customary international law unless it is supported by opinio juris. Crucially most states refuse to accept responsibility and deny all involvement. This leads us to conclude that state practice and opinio juris run in different directions when it comes to cyber espionage. Lack of remedies: Countermeasures According to the International Law Commission’s Articles on State Responsibility, which are supposed to reflect customary international law, countermeasures are acts or omissions that would have been unlawful had they not been responding to an internationally wrongful act of another State. However, this is only when the cyber operation is illegal in international law which is not the case with cyber espionage. In any case, for the countermeasure to be legitimate a state that wishes to employ it will still need to convince other states of the accuracy of its attribution in order to establish the legitimacy of its attack. However, three specific features of cyberspace lead to attribution problems when it comes to surveillance as well. First, the cyber space allows for anonymity; second, it is possible to commit multi-stage cyber attacks and third, a cyber attack can be launched in next to no time. Prior scholarship has extensively focused on these technological barriers to attribution, which get compounded in the Global South context because countries of the Global South, like India, lack the technical wherewithal of more advanced States to reliably attribute cyber espionage and thereful will be less able to establish the necessary basis for resorting to counter-measures. The absence of attribution therefore limits institutional and legal solutions. Treaties Similarly, it is unlikely that this problem can be solved by entering into treaties. This is primarily because incentive structure for compliance with new international rules will not be reciprocal. Different states would have stronger or weaker incentives to comply with any new rules. Certain nations, like Russia, United States and China have an established existing cyber espionage capacity, and are incentivized to push initiatives that would continue their dominance in the area. This politicization was clearly demonstrated when Russia and China rejected the UN Group of Government Experts Report which was meant to develop State consensus in cyber international law. Thus, an anti-cyber espionage treaty would unlikely be acceptable to these nations while an anti-cyber espionage development stance would be held oppressive by weaker states, who have an interest to invest in more development to shrink the gap in information gathering abilities. No Domestic Safeguards: Specific laws protecting the right to privacy are still being written in the Global South, making it an abstract right without a remedy for violation. At the same time, governments are entrenching themselves by experimenting with innovations and governance of surveillance by collecting the data of citizens without their explicit consent, sometimes even blatantly lying to them about its uses. This paper instantiates these concerns through the Aadhaar project of the Indian government. Aadhaar Project and the threat of a data breach: The Indian government launched the Aadhaar in 2009, as an optional Project to provide a 12-digit unique identification number to citizens purportedly for a more efficient social benefits delivery system. It is being constitutionally challenged in the Supreme Court of India on multiple grounds, the details of all of which are beyond the scope of this paper. The argument against Aadhaar pertinent to this paper is that big data stored by the government is not completely safe from being compromised by other states or non-state actors in the country and abroad. The database has had numerous breaches with tangible harms to citizens and hackers have attested to its vulnerability, even as the government continues to be stubborn in perpetuating the myth of its safety, which becomes easy to sell to an uniformed citizenry, not abreast with latest technological developments or the threats posed by them. India is currently reeling under a mandatory Aadhaar ecosystem, now that possession of an Aadhaar number has become a prerequisite for not just availing social benefits by the government but also for purposes, absolutely alien from the ‘Objectives and Purposes’ mentioned in the Preamble of the Aadhaar Act, 2016. It is being used as a compulsory verification tool for multiple purposes such as filing Income Tax returns after the introduction of Section 139AA in the Income Tax Act 1961 by the Finance Act 2017, in flagrant contravention of the core privacy principles of purpose limitation and consent, according to which data must always be collected with the prior consent of the individual and its use must be limited to the purpose for which it was sought. Personal data of citizens was coercively collected on the pretext of only plugging leaks in the welfare delivery system and by making access to these schemes conditional upon the possession of an Aadhaar number. This obliterated the voluntary character of the data collection. Now that the data has been collected, inquiries into whether it was consensually collected or the purposes on whose pretext it was sought, have been deemed outside the purview of the Committee of Experts headed by Justice B.N. Srikrishna, set up by the government to propose a draft data protection law for India. Thus, as the collection in the immediate run up to framing an actual law on data protection is exempt from the requirements of consent, there is no true ‘opt out’ available to the citizens and even where recognized, the burden of all consequences of withdrawal of consent would be borne by the citizens. Data Localisation compounds the problem instead of solving it The Committee of Experts has mandated ‘data localisation’ in its draft bill. As per Section 2(13) of the bill a “Data fiduciary” is defined as “any person, including the State, a company, any juristic entity or any individual who alone or in conjunction with others determines the purpose and means of processing of personal data.” According to Section 40 of the bill, all data fiduciaries are required to store at least one copy of the data physically in India, “either on a server or data center located in India”. This is being criticized widely, and justifiably so, for enhancing the surveillance potential of the state. However, it gives rise to another crucial concern that has