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Article by Elizabeth Lee On September 10, 2018, U.S. National Security Adviser John Bolton declared the International Criminal Court (ICC) “illegitimate” and “dead” to the United States. This aggressive stance towards the ICC stemmed in part from a request last November by ICC’s Prosecutor Fatou Bensouda to investigate war crimes committed by the United States during the Afghanistan war. While the United States is not a member of the ICC, Afghanistan is one. Consequently, claims of crimes committed on its territory can be brought before the Court. Bolton also threatened to place sanctions on and ban the ICC’s judges and prosecutors from entering the country, defending this as a move to protect U.S. citizens and allies from unjust prosecution. Moreover, Bolton announced that the United States will close the Palestine Liberation Organization (PLO) office in Washington D.C. due to concerns that the PLO was asking the ICC to investigate Israel. This is not the first time that the United States has questioned the legitimacy of the ICC. In 2002, George Bush refused to ratify the Rome Statute, which set up the structure of the ICC and served to hold accountable perpetrators of war crimes, crimes against humanity, and genocide. Foreign political heads have also questioned the validity of the ICC. Earlier this year, for example, Philippine’s President Rodriguo Duterte withdrew the Philippines from the ICC after the Court began examining a complaint against it for crimes against humanity. Such hostility to the ICC raises complex questions about its efficacy, given that the ICC has been encumbered by the self-interests of member and non-member states from its very inception.

Article by: Francesco Arreaga The Vice President of the United States delivered a speech on October 4, 2018, condemning China’s behavior as it relates to interference in U.S. elections, international trade, aggression in the South China Sea, human rights violations against the Uyghur minority, censorship, stealing intellectual property, persuading Latin American countries to no longer recognize Taiwan, and implementing a “social credit score” to reward loyal citizens and target disloyal citizens. The Vice President’s claims about China’s interference in U.S. elections echoes the claims that the President made at the United Nations on September 26, 2018. The issue, however, is that there is no substantial evidence to support this claim. What is astonishing is how the administration is willing to make unsubstantiated claims about China’s alleged election interference while at the same time dismissing the substantiated claims of 8 U.S. Intelligence Groups that accuse Russia of interfering in the 2016 U.S. election. Members of the Senate Intelligence Committee have requested that the administration corroborate their claims about China’s alleged interference in U.S. elections but have yet to receive such evidence. The Vice President, however, made a valid claim related to China’s human rights abuses. The United Nations issued a report by the Committee on the Elimination of Racial Discrimination on August 2018, detailing how China has initiated a mass detention program that targets ethnic Uyghurs and other Turkic Muslim minorities. The report outlines how “two million had been forced into so-called ‘re-education camps’ for political and cultural indoctrination.” According to some reports, the re-education camps are “programs that focus on psychological indoctrination — like studying communist propaganda and giving thanks to Chinese President Xi Jinping — as well as reports of waterboarding and other forms of torture.” It is imperative that the United States and the international community work together to prevent human rights abuses, especially when minority groups are targeted by states. Another troubling development in China that the Vice President described in his speech is China’s censorship and domestic surveillance program known as the “social credit score.” Kelsey Munro, a reporter for The Guardian, reports how the social credit score is described by some as an “Orwellian tool of social monitoring and political repression.” Kelsey Munro describes how this project is “an ambitious work in progress: a series of big data and AI-enabled processes that effectively grant subjects a social credit score based on their social, political and economic behaviour.” This new surveillance program will have both domestic and international impacts. Domestically, it can prevent people such as Lin Hu, a Chinese journalist that exposed corruption, from purchasing a plane ticket, buying property, taking out a loan, or travelling on the country’s top-tier trains. The program will also impact multinational corporations, NGOs, and social organizations in China. For example, American airlines and other carriers that want to do business in China and not have their social credit score impacted may consider acquiescing to China’s demand that Taiwan not be listed as a country. The United States faces various challenges in world affairs, especially as it relates to relations with Russia and China. Russia engaged in cyber warfare against the United States when it interfered in the 2016 presidential election and China is increasingly supporting international and domestic policies that are hostile to U.S. interests. It is imperative that the United States respond to these emerging threats through legislation, cooperation with allies, and engagement with international institutions.

