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Article by Sheridan Choi On March 8th, thousands of people around the world celebrated International Women’s Day, a day that has acknowledged accomplishments by women for more than 100 years. Some led peaceful demonstrations while others marched to protest feminist issues, including gender pay gap, abortion rights, and femicide. In Brazil, people organized on the streets of nine cities to call for an end to violence against women. In Spain, women took to the streets wearing purple, the color of women’s rights protestors, to campaign for gender equality, and around 6 million people went on strike in support of equal pay for women. In Turkey, hundreds rallied to demand the release of Syrian women in jail, but were broken up when police fired tear gas into the crowd marching at the edge of Istanbul’s Taksim Square. In Sudan, President Omar al-Bashir ordered the release of women detained for their participation in anti-government protests. People have protested against Bashir since December 19th, demanding he step down. The International Criminal Court charged Bashir for planning genocide in the Darfur region. An estimated 150 women are in prison for participating in anti-government demonstrations, and hundreds gathered to protest under the theme of International Women’s Day.

Article by Alix Vadot Though the negative impacts of environmental pollution on people’s physical and mental health are well-known, noise pollution receives slightly less attention. Yet, the US recognizes this type of pollution – with regulations such as the U.S. Noise Control Act, for example. Beyond pollution that directly affects people, pollution can also impact the environment and other species. Images of bird carcasses filled with plastic debris or videos of turtles getting caught in plastic six-pack rings are emblematic of this impact. Marine noise pollution is a type of pollution that demands our attention. With the rise of globalization, the ocean is filled with noise from military engines, fracking operations, shipping containers, underwater construction, and seismic surveys. Because of water’s immense sound-carrying capacity, the underwater world is a source of pain for many marine species, particularly those who rely on sound for survival. Unlike most sources of marine noise, shipping noise is constant and intense, but perhaps often overlooked. The sound produced by ship propellers and smaller vessels has increased alarmingly over time, particularly in parts of the world that are highly populated, and where demand or exportation of shipped goods is high. Noise produced by offshore construction is also on the rise, with increased construction of large wind farms as well as other structures, often requiring underwater use of explosives. The noise can travel up to 10km and affects marine mammals’ behavior in a significant way. Seismic surveys, a method by which the ocean is mapped through pulses of intense noise (ironically mimicking some species’ navigating systems, as explained in the award-winning documentary Sonic Sea), is also common for oil, gas and other under-sea mineral exploration. If within a dangerous distance of marine life, displacement will occur and can last up to several weeks, forcing animals to move away from the environment they have made their home. Whereas regulation for air pollution, noise pollution, and “traditional” water pollution have steadily been implemented, there is a lack in both national and international regulations for marine noise pollution. In fact, there is currently no mandatory shipping regulation with regards to noise pollution globally. The International Maritime Organization (IMO) has issued voluntary guidelines for mitigating noise coming from commercial ships and made progress towards recognizing “quieting technologies.” Similar to many instruments of international law, however, these guidelines can only be effective with adequate implementation. Some researchers suggest that ship classification societies, green certification societies, and port environmental compliance programs could help in this regard. National regulations, however, are also crucial. In the EU, the Marine Strategy Framework Directive (MSFD; 2008/56/EC) has implemented what it calls a Good Environmental Status (GES), which must be met to operate and can be determined, in part, through monitoring and perhaps limiting anthropogenic (man-made) noise in European waters. The Directive focuses on intense sounds of short duration as well as low-frequency ambient noise associated primarily with shipping. Both types of noise have had devastating impacts on marine life, including the injuring or killing of whales that either develop brain hemorrhages or flee to the surface of the water or beaches to escape the sound. Similar to this EU Directive, a regional Convention on the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) requires the application of Best Available Technology (BAT) and Best Environmental Practice (BEP) to prevent and eliminate marine noise pollution. Both initiatives are examples of the strict regulations that should be implemented on a worldwide basis, as well as locally by national governments. Some local initiatives around the world provide a framework for what site-specific regulation might look like. In British Columbia, Canada, Minister Dominic LeBlanc announced in October of 2017 that vessels would no longer be allowed to approach a distance closer than 200 meters of southern resident killer whales (100 meters more than the previous distance). Killer whales, a particularly threatened species, relies on a quiet environment to locate and hunt their prey, as well as to communicate among themselves. The distance of 200 meters was defined in response to a high concentration of whale-watching shops but is unlikely to be sufficient for much louder ships such as shipping containers, sonar vessels, or fracking operations that produce a sound of a much higher caliber. In Saguenay-St Lawrence Marine Park, located in the Quebec region of Canada, the regulatory distance has been established at 400 meters from belugas and blue whales, to prevent disruption of the animals’ feeding activities. Washington State has implemented a similar law establishing boats should stay at least 180 meters away from killer whales. If more countries around the world adopt similar directives, and organizations work towards effective implementation of international agreements on marine noise pollution, the legal landscape will become increasingly welcoming for our marine neighbors. Beyond legal intervention, shifts in demand for shipped goods and quieting technologies will also serve to mitigate this invisible issue.

Article by Yasir Gökçe The Pakistani Supreme Court recently declared a group running secular educational institutions in Pakistan a terrorist organization and ordered the educational institutions be handed over to the Maarif Foundation, an apparatus of the Erdogan regime which is purportedly responsible for providing Turkish-style education around the world. The group which previously administered the educational institutions is linked to the Gülen Movement, a social and religious group which has incrementally gone critical to the Erdogan regime and thus been pronounced ‘a terrorist organization’ by the latter. What makes the Pakistani Supreme Court’s ruling worthy of attention is, an authoritarian country was able to dictate its perception of threat, and the designations which follow that perception on a foreign country using international and regional organizations. In pronouncing the said group a proscribed organization, the Supreme Court did not make an inquiry into the group, or the acts of its members whatsoever. Rather it simply relied on the resolutions adopted by the Organization of Islamic Cooperation (OIC), the Gulf Cooperation Council (GCC) and the Asian Parliamentary Assembly (ASA). The Erdogan regime’s relentless efforts to get these political bodies to recognize the Gülen Movement as a terrorist organization paid off and the regime has managed to obtain resolutions which use “the Gülen Movement” and “terrorism” within the same sentence. This piece aims to address the legality issue of the designation of an entity as a terrorist organization by interstate political bodies. It also draws attention to the danger of an authoritarian regime exerting influence on these bodies to further its persecution at home and abroad. Jurisprudence of the European Court Justice on ‘terrorist’ designation The illegality of identification of a person or an entity as of terrorist nature by an international organization is hardly a new subject in international law. One of the most visible cases of the European Court of Justice, namely the Kadi case, revolves around this subject and comes up with a clear framework of analysis which we can apply to the issue in question. In the UN Security Council (UNSC), Mr. Kadi was identified as a possible supporter of Al-Qaida and thereby subjected to a number of sanctions, particularly assets freeze. Mr. Kadi challenged the legality of this resolution before the European Court of Justice. Debates over the competence of the European Court to review a UNSC measure aside, the Court examined the UNSC’s compliance with the fundamental guarantees of judicial protection and found that Mr. Kadi’s inclusion in the list of individuals subject to the sanctions infringed those guarantees. The Court established that Mr. Kadi had not been informed of the grounds for his inclusion in the so-called ‘terrorists’ list and therefore, concluded that his right to be heard, his right to effective judicial review, and his right to property had been violated. In 2008, the UNSC has begun to publish, along