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

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.