Article by: Ishita Chakrabarty Introduction The Rome Statute allows the International Criminal Court (ICC) to exercise jurisdiction over the core crimes mentioned under Articles 5(1) (a) to (d) including genocide, crime against humanity (CAH), war crimes and aggression. However, the Statute overstates its effectiveness when it claims it is sufficient for the prosecution of ‘the most serious crimes of concern to the international community.’ The Statute relies upon State parties to adopt domestic legislation which would incorporate its provisions (substantive or complementarity legislation) and provide for its enforcement (procedural or cooperation legislation). The main feature of the ICC is its complementarity principle which ensures that States possess the primary jurisdiction over their own nationals or over crimes committed in their territories. It is only when the conditions mentioned under Article 17 (unable and unwilling genuinely to investigate and prosecute the matter) are satisfied, that the Statute allows the ICC to exercise secondary jurisdiction over the matter. This is the case irrespective of whether a State party follows a dualist or a monist regime. The outcome of these obligations has been an attempt on part of several State parties – including but not limited to Australia, Germany, United Kingdom, South Africa, Democratic Republic of Congo – to incorporate the provisions of the Statute into ICC implementation acts, to assert their primary jurisdiction. Generally, the States insert equivalents of the above-mentioned crimes within their domestic legislation. However, some states inserted crimes such as drug trafficking, human trafficking, diplomatic attacks and so on, into their definitions of the core crimes (See, SCHABAS, W. (2016). The International Criminal Court: a commentary on the Rome Statute, p. 185). The primary issue is that such an act can possibly amount to a negation of the principle of nullum crimen sine lege and strict legality which the International Court prides itself on. Ramifications of the transcription of additional crimes The Special Rapporteur in his fourth report submitted to the International Law Commission (1986) clearly stated that the characterization or criminalization of any crime is left open to international law and is independent of its implications under domestic law. The opinions rendered in cases like Prosecutor v. Hadžihasanović (para. 257) illustrate that the ICC also leaves the characterization of an offense to the national courts. Previous literature has widely discussed the ramifications of dilution of the Statute’s position. For example, Gillian Triggs in his reference to Australia’s incorporation of the ICC Act mentions how the domestic legislation mirrors the Statute’s elements of crime but also adds some additional criteria which may make it difficult to prove genocide before the national courts. However, the existing literature fails to analyze the consequences of States going further than what the Statue contemplates. The discussion assumes importance because even if human rights violators might be willing to admit to the commission of an ordinary crime, they would be averse to admit to the commission of more serious crimes, such as genocide or CAH. Consider this, an act which amounts to a violation of jus cogens is abhorred everywhere and is also subject to universal jurisdiction as opposed to ordinary international crimes. Here, terminology assumes importance. The heart of the core international crimes (maiming, torture, extermination and murder, cruel inhuman treatment) is known to be criminal everywhere even if one is not aware of the existence or the substance of international criminal law. However, can all crimes be rightly included within definitions of ‘core crimes’ when subject to State discretion? Moreover, doctrinal studies show that the Statute’s incorporation into domestic legislation is often done by those State parties that: a) are non-democratic, to give off an appearance of legal transitioning and b) by those who wish to use their domestic statutes to get rid of their internal adversaries. The ICC adopts the strict legality principle to protect the rights of a fair trial of the accused. For example, as opposed to its ad-hoc counterparts, the ICC strictly holds that the classification of an act as an “other inhumane act” will only hold when the act has not been subsumed by any other offense mentioned within the Statute and is a ‘serious’ violation of human rights that forms a part of customary international law. Additionally, the act must be of the same gravity as contemplated in the other offenses within Article 7 of the Statute. This departs from the law laid down in the Kupreskic chamber(para. 566) of the Yugoslavia tribunal with reference to an identical provision, where the chamber held that the violation of a set of “basic rights appertaining to human beings drawn from the sphere of international human rights law” is enough to attract criminality. The ICC’s approach is similar to the law laid down by the subsequent Stakic judgment (para. 721) that impliedly overruled the Kupreskic judgment by observing that human rights instruments contain formulations and definitions that are different to international criminal law and thus cannot be the basis of attaching criminal responsibility. In essence, to go beyond the standard contemplated by the Rome Statute would essentially transform the Statute into an all-embracing one. The Statute’s language must always be limited by its actual denotations. The only exception is under Article 10 of the Statute which allows for the criminalization of conduct in accordance with developing notions of international law. Of course, this has its own limitations, the international court would be guided by evolving customary international law and opinio juris of the state parties (See, Von Hebel & Robinson, Crimes within the Jurisdiction of the Court, in The International Criminal Court: The Making of the Rome Statute (Roy S. Lee ed. 1999)). Another important issue is how complementarity is worked out in cases where the transcription of crimes not otherwise mentioned in the Rome Statute is done within the domestic legislation. Triggs too considered the issue of States asserting jurisdiction in cases which would not meet the qualitative standards of the Statute were they to come up before the ICC. For example, the State parties during the negotiation stage refused to give effect to the proposal to include the responsibility of legal persons, since they were concerned that not all national legal systems recognized it. Accordingly, this would lead to the ICC assuming jurisdiction in contravention of the complementarity provision. Would the reverse not hold true? Conclusion The question is whether state parties would be in breach of their obligations under international law on the occasion of unnecessary expansion of the Statute’s language during incorporation within their domestic legislation. While expansion of domestic legislation does not violate the accused’s rights per se– for instance where the States attempt at broadening the definition of rape or New Zealand’s attempt to include nuclear weapons apart from conventional weapons within Article 8 (war crimes) – certain guidelines could be issued to states to prevent the politicization of crimes on incorporation. Where judicial interpretation would exceed beyond what is contemplated in the Statute, the accused could take the plea of violation of Article 21(3) of the Statute. The International Court should also come up with solutions to the complementarity dilemma when the State’s definition of core crimes is broader than its own. About the Author: Ishita Chakrabarty is currently in the fourth year of her study at Hidayatullah National Law University, Raipur, India. She holds a penchant for International Humanitarian Law and International Criminal Law and wishes to pursue them as her Masters subjects. She previously authored and published an article with the Queen Mary Law Journal and interned in the capacity of a student researcher with Justice Indu Malhotra, Judge, Supreme Court of India and at the Commonwealth Human Rights Initiative.