with the list, a reasoning which summarizes the main grounds for an inclusion in the list. Mr. Kadi was given the opportunity to inform himself of the main grounds for his inclusion in the list and comment on those grounds before the Sanctions Committee of the UNSC. Even this step has not satisfied the European Court, finding this mechanism ‘formalistic and superficial’. Returning back to the designation of the Gülen Movement as a terrorist entity by the OIC, GCC and APA, the Pakistani Supreme Court was granted a vital opportunity to promote the right to a fair trial, however it has failed to uphold the very basic guarantees of judicial protection. In the resolutions of the OIC, GCC and APA, neither representatives of the Movement nor its followers had not been informed of any reasons as to why they were declared terrorists. They were not offered any procedures or mechanisms through which they could challenge the allegations vehemently voiced by the Erdogan regime. As a natural extension of these notable deficits, they were not able to seek judicial review of such a designation and access the evidence, if any, against them. Here it is worthwhile to note that Mr. Gülen, a self-exiled Turkish cleric who leads the Movement, called for an international investigation into the matter, which, if materialized, could have been functioned as a quasi-judicial mechanism and secured the aforementioned guarantees of judicial protection. All invitations by Mr. Gülen for an objective and transparent investigation have so far been ignored by both the Erdogan regime and other like minded states. In the face of the analysis above, it would be pertinent to advance that the resolutions of OIC, GCC and APA designating the Movement as a terrorist entity infringed the affected individuals’ right to a fair trial, as well as their right to be heard and right to effective judicial review. Diplomatic interests vs. human rights concerns As is the case for almost all international/regional organizations, OIC, GCC and APA are platforms where the participant states represent their respective national interests and try to enhance their respective diplomatic gains together with those of the other participants’ and sometimes at the expense of their losses. It appears that the resolutions of OIC, GCC and APA on the Gülen Movement are not immune from this truism. In the face of President Erdogan who is committed to use every chance he get to hurt the Movement, other member states, for sake of their diplomatic or financial gains, might have been prone to approve whatever text being put in front of themselves. Given the human rights records of the member states, this would not be a deduction devoid of any basis. Another point which accords some credit to the presumption above is the extent to which the resolutions of OIC, GCC and APA are binding on the member states. When the founding charters of the organizations are examined, one would observe that, in contrast to the terms such as “require”, “shall” or “undertake”, the texts contain phrases such as “wishes”, “may” or “recommends”, which are peculiar to non-binding instruments. For instance, the executive parts of the resolution adopted by the OIC are as follows: “Declares its full solidarity with the Government and people of Turkey in its fight against Fethullah Terrorist Organization to ensure democracy, justice, security and unity, Calls on Member States to take every necessary measure against the entities and groups, manned or directed by Turkish nationals, affiliated with the Fethullah Terrorist Organization and cooperate with Turkey to this end” The preference of the phrases in the text, which are typically reserved for non-binding instruments, suggests that the resolution places no legally binding obligation on the signatories. One of the reasoning of the Pakistani Supreme Court is, Pakistan being a member of the OIC is a signatory of the resolution and is therefore bounded by it. In the light of the aforesaid, it is fair to set forth that the Supreme Court has failed to appreciate the non-binding character of the resolutions. Repudiation of the resolutions for the sake of long-term interests Most states have their own national threats, either perceived or real. That of the Erdogan regime is inter alia the Gülen movement for the time being due to its convenience to being a scapegoat for anything bad occurring in Turkey, from the Turkish Lira’s depreciation to earthquakes which stroke various Turkish cities. The Erdogan regime has proved successful in moving its counterparts in OIC, GCC or APA to sign the resolutions by capitalizing on its diplomatic relations or any other leverage or incentive. Consequently, Turkey’s counterparts in those bodies seem to have succumbed to the Erdogan regime’s diplomatic maneuvers. But, it is still possible for the domestic judiciary of the signatory states to right the wrongs of the executives. Overlooking the human rights ramifications, the respective governments might have put their signatures on the resolutions. However, as the language of the texts suggests, those resolutions do not impose any legal obligations upon the states whatsoever. Additionally, if the courts, in any case, feel obliged to follow any of the GCC or OIC instruments, it should be the GCC Human Rights Declaration or the OIC Cairo Declaration on Human Rights whose basic principles stand in contrast with the very essence of the resolutions in question. In the final analysis, the signatory states and their courts had better decide where their loyalty lie. With the authoritarian Erdogan regime or with the human rights and judicial guarantees solemnly enshrined in their respective constitutions? About the Author: Yasir Gökçe is currently a Ph.D. student in the Bucerius Law School in Hamburg. He also holds an at-risk researcher position in the Bonn University. He served as an In-house Legal Counsel in the International Law Department of the Ministry of Foreign Affairs of Turkey for several years. Before and after his tenure in the said ministry, he worked as an attorney by practice in Turkey. He obtained an MPA degree from Harvard University, an LLM degree from Ankara University and LLB degree from Bilkent University. He may be contacted at: gokceyasir@gmail.com  / yasir_gokce@hks16.harvard.edu.

Article by Karin Bashir Almost a full decade has passed since the Arab Spring took place. It was a movement that inspired the world and fundamentally changed the political landscape of the Middle East. Protests erupted across Egypt, Tunisia, Bahrain, and Syria, threatening entrenched regimes and redefining the future of the region. Many expected that the Arab Spring would have resulted in regime change in Algeria due to its corruption, bad governance, state repression and deteriorating economy. And yet, the initial riots were swiftly contained by the police. Since then, it seemed that despite local strikes and protests, the country would remain firmly in the grasp of the 82-year-old ruling President Abdelaziz Bouteflika. However, the long-standing president unknowingly sparked the flame that would ultimately lead to the regime’s end when he announced his intention to run for a fifth term. In response to his announcement, tens of thousands of people poured into the streets on February 22nd to protest in cities across Algeria. The protestors were fueled by anger towards Bouteflika, who began his presidency in 1999, suffered a stroke in 2013 and has since been largely decapacitated, leaving the country in the hands of the military and civilian elite. Resentment against the ailing president was furthered by the failing economy which has left thousands of youth with little opportunity and pessimism about the future. Despite protesters’ demands for him to step down, Bouteflika pushed forward with his candidacy. Even though protesting is illegal in Algiers,  anti-Bouteflika protests were the largest displays of public protest in the country since 1962 when the war of independence from France ended. In the past, the regime was able to quell protest through a well-trained police force, bribes, and housing vouchers. This time, the current of the thousands of Algerian men, women and youth was too strong to hold back. On April 2nd, after 20 years in power, Abdelaziz Bouteflika finally stepped down. The streets filled with celebration with protesters vowing to continue the demonstrations until the entire government has been ousted. As Tunisia inspired Egypt in 2011, Algeria appears to be inspiring the people of Sudan to revolt against their president of the last three decades, Omar al-Bashir. On April 6th, thousands of protestors held a sit-in outside Sudan’s defense ministry in Khartoum. Since then, dozens of demonstrations continue to take place throughout the capital. Al-Bashir security forces have responded with violence, killing 22 anti-government protestors and wounding 153 so far since the sit-in protest began on the 6th. The sit-in is the newest phase of protests, organized by doctors, teachers and lawyers, that began on December 19to demand Al-Bashir to step down. And on April 11th, Al-Bashir was unexpectedly overthrown and arrested in a coup by the armed forces. As Algeria, Egypt, and Tunisia have shown, even the most powerful, entrenched leaders can be brought to their knees by the strength of the determined and organized masses. As in Algeria, the victory in Sudan is just as bittersweet. Though Al-Bashir is gone, his corrupt government remains and protesters are determined to continue the fight until the military hands the government over to the people. If the Arab Spring has taught us anything, this is only the beginning of political strife to come as parties vie for power in the changing landscape of post revolution Sudan and Algeria.