escaped our attention. Storage of aggregate data in a mammoth database makes it vulnerable to cyber espionage at the hands of other, more tech-abled states and non-state actors without a corresponding remedy in international law. Given the acceptability and routine practice of cyber espionage in International Law, the Aadhaar database is likely to be compromised without the Indian government, much less the citizens even getting to know about it. Further, in the slight off chance that such knowledge is possible, the remedies in international law to deal with such a breach are either entirely absent or frightfully ineffectual. The bill leaves disclosure of breach of citizens’ data to the discretion of the Data Protection Authority (Section 32) and predictably, will be misused by Indian corporations and government to remain complicit in a conspiracy of silence, safeguarding their respective reputations. In the Global North, such as the U.S. and the European Union (Article 34, GDPR), the user’s legal right to know is predicated on set standards and not on discretion of executive authorities whose independence from the Central government is suspect, clearly incentive to not let information about such a breach see the light of day. Ironically, and in what would be an audacious claim in the Global North, data localisation’s purported objective is to prevent cyber espionage by foreign nations on the user data of Indians. However, storing a ‘copy’ in India does not preclude the existence of other copies abroad and therefore, does nothing to serve its stated objective. It is evident that this move is motivated only to make the personal data of citizens easily accessible by the Indian government without interference by foreign governments, more conveniently so as there exists a complete vacuum in the Indian legal framework regarding laws on surveillance reform. Data localisation may pose a national security risk in case data is allowed to flow unrestricted to countries that do not comply with Indian standards of data protection and the solution to this must not be storage of an additional copy of the data in India but restriction on cross border flows of data to countries with lax security norms, as is required by the EU GDPR. However, without going into the perils of surveillance and technological governance that continue to be so outside the imagination of law that there is no inclusion of corresponding safeguards, we discuss the susceptibility of the database to surveillance by foreign states. Vulnerability of Aadhar The Central government of India designated Aadhar as a protected system under Section 70 of the Purpose of Information Technology Act 2000. This characterization of the database as critical infrastructure is pertinent because international law recognizes the grave damage to a State’s security when the critical infrastructure is compromised. While the official position of the government is that there are suitable safeguards in place, and that the enrollment data is strongly encrypted, it is impossible to truly secure the entire Aadhar eco-system, which also includes the base infrastructure layer and the end user application layer, both of which are managed by non-UIDAI parties like ICICI bank and Paytm respectively. Indeed, reports of alleged internal breaches to the database already abound. Moreover, a WikiLeaks report has already hinted that the CIA has access to sensitive information in the Aadhar database. The point is simply that inform ation security cannot be seen in binary terms, i.e. secure vs susceptible, because it ignores precedents that testify to the rapidly evolving cyber-threats like the Stuxnet attacks on the Iranian nuclear facilities where the cyber attackers targeted air-gaped centrifuges via four previously undetected vulnerabilities. Moreover, this binary is careless in light of the huge investment potentially hostile states such as China, have been making on their cyber capabilities, including a dedicated special bureau under the intelligence department specifically for cyber intelligence. A notable instance of Chinese cyber espionage was the ‘Titan Rain’, launched against the United States defense network (including ‘secure’ targets like NASA, the Defense Information Systems Agency, the Naval Ocean Systems Center, and the US Army Space and Strategic Defense Installation) to gain confidential national security information. Clearly China is capable of developing the technology to break into secure India critical infrastructure, if it does not possess it already. Any hostile state with sufficient cyber capabilities can hack this highly centralized database which is meant to provide Indian citizens access to essential services, and thereby coerce the government to reconsider its military options by exploiting information or inflicting significant financial damage. Concluding Remarks: The primary goal of this paper has been to explain how cyber espionage challenges the order-maintaining systems we have relied on for years, and how this disproportionately impacts the citizens of India who have their data stored in a readily available single target without their consent and have no recourse either in domestic law or international law. We have demonstrated how the Aadhaar database, by creating a ‘map of maps’ has made intelligence gathering easier and the cyber-capabilities of potentially hostile states makes cyber espionage on the database a very real possibility. While the Indian government has tried addressing worries about breaches of personally identifiable information, it has conveniently ignored the strategic significance of cyber-espionage on a critical infrastructure. There remains an urgent need to create an enabling framework for the implementation of international law. About the Authors: Anupriya Dhonchak is a third year student of National Law University, Delhi. She has interned with Senior Advocate Indira Jaising and researched and provided updates on the Aadhaar proceedings at the Supreme Court. She is interested in public policy spanning criminal law and gender justice, rights based approaches to IPR and Competition law as well as constitutional theory and philosophy. Shubhangi Agarwalla is a third year student of National Law University, Delhi. At NLUD she has worked with the Legal Services Committee and has served as the Associate Editor of the NLUD Student Law Journal. Her professional interests include constitutional theory and philosophy, and TWAIL.