Articled by Talha A. Mirza, JD 2021 Summary: This article proposes national and international reconciliation and equal treatment for the Muslim Rohingya ethnic group, primarily through Myanmar’s acknowledgement and acceptance of responsibility for their plight, repatriation of the Rohingya diaspora, and their steady reintegration into Burmese society. This can be achieved through coordinated international diplomacy with organizations—ASEAN (Association of Southeast Asian Nations), OIC (Organization of Islamic Cooperation), and the UN (United Nations)—and states that currently house and assist refugees such as Indonesia, Malaysia, Thailand, and Bangladesh. Strategies include refugee identification, registration, and eventual relocation–not “deportation”–programs through the financial, governmental, and logistical support of the aforementioned states and organizations. Possible obstacles to these strategies include reluctance of ASEAN support due to this strategy violating ASEAN’s third fundamental principle of noninterferencein internal affairs of member states, opposition from the junta, and loss of domestic support for the NLD (National League of Democracy). Furthermore, failure leading to political turmoil and international condemnation can inflict great detriment upon Myanmar–such as increases in domestic insurgency and sectarian conflict–during this period of vast governmental reforms and transition. Background: Commonly referred to as “the world’s most persecuted minority”, the Rohingya–whose indigenousness is contested–are comprised primarily of inhabitants of the Rakhine (formerly Arakan) state. Some scholars claim the Rohingya migrated from Bengal during the period of British rule in Burma, and are also linked closely to Bangladesh through their shared religion of Islam and the Rohingya language – described as a distant variant of Bangla. However, many scholars also claim the Rohingya are indigenous to the Rakhine state and have inhabited Myanmar for centuries. Regardless, the plight of the Rohingya people has often been the center of the international human rights movement, with Myanmar drawing heavy criticisms for their contemporary inaction on the issue. The Rohingya have long been oppressed under Myanmar’s junta rule, with the military implementing action and policies described as “ethnic cleansing”. A critical point in the  history of this persecution is the 1982 Citizenship Law, which effectively rendered the Rohingya stateless by failing to recognize them as one of Myanmar’s 135 identified ethnic groups. Consequently, many entities, including the Human Rights Watch, accused Myanmar of crimes against humanity and the continuous denial of voting rights, citizenship, statehood, and other civil liberties. This has only made matters worse and escalated domestic and international tensions. Many innocent Rohingya were forced to flee, commencing the formation of the Rohingya diaspora abroad. Nevertheless, the internal struggles shifted to conflict between the Rohingya and other domestic ethnic groups, specifically the Rakhine State Buddhists. There has since been extensive violence, turmoil, and increased Rohingya flight, with tensions culminating most recently in the 2012 Rakhine State riots where several hundred Rohingya were killed and nearly 100,000 more fled from violence. These riots have launched the persecution of the Rohingya into the global spotlight, along with other recent atrocities such as: the discovery of Thai authorities funneling Rohingya refugees into human trafficking rings, the rampant Rohingya HIV/AIDS epidemic, and the state-sanctioned expulsion of Doctors Without Borders from Myanmar due to perceived favoritism towards the Rohingya. That being said, estimates by various organizations state that over 240,000 Rohingya are internally displaced and over 940,000 lack citizenship. Furthermore, there are over 120,000 Rohingya diaspora currently housed in Thailand, close to 500,000 in Bangladesh, and countless more in Malaysia and Indonesia, totaling approximately one-and-a-half million displaced Rohingya globally, and another one-and-a-half million “people of concern”, as defined by the UN High Commission for Refugees (UNHCR). Myanmar has received financial and logistical support from the UNHCR in the past, with the 2015 total budget at sixty-eight million USD. Furthermore, the European Commission for Humanitarian Aid and Civil Protection has also provided fifty-seven million euros from 2010-2015 for Myanmar, twenty-six million euros for Bangladesh from 2007-2015, and 325,000 euros for Thailand, totaling recent contributions of eighty-four million euros for the Rohingya Crisis. Another large international aid donor is US Agency for International Development (USAID), which provided approximately sixty-nine million USD during 2016 Fiscal Year, comprised of contributions from Office of US Foreign Disaster Aid (OFDA), Food for Peace (FPP), and Bureau for Population, Refugees, and Minority(PRM). The majority of this aid is diverted solely to emergency and immediate relief. Yet, the lack of long term infrastructural aid and relief is significantly detrimental to Myanmar’s refugee crisis. Large portions of this humanitarian aid and logistical relief cannot reach certain areas containing internally displaced Rohingya, as they lie outside of Burmese governmental control. These regions are controlled by ethnic insurgents and militias, such as the Kachin Independence Organization (KIO), which seized control of a large region along the Burma-China border following the breakdown of KIO negotiations with the government. Strategy: The main strategy should aim to implement national and international reconciliation for the Rohingya. There is no single solution to this issue; rather reconciliation must be approached from a variety of different angles. I recommend a four-step plan encompassing international coordination and cooperation, logistical calculation of the Rohingya refugee diaspora abroad, increased funding for Myanmar and other nations housing Rohingya, and an eventual shift towards the steady societal reintegration of Rohingya and increased investment in development of the Rakhine for all ethnic inhabitants. Firstly, Myanmar must call upon fellow ASEAN members–especially Thailand, Malaysia, and Indonesia–to hold a conference to ratify the UNHCR Refugee Convention and Its Protocol, as these nations, including Myanmar, can no longer deny basic fundamental rights and asylum for the displaced Rohingya. This is ideal to rally further international support, as it is a first step in the right direction towards acknowledging the problem of refugees and will make it easier to request more aid from the international organizations. However, calling upon other ASEAN members may present obstacles due to their strict adherence to the third fundamental principle of noninterference in other member states’ domestic affairs Additionally, Bangladesh must be convinced to attend said conference, as it is a key player in this crisis, and domestic and international pressure must be placed on Dhaka to work with Myanmar to draft a comprehensive shared-border refugee policy, which should include the immediate lifting of the Bengali ban on NGOs helping Rohingya refugees. Secondly, although I have provided several figures and estimates regarding the size and logistics of the Rohingya diaspora, they are merely that – just estimates. The UNHCR and respective leaders of each nation housing the diaspora should establish a report on the current number of refugees, in addition to how much funding and other non-monetary aid is needed for their repatriation. This will include establishing re-integration camps in Myanmar and working with other nations hosting Rohingya to expand their refugee camps and registration services. Thirdly, increases in funding must be requested from the UNHCR, EU, and USAID, specifically for Myanmar’s Refugee PILLAR 1 program, their Stateless PILLAR 2 program, and their IDP PILLAR 4 program. Bangladesh currently receives more than Myanmar for the PILLAR 1 program. Moreover, only two percent of USAID relief to Myanmar comprises allocations towards agrarian infrastructural development, which must be increased in efforts to expedite economic recovery and assist in the implementation of the final step of steady reintegration. It is quite probable that nations such as Thailand and Bangladesh will be reluctant to commit even more resources towards this strategy. If this occurs, increased public pressure–in coordination with UNHCR and OIC–could facilitate increased humanitarian relief funding and cooperation with said nations. The final step is long-term Rohingya societal integration, and increased development of the Rakhine state to quell accusations of neglecting other Rakhine ethnic inhabitants. This can be commenced by repealing the 1982 Citizenship Law and recognizing the Rohingya as one of the now 136 various ethnic groups in Myanmar, and by integrating civil liberties for the Rohingya, such as voting rights. Following repatriation, the use of relief funds should be shifted towards long term development in the region to finally achieve national and international reconciliation. At this point, Myanmar–given their history of success–should request more loans from the World Bank to harvest the abundant natural resources relatively unused due to poor distributive infrastructure. This would include creating a self-sufficient regional focus on fishing and further natural gas extraction, in order to promote prosperity for all in the economically disenfranchised Rakhine state.