Article by Soheil Ghasemi Bojd Introduction On 13 February 2019, a suicide attack targeting the personnel affiliated with the Islamic Revolutionary Guard Corps (IRGC) in the south-east province of Iran resulted in the death of 27 people. Jaish al-Adl, a jihadist armed group based in Pakistan, claimed responsibility for this attack. The next day, a suicide bomber attacked the security personnel in Pulwama district in Indian-controlled part of Kashmir, killing 40 police forces. This attack was carried out and claimed by Jaish-e-Mohammed, an Islamist armed group based in Pakistan. In both cases, Pakistan condemned the attacks and denied any alleged link to these armed groups. Regardless of the allegations of complicity in supporting and equipping these armed groups on the part of Pakistan, there remain vital questions on the legal analysis of its responsibility for the cross-border violence caused by non-state armed groups, mainly based in Pakistan. Legal Framework of International Responsibility of State The primary rules of State responsibility are codified in the Draft Articles on Responsibility of States for Internationally wrongful acts of 2001 (“Draft Articles”), prepared by the International Law Commission and adopted by the United Nations General Assembly resolution 56/83. They have not yet been formulated into a binding international convention; however, these rules are perceived to be indicativeof customary international law, and therefore, binding upon all States. Pursuant to Art. 2 of the Draft Articles, international responsibility of a State is established only for such time as it can be “attributable” to that State while “constituting a breach of an international obligation” of it. Therefore, speaking generally, there should be a link between the wrongful act and the State itself. Moreover, it merits particular notice that not all kinds of link or mere connection –e.g. by virtue of nationality, incorporation, etc.- account for State responsibility. With respect to the commentaries to the Draft Articles, ‘the general rule is that the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State’. sic utere principle and Limiting State Sovereignty The International Court of Justice (ICJ) in the South-West Africa Advisory Opinion (1971) pointed out that ‘physical control of a territory… is the basis of State liability for acts affecting other States’. In this sense, the question arises as to what extent a State may be held responsible for the unlawful acts of private actors – including, but not limited to, non-State armed groups – that may establish their headquarters on the territory of that State, and carry out intense cross-border violence against the adjacent territories therefrom. This question presupposes lack of consent on the part of the State for the unlawful operations of those non-State actors. The International jurisprudence has already addressed this concern, relying on the principle of sic utere tuo utalienum non lœdas. Having its roots in the Roman civil law, this principle restricts any kind of enjoyment of one’s own rights which may infringe upon the rights of others. In the Trail Smelter case(U.S. v. Canada) in 1941, the arbitral tribunal proposed the following definition of sic utere principle: ‘No State has the right to use or permit the use of its territory in such a manner as to cause injury … in or to the territory of another or the properties or persons therein’ (emphasis added). This argument was affirmed in Lac Lanoux arbitration award (1957) between France and Spain. Although most of the cases relying on this principle deal with the environmental disputes, it can, however, be argued that this concept may be applied ex analogia to other similar cases of relatively different factual backgrounds. It is well settled that the principle of sic utere tuo utalienum non lœdas constitutes an established norm of general international law, as pointed out by the International Law Commission (ILC). Moreover, the recognition of this long-standing principle of international law has not been confined to international jurisprudence. The U.S. Supreme Court in Glass v. The Betsey (1794) underlined that the Latin maxim sic utere tuo utalienum non lœdas has been incorporated into “the law of nature”, and is, therefore, binding on all members of ‘the great society of nations’. In 1891, it was invoked by the United States while expressing its deep concern towards the persecution of Russian Jews that had resulted in the flow of refugees to the U.S. territory. This principle may rule out any pretext of non-accountability on the part of State for the wrongful acts – other than those directed, instigated or controlled by the State itself – endangering peace and security at both domestic and regional levels. In the Corfu Channel case (1949), The ICJ maintained the position that every State is under an obligation ‘not to allow knowingly its territory to be used for acts contrary to the rights of other States’ (emphasis added). This definition, aligned with the one suggested in the Trail Smelter case, offers a two-fold analysis in this regard: in some circumstances, a State may knowingly (and willfully) use its territory to affect the legitimate rights of other States, or it may do so by virtue of allowing its territory to be used for the same purpose, whether knowingly or not. Conclusion As highlighted by Judge Bhandari in his separate opinion in the case concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), sic utere principle should be considered as a “logical corollary of the foundational principle … that each nation is sovereign over its own territory’. Aligned with the primary rules of State responsibility which also govern the wrongful cross-border activities of States, sic utere principle alludes to the obligations of a State vis-à-vis neighboring States, or in other words, the principle of good-neighborliness as endorsed by Art. 74 of the UN Charter. In light of the foregoing, Pakistan may be responsible with respect to the cross-border operations in the territory of its neighboring States carried out by non-State armed forces. This argument is also supported by the obligation of due diligence which itself is a general principle of international law. Any failure on the part of Pakistan to repress the armed forces involved in recurrent violent attacks against the adjacent States might give rise to a setback in the maintenance of peace and security in the South Asia region, which has always been prone to both internal and inter-state conflicts. About the Author: Soheil Ghasemi Bojd is a fourth-year law student at University of Tehran. He has served as an intern at the United Nations Information Center (UNIC) in Tehran. He has a keen interest in public international law, international security and human rights. He may be contacted via: soheyl.ghb@gmail.com / soheil.ghasemi@ut.ac.ir

Article by Francesco Arreaga On March 1, 2019, Mr. Velásquez Gómez accepted the Stefan A. Riesenfeld Award at Berkeley Law, in recognition of his distinguished career in the area of international law and his commitment to dismantling corruption at the highest levels. As UN High Commissioner of the International Commission Against Impunity in Guatemala (CICIG), Mr. Velásquez Gómez led this anti-corruption international body to support and strengthen Guatemalan institutions charged with investigating and prosecuting crimes committed within state institutions that instigate impunity and undermine democracy.During his acceptance speech, Mr. Velásquez Gómez described the work of the CICIG and highlighted the connection between economic inequality and corruption. LINKING ECONOMIC INEQUALITY WITH CORRUPTION Mr. Velásquez Gómez began his speech by citing Herald Waxenecker’s recently published report in Guatemala called, “Inequality and Power in Guatemala – Captured Economy.” He explains how Guatemala is experiencing extreme income inequality through the unequal distribution of wealth. For example, “3% of large companies capture 65% of the operating surplus,” while “56% of small companies only absorb 4%.” Consequently, a cyclical trap is created where “the concentration of wealth generates power inequality, which in turn creates the conditions for the capture of the state and economy.” Mr. Velásquez Gómez described how once corruption infiltrates the state, corrupt actors work to ensure that decisions made at the legislature, central bank, and courts all favor their interests. He explains how he identified “illicit political economic networks” in Guatemala, organized to accomplish three goals through legal and illegal methods: “1) accumulate and exercise illegitimate public or private power, 2) illicitly enrich themselves, and 3) generate impunity for their members.” When the government has been infected by corruption, it no longer works for the common good, rather, it works for corrupt actors that have captured the state and the economy. In my opinion, the connection that Mr. Velásquez Gómez made between economic inequality and corruption is fundamental