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Article by Aaron J. Cheung, I. Introduction to the Cyber Issue The Central Intelligence Agency (CIA) Worldwide Threat Assessment recognized that the increasing cyber capabilities of other state actors could be used to surveil, attack, steal from, and influence the U.S. These cyberattacks have the potential to threaten government institutions and target major corporations, harming large groups of people. Al-Qaeda and ISIS have used social media to facilitate terrorism, and Russian intelligence officers hacked the Democratic National Committee (DNC) to interfere with U.S. elections in violation of a federal computer-intrusion statute. In 2000, a fifteen-year-old Canadian citizen attacked and disabled several U.S. based websites, including Amazon, CNN, Dell, eBay, and Yahoo!, causing an estimated $1.7 billion in damages, and in September 2019, Equifax settled with the FTC for $425 million following a data breach that disclosed personal information of 147 million people. International law offers little settled guidance on how to address these incidents. Legal frameworks dealing with cyber issues tend not to address cybersecurity directly. Instead, a combination of rules and norms governing other aspects of international relations are sometimes applied. As a result, international law fails to provide an overarching and consistent framework for handling cybersecurity issues. Furthermore, the asymmetric nature of cyber warfare, i.e. the unpredictability and undetectability of cyberattacks, combined with the difficulty of identifying attackers, complicates retaliation, enforcement, and prosecution. When governments begin to create international cyber law, as they may soon do, they should seek to solve two problems: the lack of legal guidance on how state actors may retaliate, seek relief, or recover damages; and a similar challenge for non-sovereign entities. For this Article, I will assume that retaliation, relief, and recovery are generally normatively and positively desirable. The following two sections of this Article will provide a brief overview of the most critical ways that international (and domestic) laws fail to address these problems. The Article will then describe how a framework to create multilateral institutions may help resolve the unpredictability and undetectability of cyberattacks, as well as complications inherent in enforcing cybersecurity laws. II. Establishing an International Cyber Law Framework The Proper Retaliation, Relief, or Damages for State Actors Created through a Piecemeal Legal Framework: The same laws governing conventional warfare generally apply when cyberattacks against states or institutions amount to war. Once a war breaks out, states may theoretically retaliate with standard forms of traditional warfare, including conventional (or nuclear) uses of military strategies and weapons, in combination with appropriate cyberattacks. However, many disagree about when states should exercise the law of war. Since cyberwarfare is relatively cheaper than conventional warfare and may cause temporary rather than permanent harm, no explicit rules have emerged as to when a state may retaliate using conventional weapons. Yale Law Professor Oona Hathaway identified three prominent theories that illustrate different interpretations about when war is justified. Under an instrument-based approach, only cyberattacks that use military weapons may escalate to war. With a targets-based approach, a cyberattack must imminently and sufficiently harm a critical target. An effects-based approach measures the “gravity of effects” based on the harms that may result. If a cyberattack does not amount to war, then a hodgepodge of other rules, such as those governing countermeasures, treaties between countries or among multilateral organizations, and domestic criminal or civil laws, can regulate cyberspace. The applicable rule depends on the circumstances of the cyberattack, and in many cases, no rules apply. For example, an attack aimed at disabling some system may warrant retaliation under international countermeasure norms to prevent the attacker from repeating the same offense or to take down a similar system. On the other hand, according to Oona Hathaway, cyberattacks on communications systems might fall under international telecommunication agreements, and cyberattacks on airplanes may fall under international aviation laws. Sometimes, domestic laws criminalize cyberattacks conducted by foreign actors. For example, Mueller found evidence that Russian agents violated the federal computer-intrusion statute. Even though they violated U.S. law, the agents will unlikely face prosecution anytime soon by avoiding U.S. jurisdiction. Under the current framework, cyberspace does not have its own set of relevant laws but instead is loosely governed when cyberattacks escalate to warfare, violate the law in a related field, or violate domestic statutes. Businesses and People (non-state actors): Laws regulating cybersecurity for non-state actors sometimes leads to strange results. Domestic laws do provide for civil actions in response to cyberattacks. However, they often do not grant adequate relief. In the 2017 Equifax breach, hackers unlawfully accessed personal data due to a vulnerability that Equifax failed to patch. Although Equifax may be partly responsible for failing to take adequate measures to protect that information, it was an affirmative act of the hacker that caused the harm. Equifax had to pay millions of dollars and provide even more in services as a punishment for the hacker’s crime. Equifax found itself in the unenviable position of suffering financial losses they were unable to recover as a result of the harm caused by the hacker’s actions. Even if they could find the hackers, they would unlikely be able to recover much through civil action. Unlike robberies, in which the law will work to find the perpetrators and undo the harm (or, insurance may cover it), victims of cyberattacks are unlikely to obtain compensation equal to the damages suffered. While states have the resources to identify attackers, criminally prosecute perpetrators, and retaliate, non-state actors generally cannot respond in the same way. Victims gain little from pursuing civil actions whose potential rewards are outweighed by the costs, as is often the case. If a foreign actor commits the cybercrime, non-state actors may have even more trouble identifying the offender and holding them responsible. How can such issues be addressed through international law when the offender comes from a foreign State? States can recognize an obligation to protect their citizens from significant cyberattacks. In many cases, non-state actors belong partly or wholly to a state and receive entitlement to adequate protection from outsiders. Under several traditional theories about state formation, such as social contract formulations, the state may be obligated to protect its people from the cyber equivalent of foreign invasion as a form of a common good. By using the force of the state to find perpetrators of cybercrimes targeting its citizens, states can fulfill a utilitarian purpose in deterring cybercrimes and finds justice by prosecuting criminals. Institutions: As a final matter, institutions should be established multilaterally to share information and identify perpetrators of cyberattacks. These institutions should determine when various actors can be charged with violating a law or norm based on agreed-upon rules. For example, they may determine what sort of financial consequences, through fines or sanctions, a state may receive for launching a cyberattack. If they do not wish to take certain sovereign powers away from states, institutions may alternatively create new rules that provide standards for just retaliation. The most critical tasks are to address the unpredictability and undetectability of cyberattacks, and to increase the capability of state and non-state actors to identify offenders. The most persistent problem with a cyberattack, and the reason why it poses such a significant threat, is the asymmetry of power in which a hidden cybercriminal may, at their discretion, attack systems at any time, with little warning, and often in an unknown way. Thus, institutions should do all they can to identify and prosecute wrongdoer, because doing so will increase the overall costs for someone to commit such a crime. A possible way to achieve this would be to coordinate efforts and information from several states. This would facilitate a sense of shared responsibility to investigate and prosecute cyberattacks, further increasing the ability to find potential wrongdoers. This type of agreement would decrease what makes cyberattacks so asymmetrically advantageous. III. Conclusion Domestic and international cyber laws fail to adequately provide a framework for state and non-state actors to identify attackers and receive relief. States targeted by cyberattacks need to navigate a complex web of loose rules to determine what they may or may not do. Non-state actors encounter even more difficulty recovering for the harms they suffer, and this problem will likely become exacerbated as international cybercrimes increase in frequency. These problems should be addressed through the creation of international rules and norms.

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.