Article by: Adnan Toric, JD 2021 A single man’s disappearance is simultaneously threatening international relations and poses an interesting question about international law. Jamal Khashoggi, a Saudi dissident reporter, entered the Saudi consulate in Istanbul, Turkey on October 2 and disappeared. Khashoggi entered the consulate to obtain documents for his upcoming marriage. Since his disappearance, there has been speculation that his whereabouts implicates Saudi royalty for murder. Khashoggi’s disappearance has incited international outrage from various individuals, organizations, and businesses. A single person’s disappearance has brought more attention to Saudi politics than years of unrest and thousands of deaths. Despite the political nature of Khashoggi’s life, his disappearance raises concerns about consulates and immunity. First, the consulate itself is in Turkey, which begs the question of why there was no immediate Turkish response. The 1961 Vienna Convention on Consular Affairs prohibits Turkish officials or officers from entering without express permission from the ambassador. There are various limits and restrictions on the host nation’s actions. The meaning of the rules for hosts and consulates has sparked debate over years, so there are not clear-cut rules for either party. Consequently, there are arguments to why immunity should have been lifted by Saudi Arabia sooner. The Vienna Convention only allows the sending State to waive immunity. Thus, Saudi Arabia had to waive immunity for its premises and diplomats in Turkey, an action that took two weeks to happen. Instances like Khashoggi’s disappearance incite questions about the power of consular immunity. While consulates exist to maximize diplomacy, they should by no means undermine justice nor promote extra-judicial killings. If immunity can be abused by a State to conduct illegal activities abroad, then the privilege can undermine common conceptions of justice. While it is doubtful that Khashoggi’s disappearance alone will bring about a change in consulate relations, it may bring about a more thoughtful discourse about consular immunity.

Article by Min Soo Kim On November 5th, the Korean Marine Exchange Program (KMEP), consisting of about 500 United States and South Korean marines, initiated small-scale military drills near Pohang City in North Gyeongsang Province. North Korea’s official party newspaper, the Rodong Sinmun, said these military activities violated the September 19th inter-Korean military agreement to eliminate the danger of war and resolve hostile relations. This agreement was ratified by South Korean President Moon Jae-In on October 23rd. It contains “the most significant changes in decades to the inter-Korean security environment,” including pledges to cease various military exercises along the Military Demarcation Line. South Korea brushed off the claim that it had violated international law by ignoring this agreement and said that the drills were defensive in nature and involved “small units under the size of a battalion.” Shortly before this incident, the 50th US-ROK Security Consultative Meeting (SCM) took place on October 31st, between the US Secretary of Defense James Mattis and ROK Minister of Defense Jeong Kyeong-doo. The United States supported the aforementioned inter-Korean agreement, evidenced by the agreement between the defense secretaries to “pursue a joint evaluation of a military exercise schedule for 2019 and to adjust the exercise schedule in a manner that seeks to maintain capabilities and readiness while reducing the scope, size, and public visibility of some exercises.” The purported goal is to maintain readiness in a way supportive of diplomacy and less politically provocative to North Korea. However, as Scott A. Snyder points out, the lack of action on the part of North Korea to “pursue denuclearization negotiations” despite efforts to reduce conventional tension may paradoxically reinforce the “rationale for continued U.S. commitment to extended deterrence on the Korean Peninsula in the face of a continued North Korean nuclear threat.” This brings us back to the recent issue over joint US-ROK military drills mentioned at the outset of this blog post. Indeed, on Nov 7th, the meeting between Mike Pompeo and Kim Yong Chol scheduled for the 8th, was cancelled.