and political leaders in all countries must understand and act upon it. We must not assume that this economic and institutional problem only exists in developing countries because income inequality and the concentration of wealth is prevalent around the world. As economists Thomas Piketty, Emmanuel Saez, and Anthony Atkinson have shown in their studies of global income inequality, the concentration of wealth and rising inequality is a global phenomenon. Effectively dealing with income inequality will diminish the concentration of wealth, decrease political power inequalities, and prevent special interests from capturing or rigging the state and the economy. THE BENEFITS & VULNERABILITIES OF INTERNATIONAL ANTI-CORRUPTION INSTITUTIONS Mr. Velásquez Gómez passionately described how CICIG has made extraordinary accomplishments with regards to stemming corruption in Guatemala. He spoke about how in 2015, Guatemalan prosecutors in conjunction with CICIG launched criminal investigations regarding fraud which caused the “immediate resignation of Guatemala’s Vice President and months later the President himself.” He also spoke of CICIG’s 2016 report called the “Cooptation of the State of Guatemala,” which exposed extensive corruption throughout the government. For example, the report exposed “corruption in the health, customs, and penitentiary systems; in the judicial, executive and legislative bodies; the links between politics and corruption, [and] between money laundering and politics.” It is abundantly clear that CICIG helped support the rule of law in Guatemala by showing that no one is above the law, not even the President or Vice President of the nation. Moreover, these anti-corruption efforts helped the government and institutions of justice regain the public’s trust. Notwithstanding the public benefits that CICIG has brought to Guatemala, it is vulnerable to political attacks from state actors that seek to delegitimize and silence it. The Guatemalan President declared Mr. Velásquez Gómez persona non grata in 2017 and even though the Constitutional Court of Guatemala reversed the measure, Mr. Velásquez Gómez is still not permitted to enter the country. In addition, the President of Guatemala has ordered the termination of CICIG. All of these events have led to a constitutional crisis that will shape the future of the country. Mr. Velásquez Gómez expressed his concerns about the return of authoritarianism to Guatemala, the threat to the rule of law, and unchallenged corruption that leads to impunity. The Guatemalan government’s actions against CICIG, remind me of the first article that I wrote for the Berkeley Journal of International Law Blog, “The Effectiveness of International Law in an Anarchic International System,” where I described how a nation’s claim of sovereignty may conflict with international law and institutions. It is without a doubt that CICIG has benefited Guatemala and has even garnered favorable rulings from the Constitutional Court of Guatemala. Nevertheless, state actors that wield the levers of power are set on preventing this international body from fighting corruption inside of the nation. As Mr. Velásquez Gómez stated in his closing remarks, “what is at stake in Guatemala is the will of the people, of a new citizenship that aspires to hold the reins of its destiny and that has assumed with absolute responsibility the defense of the conquests, still small, perhaps, but significant, that ensure a future of peace, prosperity, and coexistence in which the smile of children, all children, illuminates the faces of their families.” Only time will tell whether the will of the people will prevail.

Article by Andreas Chorakis Introduction Last week, the ICC rendered a decision on the admissibility challenge raised by the Defense of Saif-Al Islam Gaddafi.  Saif –Al Islam Gaddafi is the son of the former Colonel Muammar Gaddafi, Head of Libyan State for more than forty years. After UN Security Council Referral on the situation in Libya in 2011, THE ICC issued three arrest warrants on the allegations of crimes against humanity. Saif –Al Islam Gaddafi was among the alleged perpetrators. His family affiliation with General Gaddafi and his position during Gaddafi’s regime makes Saif –Al Islam an important person for the Libya’s political life. For this reason, his case before THE ICC is considered a high-profile. In June 2016, the Defense, this time raised a motion challenging the Court’s admissibility on the grounds of ne bis in idem (not be convicted twice for the same crime). In particular, the Defense invoked the conviction of Mr Gaddafi by the Tripoli Criminal Court for the same conduct. The Pre-Trial Chamber, examining carefully the evidence decided against the motion on the basis that the decision Tripoli Court has not yet the status of res judicata. The Courts turns to its applicable law and invoke the human rights standards in the criminal process to justify this approach. In this respect, the Court adds a new element on the admissibility test, the effect of res judicata for a decision of a national court. Such an initiative may provoke criticism against the Court for judicial activism. The article 17 of the Rome Statute, which is the legal foundation of admissibility for THE ICC does not include the element of the finality of decision (res judicata). Therefore, the question is rising whether the decision of the Court on Gaddafi’s Challenge of Admissibility amounts to an expansive interpretation of the Rome Statute. The post will answer this inquiry assessing the practice of THE ICC. Building the Admissibility Test Distinguishing from the jurisdiction, the admissibility is the discretion of the court to hear a case. For the THE ICC, the admissibility basis is found on the article 17 of the Rome Statute. The jurisprudence of the Court has interpreted extensively the article, explaining the steps of admissibility test. In particular, the Court started with the terms investigation and prosecution. In the Situation on Kenya, the Court determines the need for concrete steps of investigation and prosecution of an individual. An initiation of proceedings, the gathering of materials and the interview of witnesses do not suffice as concrete steps. Latter, the Court explained the term “case”. In the first challenge of admissibility for Saif Gaddafi, it established the same conduct/same case test. Based on that test, a case before THE ICC is inadmissible when it mirrors a case before a domestic court. THE ICC did not provide any further information on the similarities that the both cases should present in order to be considered identical. In Al -Sennoussi Simone Gbagbo cases, the Court stepped forward on the same conduct/same case test underlining the need of a substantial same conduct. The Courts adopted a holistic view over the events of a situation. In this context, it argues that the conduct of the alleged perpetrator should be taken into account as whole not as isolated acts. As such, a conduct is substantially same only when refers to the same criminal activities. The last addition came with second challenge of admissibility in Saif Gaddafi case, where the Court stated that the decision of the national court should have the effect of res judicata, meaning that it is final and there is no means of reverse. As observed, the Court follows a build up process to establish the admissibility test. Firstly, it clarifies the basic step with regard to initiation of national proceedings. Secondly, it substantiates the case by the same conduct test and it analyses what same conduct means. And lastly, it adds the element of award finality. When a substantial same case is presented before a national court, the decision of the court should be final and without possibility to appeal, as the human rights law demand. Only when all the criteria apply, THE ICC should abstain from a case due to admissibility reasons. The jurisprudence of the Court does not define whether a cumulative application is necessary. Infra or Contra Legem Interpretation? The Court uses the building up process for various reasons. Firstly, the construction of criminal case needs time.  