Article by Shayan Ahmed. The following is a continuation from the previous article that had been published on the blog which can be found here which needs to be read first in order to get a better understanding of this article. Owing to the likelihood of the 2008 Agreement being of such a nature as to be considered by the ICJ, the following issue emanates: Whether Art. 73 of the Vienna Convention on Consular Relations 1963 (VCCR) can allow for a denial of rights through a subsequent international agreement (In this instance the 2008 Agreement) Art. 73 of the VCCR allows recourse to States parties to conclude agreements that supplement, extend or amplify the provisions of the Convention. The issue in this particular case is whether the denial of consular access falls within the purview of the aforementioned passage. Before discussing this, it must be noted that at the stage of the Indication of Provisional Measures, the ICJ did not deliberate upon this point as it was not required to do so at such a preliminary stage. However, the same is likely to be brought into question in the oral hearings. Herein, the provision will be interpreted in light of the Vienna Convention on the Law of Treaties, 1969 (VCLT). Interpretation of the provision through the VCLT Art. 31 of the VCLT is the cornerstone when it comes to the interpretation of a particular provision of a treaty. However, prior to applying it to the VCCR which preceded the VCLT, Art. 4 of the VCLT needs to be circumvented. The provision prohibits the retroactive application of the VCLT and by extension it would not be applicable to the VCLT unless the provision had a customary status at the time.  To that effect, its status as custom was recognized as such by the ICJ in the Kasikili/Sedudu Island Case. Whilst applying this provision, it must be noted that there are a multiplicity of factors that are to be taken into account in reaching an interpretation. However, in the interest of keeping this article concise and to the point, I will restrict myself to the factors that have a more substantial bearing on the eventual interpretation of Art. 73 of the VCCR. Textual Interpretation under the VCLT Starting off with the preference given by the ICJ to textual interpretations (as also stated through the use of the words "ordinary meaning" under Art. 31(1) VCLT). If the textual interpretation of a treaty is clear (Oil Platforms Case), the Court prefers to not look to the supplementary means of interpretation. The words of Art. 73(2) of the VCCR are of such a clear nature, in my opinion. Perusing the words used, we see that the use of the words "confirming," "extending" and "amplifying" in addition to the word "supplementing"—the latter being a word Pakistan strongly emphasized upon during the proceedings—when seen, in their ordinary meaning, dictate that any dilution whatsoever of rights under the VCCR are not permitted through Art. 73. One can also look to other conventions which adopt the same terminologies to ascertain what the words entail. For instance, Art. 28 of the CoE Extradition Convention, 1957, which states that, "…parties may conclude between themselves bilateral or multilateral agreements only in order to supplement the provisions of this convention…." The same wording is also seen in Art. 26(3) of the European Convention on Mutual Assistance in Criminal Matters. Additionally, Art. 11(7) of the Rome Convention for the Suppression of Unlawful Acts, 1988, lays out the same restrictions vis-à-vis extradition albeit without using the word "supplementing." Subsequent Agreements as a means of interpreting Art. 73 of the VCCR Art. 31(3)(b) of the VCLT allows recourse to Subsequent Agreements. The same was defined best in the Competence of the ILO to Regulate Agricultural Labour where it stated "if there were any ambiguity, the Court might, for the purpose of arriving at the true meaning, consider the action which has been taken under the Treaty." Starting off with the practice of the United States, a country against whom three cases were instigated pertaining to Art. 36 of the VCCR. The Consular Convention between the USA and Belgium is cited by Geraldine Alfino wherein he makes a reference to Art. 73 to state that in cases of conflict between the provisions of the VCCR and the Convention, the VCCR would prevail. Furthermore, in a letter from Attorney Advisor Mitchell to Consul Veasy, British Embassy (July 17, 1968) the US State Department indicated that where no conflict exists, the agreement allowing greater privileges will prevail. Very recently, the interpretation accorded to Art. 73 of the VCCR by not just the United-States but also India came to light through the Agreement Pertaining to Diplomatic and Consular Relations wherein Art. 10 makes an explicit reference to Art. 73 of the VCCR and states "… in the case of a conflict, the provision more favourable to the sending State shall be applied." In another example, Art. 8 of the 1985 Consular Convention between the UK and Egypt states "…immunities and privileges not less favourable than those… under the Vienna Convention on Consular Relations…." Interestingly, however, s.3 of the Consular Relations Act, 1968, of the United Kingdom leaves open the possibility for agreements that can reduce privileges and immunities. The Oxford Commentary to the VCLT also cites examples of three agreements which are in consonance with the aforementioned interpretation of this provision: firstly the agreement between Canada and China, (1997), the agreement between Australia and China, (1999) and lastly, the agreement between Austria and Czechoslovakia, (1979). Hence, not only in terms of textual interpretation but also through subsequent agreements we see that the meaning of Art. 73 of the VCCR remains consistent in such a way so as to warrant no dilution of consular access. Utilization of the Travaux préparatoires Finally, in accordance with Art. 32 of the VCLT (also of a customary status) and following the case of Territorial Dispute (Libya/Chad), the ICJ has had and can have recourse to the Travaux préparatoires but only as a means to confirm a meaning that is already clear. The VCCR was preceded by a multiplicity of consular agreements and the reason for drafting the VCCR was to bring uniformity to the scattered regime of consular law. More so, India along with five other States, proposed the provision that came to be known as Art. 73(2) of the VCCR. The reason behind this proposal was to, inter alia, bring on the same footing all the States that would become party to the Convention. In summation, the interpretation of this provision completely supports the premise that the arguments advanced by Pakistan vis-à-vis Art. 73 of the VCCR permitting a denial of consular access may be rejected by the Court—if advanced again—as it appears that the provision only allows for favourable treatment and does not allow for an outright denial of consular access. Lastly, it will indeed be interesting to see how the Court deals with these issues especially in relation to the conduct of an alleged spy, something which is not regulated properly in International Law governing peacetime. About the Author: Shayan is currently working as a Research Associate at the Research Society of International Law. He graduated with a First Class in his LLB (Hons.) from the University of London. He has done internships at the International Committee of the Red Cross and the Ministry of Foreign Affairs Pakistan. He has also been published as part of the Research Guide for the International Court of Justice by the Peace Palace Online Library. He can be reached at shayanahmedkhan@outlook.com