According to international human rights law, the term “criminal case” refers to a sequence of elements. In particular, a criminal case consists of an individual perpetrator, specific alleged violations of law which fall under the definition of specific crimes, preliminary materials such as testimonies, witnesses’ interviews and indications for the mode of criminal responsibility. The principle of fair trial and especially the feature of due process demand all these elements to be met. However, in the initial proceedings, THE ICC engages with situations not concrete case. The situations may contain conducts that amount to criminal case, but such a process needs time for investigation. Thus, in the early beginning of international criminal proceedings, it is extremely difficult to turn the situation to a case and to assess the possibility of similarities with a national proceeding. An admissibility test from bottom to the top ensures the required time in order the Court to have a clearer image. Following a step by step process, the Court is able to find the similarity and to assert whether a conduct under examination is also reflected in the national proceedings and therefore is pointless to proceed before the THE ICC due to complementarity regime. Secondly, THE ICC has to strike a balance between two poles; On the one hand, the complementarity regime and the other hand the fight against impunity. Unfortunately, the states on the Rome Conference did not decide for a strong Court with a primary role in the punishment of perpetrators of most heinous crimes. On the contrary, they gave concurrent jurisdiction to the Court emphasizing in the primary duty of national jurisdiction to prosecute criminals. The principle of complementarity, as prescribed in the Rome Statute, is an impediment to main function of the court which is to punish the most responsible for atrocity crimes. Taking into account the voices calling for a more radical application of the complementarity, under which THE ICC stops every proceeding in the course of initiation of national proceedings, there is the risk to neutralize THE ICC and not to be able to fulfill the scope of its creation, the fight against impunity for the core crimes. To this end, the Court should become more inventive in the terms of admissibility test. The employment of a building up process is an effective method in order to avoid the risk of neutralization. By assessing the progress in every single step, the Court can differentiate itself engaging with other aspects of the situation at hand, as happened in case of Simone Gbagbo. Thus, THE ICC manages to suffice both the intention of states parties and its role to international law system. Lastly, the building up test is in compliance with the interpretative powers of THE ICC. According to article 20 and 21, the Court may recourse to other bodies of international law in order to clarify certain concepts. Regarding to the judicial process, THE ICC is obliged to follow the standards set by human rights law. As the Court said in the decision, the human rights law is not static. In fact, it is a body of law which continuously evolves and it adapts to the occasions and times. To this end, the finality of award ( res judicata) is not something outside human rights practice. To argue in favor of the element, the Court analyses the international conventions on human rights as well as the jurisprudence of regional human rights courts which specifically demand the effect of res iudicata for the application of ne bis in idem principle. Therefore, THE ICC follows the regulations that its constitutional instrument sets as prerequisite for the judicial process. Conclusion Having an overall view, it is worthless to discuss about a contram legem interpretation of article 17 and for judicial activism of THE ICC. The Court makes an effort to be effective employing different ways and means of interpretation. It is a method used regularly in the international adjudication. The international courts and tribunals faces a lot of constrains in their judicial process. It is undisputable that the adjudication mechanisms act infra legem. Otherwise, their decision will not have any binding effect and they can be easily annulated. In this respect, the question should not be whether the international judicial bodies act beyond their scope but how the constraints can be more flexible to achieve a more effective international justice. Author Bio: Andreas Chorakis is a Master Candidate in International law in the Graduate Institute for International Studies and Development in Geneva (IHEID) His main fields of research are International Criminal, Public International Law, Human Rights Law, International Court and Tribunals. His master thesis focuses on the legal framework of corporate criminal responsibility. He is supervised by Professor Andrew Clapham.  He have been involved in research programs, one during his undergraduate studies on matters of human trafficking (under the mandate of the supreme court of Greece, supervising by Teaching Fellow Eleni Micha) and the other during his post-graduate studies on the matter of dispute settlement between individual contractors and international organizations ( supervising by Professor Nico Krisch). He has also worked as an assistant for the Human Rights Committee Expert, Professor Photeini Pazartzis and as an intern for United Office of High Commissioner for Human Rights (OHCHR) in the Special Procedures. http://graduateinstitute.ch/home/study/academicdepartments/international-law/people/first-year-master-student.html

Article by Anind Umrao and Priyanka Preet Pulwama and escalating Cybernationalism It has been a month since the dastardly attack on the Indian Army in Pulwama rattled and jarred the Indian citizenry. 46 soldiers lost their lives with another 20 still reeling from the bomb attack. It is but natural that the nationalistic fervor ran high on either side of the border, replete with vehement aspersions. But the mud-slinging was not restricted to demonstrations, effigy burning and social media wars alone. More than 200 Pakistani websites were hacked by an Indian hacker group- ‘Team I Crew’. Messages like 'we will never forget #14/02/19', 'dedicated to the martyrs sacrificed their lives in #Pulwama Terror Attack' were strewn across various Pakistani government websites, as an ode to the martyrdom of the Central Reserve Police Force Jawans (soldiers). Many dub it to be the biggest cyber-attack launched by Indian hackers on the Pakistani cyberspace. Experts say that such cyber-attacks are ritualistic around the month of August when both the nations celebrate their Independence Days. ] South Asian techies from both the countries put their skills and patriotic fervor to test by defacing each other’s websites by smearing the national anthem and the emblem across the web page, further riling up hostilities. Cybernationalism to Cyberwarfare Admittedly, the effects of this ‘cyber harassment’ are largely confined to economic and reputation losses to website operators which consequently require reconstruction. Website defacements attract social media smear campaigns and further serve as an annoyance to the masses. Technologically, much of these cyber activities are performed through unsophisticated tools and yet the techies manage to steal information and achieve strategic goals. After reports that Russia meddled in the US elections by hacking machines and creating propaganda on the internet and the recent ransomware and other cyber-attacks being attributed to North Korea, Indian authorities are not risking anything. Lt. Gen. DS Hooda, formed Indian Army General warns that Critical Infrastructure and military installations getting connected to the ‘Internet of Things’ (IoT) are potent threats of enormous escalation. Moreover, India’s growth economically and diplomatically, in the sub-continent, has made its Critical Infrastructure a soft-spot for Chinese and Pakistani hackers. Till now such activities have been typically been performed by non-state actors, it is difficult to ascertain the origin of such conduct: whether these are mere shadowy hackers or official state apparatus.  The receiver of such attacks might also deem such attacks as being conducted by the official government. India and Pakistan have nuclear capabilities and an escalation from cyberspace could transpose into a real-world conflict. What is unique is that experts from both the nations have failed to take cognizance and stand under-prepared for any aggravation whatsoever. The premise that even college-level hacktivists and techies, relying on simple technology, can steal a significant volume of information from their victims, bears testimony that the experts are not well-versed in cyber-security issues. International Law Implications A hackneyed principle of the UN Charter is that the member states are not permitted to use force against each other. The law regarding prevention of the ‘use of force’ is present in Article 2(4) of the Charter, which precludes a member state from employing “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”. The International Court of Justice (ICJ) has additionally ratified and prohibited the use of force by holding it as a core principle of the International Customary Law. Article 2(4) of the UN Charter ostracizes all forms of use of force, independent of the inspiration behind it. Article 2(4) as presented in Dumbarton Oaks conference reads as total prohibition on ‘use of force’. Furthermore, the expression ‘political independence’ and ‘territorial integrity’ were introduced to afford security to small states. In any event, customs that have developed parallel to the Charter underpins the expanded interpretation of Article 2(4). There is no exact terminology for the phrase ‘use of force’, it is found to be exhaustive in nature and is comprehended to include not just ‘armed attacks’, but any attack which results in annihilation of the property, irrespective of the method incorporated. This also includes Cyber Attacks, specifically when the target is to damage the National Critical Infrastructure of a country. ICJ in the ‘Nuclear Weapons Advisory Opinion’ expressed that the provisions analogous to ‘use of force’ under the UN Charter are applicable to any unspecified ‘use of force’ independent of the arms employed. The countries of the developing world often support the notion that ‘force’ incorporates all forms of pressure, including financial and political coercion that undermines the state independence. There is a clear breach of sovereignty when these cyber-attacks cause material harm to the usefulness of a digital framework in the target states. Such cyber trespassing or attacks must not be taken as temporary destructions even if they cause momentary damage and should likewise be comprehended to envelop such activities that upset the working of an infrastructure without causing any physical harm. For instance, the use of biological or chemical or radiological agents would still be accounted as an attack even though the attack might not have been physically encountered. Therefore, it has rightfully been acknowledged that the definition of attack is not constituted by its means but by the consequences which it brings forth. Thus, even the defraying of the data encapsulated within the high-speed data cables and satellites will also come under the white concept of an attack. Cyber operations can even be regarded as an attack within the meaning of International Humanitarian Law (IHL), when they bring forth death or injury or cause any damage or physical destruction, along with unwanted interferences to computer systems. What next? While website defacement has no specific solution to it, there are a few tactics that website owners can resort to for conducting such penetration. Website defacement monitoring and detection tools could also serve as possible solutions. Many such cyberattacks between India and Pakistan hacktivists start with spear phishing campaigns. The emails lure the victim to download an attachment with malwares or direct the victim to a malicious website. There are email authentication systems like Sender Policy Framework can also resolve phishing problems. SPF authenticates the identity of the sender of the email thus verifying the phishing email. Cyberspace has been touted as the ‘fifth dimension’ of war after land, water, air and space and cybertools are only new ways to harass the other state. The advent of cyber nationalism has augmented new actors in the cyberwar field and their actions can be misconstrued as authentic state action. Cyber harassment could escalate tensions into conventional conflicts. As of now, the ties between India and Pakistan stand severed and the next few months shall be experiencing tension and skirmishes. A local physical attack has already worsened the relationship; a cyber-attack on the National Critical Infrastructure would only spell disaster for the entirety of the population. About the Authors: Anind Umrao is a 3rd-year law student  pursuing B.A. LL.B (Hons.) at Dr. Ram Manohar Lohiya National Law University LucknowPriyanka Preet is a 2nd-year law student pursuing B.A. LL.B (Hons.) at Dr. Ram Manohar Lohiya National Law University Lucknow.Both Authors are inclined towards Criminal Law and Public International Law.

Article by Sheridan Choi As the world comes to terms with the devastation of the Notre-Dame de Paris, more than $1 billion has been donated to help rebuild the cathedral. Some of the donors include the CEOs of French oil giant Total, LVMH Group, and Kering. The outpour of financial support to the restoration of the Notre-Dame cathedral has sparked debate over whether the donations could have been used to solve other problems. The Yellow Vest movement in France, which has been protesting social inequality for months, took to the streets to denounce the government’s prioritization of “stones” over “humans.” The Notre-Dame Fire On April 15, 2019, flames engulfed the centuries-old cathedral, partially destroying one of the most visited monuments in Western Europe. Around 13 million people visit the Notre-Dame each year to appreciate the French Gothic structure. To many, the cathedral symbolizes the “heart of Paris,” serving as a reference of distance in all of France. It represents French history and art and serves as a “physical symbol of Western civilization,” as stated by French analyst François Heisbourg, because of its old age and “combination of the secular, the sacred, and the profane.” The fire started in the attic, a rarely visited space located above the arches. The dryness of the dusty attic created a flammable environment, and large wooden structures that provided structural integrity to the cathedral caught fire. The cause of the fire is still under investigation, though some believe it may be the result of an electrical short circuit. Investigators are currently unable to search for evidence due to safety concerns but are expected to look for cables or lights for clues. Firefighters fought to extinguish the fire for nine hours, claiming the Notre-Dame fire to be one of the most difficult jobs undertaken. In the aftermath of the fire, people have voiced concerns about the cathedral fire-safety measures. The security guards’ failure to notice the fire until the flames were almost 3 meters tall suggests the fire alarm system sensors may have malfunctioned, and sprinklers had not been installed under the roof where the fire spread. French President Emmanuel Macron enjoined the people of France to unite and inspire the rebuilding of the Notre-Dame, pledging to restore the cathedral in five years. Wealthy French benefactors contributed millions to the reparations, prompting demonstrations by citizens against their pro-business president and the wealthy’s response to the Notre-Dame fire and disregard for the rising problem of social inequality. The Yellow Vest Movement The Yellow Vest movement, nicknamed for the gilets jaunes worn by the protestors, started with people from rural France who couldn’t afford the rise in fuel prices as a consequence of President Macron’s proposed green tax. The protests spread throughout France, growing into a movement not exclusive to those from rural areas. The Yellow Vest movement joins those who are concerned with the declining standards of living, for which they condemn President Macron, believing him to be a president of the rich. According to French economist Thomas Piketty, the top one percent have experienced a doubling of average income between 1983 and 2015, while the other ninety-nine percent have experienced a rise by only one-fourth. Some of the protestors’ demands include an increase in the minimum wage and the education reform. The movement is said to include people across the political spectrum, rejecting ties to parties and operating without leaders. Although most protestors at road blockades are peaceful, some demonstrations have devolved into violent riots. In December, the Yellow Vests vandalized the Arc de Triomphe, demanding the resignation of President Macron. Demonstrators destroyed the statute of the Marianne, who symbolizes the French Republic. Others smashed artifacts with hammers, defaced the Arc with anti-government graffiti, and stole commemorative medals. In the fourth weekend of the protests, 126 people were injured in Paris and nearly 1,000 people were taken into custody across the country. People shattered shop fronts, set cars aflame, and clashed with police who used rubber bullets and tear gas in an attempt to quell the riots. As of December 22, 2018, there have been ten deaths as a result the movement. Protests Regarding the Donations As the rich fund the restoration of the Notre-Dame, many question the government’s prioritization of the cathedral over the growing issue of social inequality. The Yellow Vests’ anger over the government’s seemingly pro-business stance heightened, resulting in another violent uprising. One sign read: “Victor Hugo thanks all the generous donors ready to save Notre Dame and proposes they do the same thing with Les Miserables,” as a reference to Hugo’s famous works on the plight of the poor. The movement’s message is clear: the government is ignoring the poor. Protestors marched through Paris, setting fire to cars and barricades, throwing stones, and ransacking stores. Police deployed tear gas and water cannons to break up crowds and detained 189 people. The Interior Ministry estimates 6,700 protestors in Paris and a total over 10,000 nationwide. Some have condemned President Macron, claiming he exploited the Notre-Dame fire for political advantage. President Macron had planned to announce measures in response to the Yellow Vests’ demands, including lower taxes and higher pensions, but canceled his speech as the Notre-Dame burned and instead called for national unity. He is expected to hold a press conference responding to the Yellow Vests, 6 PM local time on April 25th at the Elysee palace.