Article by Francesco Arreaga Democratic governments must strive for peace and the preservation of freedom but must also be ready to counter provocations by nation states with an expansionist foreign policy. The strategy of appeasement did not work with expansionist authoritarian regimes prior to WWII and it will not work today. The North Atlantic Treaty Organization (NATO) is an imperative transnational military alliance that must adapt to the emerging threats of the 21st century. HISTORY OF NATO NATO was “created in 1949 by the United States, Canada, and several Western European nations to provide collective security against the Soviet Union.” Currently, NATO has 29 members and membership is open to any European State that can further the principles of the Treaty and assist with the security of the North Atlantic Area. Collective organizations can often be ineffective and unsustainable due to the differing interests and ambitions of their members. NATO, however, is unlikely to suffer from this problem because respect for the values of democracy, freedom, the rule of law, and security, binds all of its members together. As the Preamble to the Treaty asserts, the members are “determined to safeguard the freedom, common heritage and civilization of their peoples, founded on the principles of democracy, individual liberty and the rule of law.” Although the 29 nations that compose NATO are shaped by different histories and cultures, all of them are connected through a deep respect for fundamental human values that promote peace and prosperity. Article 5 of the North Atlantic Treaty provides NATO its power to deter non-member states from militarily confronting any member of NATO by establishing that an attack on one is an attack on all. This makes foreign adversaries think twice about attacking a member of NATO because if they decide to engage in a military confrontation, they are simultaneously making a choice to start a military conflict with 28 other nations. The collective self-defense mechanism outlined in Article 5 has only been invoked once, in response to the terrorist attacks of September 11, 2001 against the United States. NATO has also taken other collective defense measures, including responding to conflicts in Syria and in the wake of the Russia-Ukraine crisis. CYBERATTACKS & THEIR THREAT TO NATO’S DETERRENCE CAPABILITIES Cyber-security threats in the 21st century pose a challenge for all nations and threaten the effectiveness of NATO’s power to deter cyber-attacks. During the 2018 Cyber Defense Pledge Conference, NATO Secretary General Jens Stoltenberg remarked how in 2014, “NATO leaders agreed that a cyber-attack could trigger Article 5” of the founding treaty. The Secretary General also described how in 2016, “NATO leaders designated cyberspace as a ‘domain’, alongside land, sea and air;” while also agreeing to a Cyber Defense Pledge. These important steps show that this transatlantic military organization is committed to addressing cyber-security threats. The issue, however, is that NATO undermines its resolve to counter cyber-security threats as well as its deterrent capabilities by not invoking Article 5 when an adversary launches cyber-attacks against members of NATO. In recent years, Russia has attacked the United States, Great Britain, and France via cyberspace, in an attempt to infringe upon the political sovereignty of these nations. By political sovereignty, I am referring to a nation’s fundamental right to independence in its internal affairs. In November 2017, the Prime Minister of the United Kingdom accused “Moscow of meddling in elections and carrying out cyber espionage.” In addition, a report by Democrats on the U.S. Senate Foreign Relations Committee describes how Russia may have influenced the result of the UK’s Brexit referendum in order to advance an anti-EU agenda. A brief by the Center for Strategies & International Studies outlines how Russia unsuccessfully attempted to interfere in the 2017 French presidential election. Finally, an indictment filed by Special Counsel Robert Mueller in 2018 details how several Russian military officers interfered in the United States’ 2016 presidential election. The infringement upon the political sovereignty of at least three of NATO’s member states by a foreign adversary should have been sufficient to invoke Article 5 of the North Atlantic Treaty. These cyberattacks were not just a usurpation of national sovereignty but were also an attack on the very principles that members of NATO agreed to protect: democracy, individual liberty, and the rule of law. By not taking action under Article 5 to collectively counter these cyberattacks, NATO has undermined its power to deter future cyberattacks from any adversary. As such, any state actors may be more willing to initiate cyberattacks against NATO member states because they will no longer have to worry that an attack on one is an attack on all 29 members. During these turbulent times in world affairs, NATO must stand strong and be willing to act to counter the emerging threats in cyberspace, or risk losing its power to serve as a deterrent to attacks in the 21st century.

Article by Alix Vadot Companies are struggling to address citizens’ concerns relating to data privacy and ensuring that their users are seeing their data protected and trusting their platforms. Some of the largest tech companies, including Apple, Google, and Facebook, are facing particularly important challenges in this regard. In December, the Australian government passed a law to facilitate governmental access to user data by compelling companies to hand it over. The UK passed a similar law, and India is considering a law that would grant authorities access to data from WhatsApp messaging data. The U.S. has not shown signs of implementing such laws but has not yet given up its three-year ongoing battle to gain access to encrypted devices such as Apple’s. Companies are also fighting to maintain user privacy and ensure individuals’ data is not freely relegated to the government by giving the government the ability to constantly monitor private conversations. Meanwhile, governments worry that allowing for encryption of private data by these companies may lead to a dangerous world, in which governments are unable to adequately perform their policing work and prevent attacks or convict criminals. Companies fear the ban on data encryption will instead create a back door for hackers who could make malicious use of this data: companies including Facebook (which owns WhatsApp), Apple, Google, Twitter and Microsoft, filed comments with the Australian government warning of this potential effect.