Article by Rishabha Meena The sole jurisdictional characteristic of the ICSID Tribunal (“ICSID Tribunal”) is the adjudication of a dispute between a private investor and a State. Pursuant to Article 25 of the Convention, the Tribunal has jurisdiction over the dispute between the parties. Article 41(1) of ICSID Convention (“Convention”) provides that a tribunal shall be the judge of its own competence. Consent is important for ICSID jurisdiction and it is expressed through a BIT where a unilateral offer of consent is made by the Host-State and the Investor later accepts that offer when a dispute between them arises under the BIT (see here, ¶14-15). The issue which the author seeks to analyse is a situation involving conflict in the jurisdiction of ICSID in a case where the BIT provides dispute resolution mechanism and thereby confers jurisdiction to ICSID. On the other hand, the Investor and Host State enters into a contract which provides for a different dispute resolution mechanism other than ICSID. For instance, a BIT between two countries A and B confers jurisdiction to ICSID Tribunal. X, a citizen of country A enters into an investment contract with country B which confers jurisdiction to Tribunal Q. There is a violation of fair equitable treatment by the Host State and X filed a dispute before ICSID. Thus, the article argues that ICSID has the jurisdiction and explains why conferment of jurisdiction to ICSID over Tribunal X is beneficial. The article takes different kinds of situation into consideration with respect to the conferment of jurisdiction to ICSID. The ICSID Tribunal has held multiple times that the domestic dispute resolution clause does not bar the use of the Investor-State dispute settlement mechanism of a Bilateral Investment Treaty (“BIT”) (See here and here). Consequently, an investor can seek international responsibility of the host state on the basis of BIT notwithstanding the domestic dispute resolution in the contract. I. Jurisdiction of ICSID Tribunal to decide the dispute by virtue of Umbrella Clause in the BIT. Generally, a BIT provides that “the contracting parties shall observe any obligation it has assumed with regard to specific investments in its territory by investors of the other Contracting Party”. This clause in BIT, called Umbrella Clause (“UC”), is present in multiple BITs (See here, Art.5; here, Art. 2(c) and here, Art. 2(c)). UC in the BIT provides a protective blanket for foreign investments including activities in the Investor-State contract. The UC also provides additional investment protections which have been agreed by the State as a sovereign (See here, ¶85). In other words, UC allows to bring a contractual claim to a tribunal under BIT when a contract is entered in which State is sovereign. The Investor-State contracts are sovereign by its nature due to which ICSID Dispute Resolution Mechanism prevail. Once such an activity falls under the BIT, the Tribunal has the jurisdiction to adjudicate the matter by the elevation of the contractual undertaking to international law obligations (See here, ¶53, 60-62 and here, ¶115). In Eureko v. Poland, on the basis of UC in Netherlands-Poland BIT, the Tribunal held that ‘any obligations’ means all obligations undertaken with regard to investment. In SGS v. Philippines, the tribunal held that UC “makes it a breach of the BIT for the host state to fail to observe binding commitments, including contractual commitments, which it has assumed with regard to specific investments”. ‘Any obligations’ in UC implies that the parties bound themselves with a substantive obligation to observe any commitments that have been assumed with regard to investment including contractual obligations (See here, ¶116). Further, jurisdiction for beach of contractual arrangements between the investor and host state due to acts attributable to host state lies with the Tribunal as they amount to a breach of BIT itself (See here, ¶250). II. A dispute resolution clause in Investor-State contact is not a competing jurisdiction. Dispute resolution clause in Investor-State contract is not a competing jurisdiction as it cannot encompass a claim under BIT as sources of international law because such a contract is a municipal agreement in which the parties cannot reasonably intend a dispute resolution clause as claims which arises under BIT (See here, ¶153). Further, in such contract, “a clear indication of an intention to exclude [a treaty-based] jurisdiction would be required”. Even if such an indication to exclude exists, the contracting parties are prohibited from dispensing with the compliance of a treaty-based obligation under BIT. In other words, treaty jurisdiction cannot be countermanded by contract (See here, ¶295). An exclusive jurisdiction clause in the Investor-State contract cannot be resorted to avoid the characterization of its conduct as internationally unlawful under a treaty (See here, ¶103). The reason for the same is that same set of facts can give rise to different claims grounded on differing legal orders (See here, ¶147 and here, ¶73,124). BIT expressly limits its effect on Investor-State contracts containing a separate forum selection clause (see here, ¶98,101). In Vivendi v. Argentina, the Tribunal held that it should give effect to any valid forum selection clause in the contract but in cases where the “fundamental basis of the claim is a treaty laying down an independent standard by which the parties conduct has to be judged, the existence of a forum selection clause cannot operate as a bar to the application of the treaty standard”. Alternatively, whenever the “essential basis” of a claim is a fundamental treaty standard, the contract’s forum selection clause must not be applicable. A breach of contract can, at the same time, amount to a breach of international law and the BIT, if it constitutes a violation of the FET (See here, ¶62). III. Non-compliance with the pre-tribunal Dispute Resolution Mechanism under BIT does not bar the jurisdiction of ICSID Tribunal. Generally, the dispute resolution mechanism in BIT provides that the parties should settle the dispute amicably before approaching the ICSID. This part of the article analyses the jurisdiction of ICSID if a party approaches ICSID before complying with the requirement of amicable settlement of disputes. The Tribunal in Lauder v. Czech Republic found that the waiting period requirements were procedural and therefore not a requirement for jurisdiction, as strict compliance with such procedural requirement does not serve the legitimate interest of the parties (See here, ¶187). Strict compliance with such procedure would lead to an increase the length of arbitration and would hinder flexibility and efficiency, two benefits of international arbitration. IV. Conclusion Despite the existence of a dispute resolution mechanism conferring power to the municipal court to adjudicate the dispute in Investor-State contract, it is the ICSID which should be provided with the power of adjudication of Investor-State contract because violations of such contract amount to the violation of international obligation under the BIT. The adjudication of the dispute by ICSID leads to uniformity in international investment law. Moreover, the ICSID being a body with experience and expertise enable the speedy and efficient adjudication of disputes which benefits both the parties by saving time and money. Thereby, it allows the creation of the investor-friendly environment and hence enable the growth of the economy. Short Biography of the author The author is a penultimate year undergraduate law student at National Law University, Jodhpur specializing in international trade and investment law. Through his participation in ELSA Moot Court Competition on WTO Law, he developed his interest in international trade law. The author has also been part of the Editorial Board of Trade, Law and Development. The author has interned with various leading law firms in India. The author has deep interest in international trade and investment law and their relationships with other areas of law. The author can be reached at rishabh.149620@gmail.com.