Article by Zay In what could be construed as a brazen acknowledgement of corruption’s structural embeddedness in the Fédération Internationale de Football Association (FIFA), the global governing body for the world’s most popular sport, the organization reduced the scope and enforceability of corruption in the latest edition of its internal code of ethics. This revelation comes in the wake of criminal charges levied by multiple nations against a host of FIFA’s top officials and affiliates, raising questions about the susceptibility of non-corrupt football (“soccer”) federation and national association members to become complicit in the organization’s patterns of corruption, and, inversely, about the role of individual nation-states in preventing and enforcing against its international corruption schemes. FIFA’s governance structure takes the form of a one member, one vote model that is also popular in other international governing bodies. In addition, FIFA’s annual revenue, which was projected to reach over $4 billion in the 2018 World Cup year, is distributed evenly to members irrespective of size or population. In his article on FIFA’s “non-intervention” policy, which is designed to protect the “autonomy of sport” from government interference, Marquette University Law Professor J. Gordon Hylton argues that the non-intervention policy has been invoked under recent leadership to prevent oversight of FIFA corruption by member states on the threat of having their federations or national teams suspended from competition. A small nation unlikely even to qualify for the World Cup, much less host it, potentially stands to gain more from selling its vote or engaging in bribery than from its minimal likelihood of a participatory role in international competition. Conversely, nations whose robust systems of justice or commitment to democracy better equip them to combat corruption correlate with those who hold higher interests in competing in or hosting FIFA-sponsored tournaments. Such an imbalance in incentives thus discourages “intervention” against corruption by those entities that are best equipped to confront it. What internal compliance mechanisms exist to promote accountability within FIFA? Regulatory expectations are outlined in FIFA’s code of ethics, with violations referred to the ethics committee. The prior (2012) version of FIFA’s code of ethics identified both bribery and corruption as punishable offenses, exempt from the 10-year statute of limitations that governed other offenses. The revised (2018) version, however, accounts for only the specific offenses of “betting, gambling or similar activities” and “bribery, misappropriation of funds and match manipulation,” all of which are now subject to the 10-year statute of limitations. In addition, the new code of ethics establishes a “defamation” offense prohibiting “public statements of a defamatory nature towards FIFA and/or” its officials, supplementing the non-intervention policy in deterring whistle-blowing and enforcement against corruption. A forty-seven count indictment brought by the United States District Court for the Eastern District of New York (EDNY) against fourteen current and former FIFA officials includes reference to an incident whereby one FIFA official attempted to report payment of a $40,000 bribe promoting another official (Co-Conspirator #7)’s campaign for the FIFA presidency to a higher-level official (Co-Conspirator #1). Co-Conspirator #1 himself accepted the bribe and voted in support of Co-Conspirator #7’s candidacy, raising skepticism as to the efficacy of the ethics committee’s power to curb corruption. The 2015 indictment, developed over the better part of a decade, pertains to events beginning in 1991 and references activity as far back as 1983­­­­­­­­­. If FIFA’s internal accountability mechanisms are lacking, what is the appropriate authority to police corruption and misconduct? The United States received criticism from notables such as Russian President Vladimir Putin for its effort to bring corrupt FIFA officials to justice. However, even the U.S. Supreme Court itself has weighed in on the limits of U.S. jurisdiction to enforce corruption-related offenses internationally under RICO, the Racketeer Influenced and Corrupt Organization Act which is central to the U.S. government’s case against the fourteen officials. (Besides racketeering, the indictment also charges money laundering and wire fraud.) Whether U.S. jurisdiction over these claims will be considered valid, which may turn on the extensiveness of defendants’ reliance on U.S. banks and financial institutions to effect their bribe payments and fraud, remains to be seen, although the Second Circuit (to whose authority the EDNY is subject) has previously upheld prosecutorial jurisdiction over certain foreign violations. The nature of the D.O.J’s charges, which are directed against individual FIFA officials (with notable omissions), also sheds light on a government’s limited ability to address systemic corruption that pervades FIFA at an organizational level. In fact, even apart from the problem that no obvious process exists to recompense the victimized national federations and governments to whom laundered or embezzled money rightfully belonged, FIFA itself may be eligible for a cut of the forfeitures guilty individuals will be required to pay. While cooperation between governments, including the U.S., Switzerland, France, Brasil, and others, evidences the possibility that the international community may seek to hold FIFA accountable to a higher standard of integrity going forward, the most appropriate means of doing so is not entirely clear. The parallel international governance infrastructure that FIFA commands earns annual revenue surpassing that of dozens of small nations, and is ripe for exploitation. Yet the organization lacks any sort of operative internal enforcement mechanism to check corruption. In light of the global community’s extraordinary participation rate in FIFA, the time has come to demand a functional enforcement system against corruption and reclaim the spirit of the beautiful game.

Article by Medha Patil INTRODUCTION “The ocean is torturing us,” said Pushpo Rani Das, 28, a mother of three who has had to move her home four times to escape storm surges around Ali Akbar Dial, a collection of disappearing villages on the southern tip of the island in Bangladesh. “We can’t stop it. Water enters my house in every high tide, especially in the rainy season.” Rani fears that soon her family will have to leave the island altogether. Pushpo Rani Das is one of Bangladesh’s millions of coastal people who are being uprooted because of rising sea levels. Bangladesh has emerged as one of the most vulnerable of nations, severely affected by the effects of climate change and global warming. What renders Bangladesh so vulnerable are its singular features: geographical location, geo-morphological conditions, low elevation from the sea, density of population, poverty and remarkable dependence on nature, as well as its resources and services. Its low elevation, high population density and inadequate infrastructure all put the nation in harm’s way, along with an economy that is heavily dependent on farming. And the nation’s natural vulnerability to extreme climate has extracted an unforeseen effect: forcing the general population to resort to migration as an adapting system.  And now, as climactic conditions worsen, more and more Bangladeshis are being driven from their homes and land, exposing them to recurring and extreme risks. Sea level rise, storms, cyclones, droughts, erosion, landslides, flooding and salinisation are already displacing large numbers of people. About 28% of the population of Bangladesh lives on the coast, where the primary driver of displacement is tidal flooding caused by sea level rise. It is conjectured that with even one-meter rise in ocean level in the low-lying coastal districts of Bangladesh will render the country substantially more helpless, driving it to the brink of unprecedented catastrophes. REFLECTIONS OF ENVIRONMENTAL CONCERNS ON HUMAN RIGHTS Bangladesh tends to suffer the outcomes of climate change not only because of its geographical characteristics but also owing to its limited resources to adapt to such huge changes. Across coastal Bangladesh, sea-level rise, exacerbated by the conversion of mangrove forest for agricultural production and shrimp farming, has resulted in the loss of hundreds of thousands of acres of mangroves. Consider the statistics. The number of tigers in the Sundarbans has plummeted drastically. So much so, the World Wildlife Fund predicts that the tiger may become extinct. The burgeoning loss of mangrove habitat, especially in the Sundarbans, also means that Bangladesh will lose one of its last natural defenses against climate change-induced super-cyclones. Farming, the backbone of the Bangladeshi economy, is severely affected and crops harmed by rising salinity are doubly in danger from the resultant soil debasement. Numerous regions have just endured extensive yield losses and critical drop. The nation’s climate refugees, mainly farmers and fishermen, are moving into the slums of the country’s two biggest urban cities, Dhaka and Chittagong. As conditions deteriorate, the limits of these territories to take in more population are nearing the end. This sad reality offers restricted choices to those uprooted. These persistent inhabitable conditions compel the Bangladeshi people to move away from their homeland in search of a place where their basic human rights are protected. Bereft of the basic necessities of healthy living, and surrounded by extremely inhospitable conditions, Bangladeshis are forced to leave their native place, triggering massive displacement and surge in the refugee population. Thus, the devastating trajectory of climate change not only deprives them of their land but also their identity, culture and community intrinsically linked with the land. What, however, is worse is that these victims of natural disasters also fail to find much relief at official levels. For, the grim reality is that these “climate refugees” do not find any legal recognition in the Refugee Convention of 1951, leaving them bereft of any legal protection or rights within the ambit of international law. The number of climate change refugees has been steadily increasing in many parts of the world. There is clear proof of this. Yet, the United Nations Conference of the Parties (COP21) held in Paris in 2015 (Paris Agreement) paid next to no consideration to this developing human crisis. Instead, it focused to a great extent on carbon discharge decrease targets and ecological issues. The subsequent COP22/Marrakesh (Morocco 2016) and COP23 (Bonn, Germany 2017) conferences similarly ignored the issue. It was, however, the 2018 COP24 held in Katowice, Poland that made a noteworthy and unequivocal move to acknowledge the rights and needs of “climate displaced people” and offered assistance to the climate refugees. At the same time, it is worth considering some bottlenecks in the way of solutions. For one, there is clearly absence of enough information at the community level for better understanding of the relocation dangers people face and choices accessible to them with the goal of creation of some effective solutions. The UN Global Compact may help people evacuated by climate impacts. These strategies, however, are in their earliest stages and execution might be too complex to even think about resolving the scale and extent of the issues people and communities are facing on the ground in Bangladesh today. As previously noted, activities and responsibilities along these lines at the worldwide dimension must be coordinated and upheld by national and local level responses in lessening displacement and migration with regards to environmental change. It is anticipated that, by 2020, from 500 to 750 million people will be affected by water stress caused by climate change around the world. Sea levels will rise 2% in the year 2020, 4% by 2050 and 17.5% by 2100. It will severely affect agriculture, hamper food security, create health hazards, and aggravate poverty. CONCLUSION In the light of the existing fact, we can infer that there arises a need to juxtapose environmental law with human rights law and form a unified legislation to address the specific issues prevalent in such states and provide remedies for it. When any environmental problem arises, human rights of the people in consequence are threatened to a large extent. Thus these two branches of law are inter-linked with each other. From the devastation it causes, it is clear that many legal remedies can be considered to provide different kinds of relief to victims. For instance, there should be a “right to reparation” necessarily provided in the legislation where the affected countries would be entitled to seek assistance in addition to monetary relief to help them revert back to their normal conditions. Furthermore, the victims should be provided the opportunities of education, jobs and social security which would offset the effects of devastating environmental challenges. As an immediate measure, remedial action should be based on prioritisation of needs of the vulnerable communities. In Bangladesh, a strong national adaptation plan is under execution, which includes methodologies of adaptation as the focal element to climate change. Uprooting and displacements connected to climactic vagaries are already occurring in Bangladesh. Therefore, movement, migration and resettlement must also be accepted as pivotal reactions to climate disasters, especially when planned preventive resettlements of populations are jeopardised by disasters.  Or else, the climate change refugees issue will stay camouflaged between the lines of the present national adaptation policy. In light of the above mentioned suggestions, effective deterrence should be established to save the afflicted from their plight. Without the essential necessities of healthy living, these individuals will be compelled to leave their local place, triggering huge relocation and increment in the refugee population. Mankind’s common concern should be focused on maintaining a climate sustainable habitat for all the species on earth.

Article by Nick Reem On Thursday, tensions remained fraught in Kashmir, the disputed Himalayan region on the border between Pakistan and India, when a grenade detonated at a crowded bus station in Indian-controlled territory, killing one person and wounding others. Pakistan and India, along with China, have long asserted disputed claims to the region. Pakistan and India escalated the long-dormant conflict to its highest levels in years beginning on February 14,  when a suicide bombing in Indian-controlled Kashmir killed 40 Indian troops. In response, India placed blame for the attack on Pakistan and responded by crossing into sovereign Pakistani territory to initiate a “pre-emptive strike” against militants that India blamed for the bombing on February 26th. This airstrike was the first time military forces crossed the de facto border since the 1971 war between the countries. Responding to the incursion into its territory, Pakistan shot down Indian aircraft in retaliation, capturing an Indian pilot who ejected from his plane. However, in a symbolic peace gesture, Pakistan returned the pilot to India after two days of detaining him. While this conciliation de-escalated tensions, both countries continued exchanging artillery fire across the border, leading to numerous deaths on both sides last week. With both countries being nuclear powers, the fallout from any potential war could be catastrophic – former United States President Bill Clinton once described Kashmir as “the most dangerous place in the world.”  Time will tell if further incidents exacerbate a still-tense situation.