Article by Barkha Dwivedi “There's power in naming yourself, in proclaiming to the world that this is who you are. Wielding this power is often a difficult step for many transgender people because it's also a very visible one.” — Janet Mock On 17.12.18 The Transgender Persons (Protection of Rights) Bill, 2018 (“The bill”) was passed by the Lok Sabha (House of the People) of India. After 2 years of its introduction in Lok Sabha and with 27 amendments, the bill finally saw the light of the day. The bill aims to prohibit the discrimination against a transgender person on the grounds of unfair treatment in the educational establishment, employment, healthcare services and access or enjoyment to accommodation and facilities dedicated to the use of the general public or customarily available to the public. The highlighting feature of the bill is the definition of the transgender person which means “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender- queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”. The definition even though has been made less irrational as compared to the bill introduced in 2016 by omitting from the definition “one who is partly female or male; or a combination of female and male; or neither female nor male.”, still remains to be vague as the terms such as ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ has not been defined. The atrocities faced by the transgender community was articulated by the National Legal Service Authority (NALSA) in a PIL petition, National Legal Services Authority vs Union of India. The submissions made by NALSA stated as to how the transgender persons are deprived of their fundamental rights by not being recognized as a third gender, thereby rendering it almost impossible for them to obtain Passport, driving license, ration card, Identity Card etc. The transgender community is deprived of social and cultural participation, are shunned by family and society, have only restricted access to education, health services and public spaces. Many other rights and privileges that are available to the citizens of India such as right to marry, right to contest elections, right to vote, employment and livelihood opportunities and various other human rights are far-fetched for the transgender community. Another important submission, also highlighted by the Supreme court in its judgment, was the need of the statutory reservation in the domain of employment both in the public and private sectors. Adding to this, NALSA also submitted that it is vital to provide facilities for higher education to empower and uplift the transgender community and to promote their acceptability in society. Apart from the Supreme Court’s ruling, a number of suggestion in regards to the issue of the reservation was made to the Expert Committee of the Ministry of Social Justice and Welfare on the Issues relating to Transgender Persons by various state governments and other participating members.  However, the committee did not put forth any recommendation with respect to the same and therefore, the current legislation does not contain any provision with respect to the reservation for the transgender community. The Supreme Court again in National Legal Services Authority vs Union of India had upheld a transgender persons’ right to self-identify their gender. Recognition of one’s gender identity lies at the heart of the right to dignity and freedom and therefore it must be protected under Article 21 of the Indian Constitution. In addition, the court stated that Privacy, self-identity, autonomy and personal integrity are fundamental rights protected by Article 19. In the wake of the same, the bill also states that a person who is recognized as ‘transgender’ shall have the right to ‘self-perceived’ gender identity in accordance with section 4 of the bill. However, the need to be screened by the District Screening Committee for the purpose of recognition of transgender persons as mention under section 6 of the bill goes against the principle of self-identification. In the presence of such provision, it is unimaginable to observe in true sense the key right of self-identification that the Supreme Court had protected. Another legal conundrum that the bill raises is that even though the bill recognizes the third gender i.e., transgender, the bill does not specify as to how the provisions of the laws which recognizes only two gender i.e., male and female, such as Indian Penal Code (IPC), 1860, Hindu Succession (Amendment) Act, 2005, Indecent Representation of Women (Prohibition) Act, 1986, The Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act, 2013, Hindu Adoptions and Maintenance Act, 1956, Protection of Women from Domestic Violence Act, 2005 etc., will apply to them. The text of these laws has not been aligned with the provisions of the bill and the same has the potential of causing the miscarriage of justice to the transgender community. A recent case that manifests this drawback is Anamika v UOI wherein the petition was filed by a transgender student of Delhi university against the Delhi police after the police refused to lodge the complaint under Section 354A IPC i.e., sexual harassment and punishment for sexual harassment. The police were in a state of uncertainty as to whether a cognizable offence, under the provision of Section 354A IPC, in particular, sub clause (i), (ii) and (iv) of sub-section 1 which talks about physical contact and advances involving unwelcome and explicit sexual overtures, a demand or request for sexual favours and making sexually coloured remarks respectively, can be made by a transgender person or not. The uncertainty arose due to the fact that the complainant did not conform to the binary notion of ‘woman’. The petition which was heard by the division bench of Justice Siddharth Mridul and Justice Sangita Dhingra Sehgal was dismissed as the complaint was registered by the Delhi Police later on. The same was declared by Mr. Rahul Mehra, the standing counsel appearing on behalf of the Delhi police, in the court. He further stated, on instructions from the Commissioner of Police, Delhi that, if a cognizable offence, under the provision of Section 354-A IPC, in particular, sub clause (i), (ii) and (iv) is made out on the complaint of a transgender, the same shall be registered, in accordance with law, in terms of the decision of the Hon’ble Supreme Court in the case of “National Legal Services Authority vs Union of India”. The petitioner had also requested for anonymity and therefore litigated under the court assigned name ‘Anamika’. The immediate need for the amendment in the penal provision such as rape, outraging modesty of a woman, stalking, subjecting to cruelty etc., vis-à-vis the bill was also highlighted by Dr. Shashi Tharoor, Congress Member of Parliament from Thiruvananthapuram, in a series of tweets. Dr. Tharoor while exploring the fault lines in the definition of the transgender persons in the bill, stated that “A person with intersex variation may be satisfied with the gender assigned at time of birth, or can choose to be a transgender, but the Bill wrongly assumes that all persons with intersex variation are transgender persons. I moved an amendment to correct this.” In the absence of such amendments, it would become a daunting task to observe the aim of the bill as the idea is not only to protect people based on their actual sexual orientation but also on the basis of how they perceive themselves. About the author Barkha Dwivedi is a third-year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow (India). She takes an active interest in the issues concerning human rights.

Article by Priya Gupta Private Equity Investment sector has been on the low since the last decade expect the recent revival of optimism in the industry. Possibly naming it a remarkable year, investments are predicted to have hit a high of $28-29 billion in 2018. However, the fact of PE investments being sluggish in India cannot be overlooked as investors express concerns over uncertainty on account of upcoming elections and the pandemoniac state of affairs that might flow through it. One such issue garnering attention is the current regulation exercised over Upside sharing arrangements by Securities Exchange Board of India (SEBI). Upside sharing or compensation arrangements are contracts entered between the investor and key managerial personnel or promoter of the listed company to share a certain portion of the revenue made by the investor at the time of its exit. Such agreements are incentive instruments for the employees and/or management of the listed companies. SEBI, has recently come to terms with regulating such arrangements by bringing them under the approval based regime of its shareholders. The amendment requires a company to obtain approval from the shareholders before executing compensation arrangements and disclose previously entered agreements. It also places a bar on interested parties to vote on these approvals. In a consultative guideline, it was revealed that such a strict public shareholder approval system would be required to avoid unfair trade practices mainly due to the price sensitive nature of the contract. However, the question arises as to the required extent and type of regulation needed to strike an adequate balance between better governance and investor incentive. One of the major issue holding such amendment in the negative is SEBI’s deviation from the basic principle of capital markets being built around disclosures. Public shareholders themselves have to be aware of the information available to make an informed decision before exit. A comparative jurisdictional analysis would reveal that this norm is already settled in UK & U.S. This is because of the fact that an approval system invites unnecessary compliance cost and a lower motivation for firms to become listed. Additionally, companies try to devise mechanisms of avoidance by moving the capital market activity to a favorable jurisdiction rendering the entire object futile. It is to be understood that the regulation brings ambiguity especially for companies interested in Initial Public Offers. Keeping in mind that time is of essence in the market, significant PIPE deals (private investment in public enterprises) could be in a blockage awaiting approval. Besides, the determining criteria applied by the shareholders might be highly unfitting. As per the new law, any related or interested party is not allowed to cast a vote owing to conflict of interest. It is interesting to note that SEBI presumes that a related party will include a promoter which might not always be the case. A similar approach has seen to run in the country in terms of the Insolvency Code as well. After all, “Not all conflicts of interests are problematic and need to be addressed.” Keeping in mind that India does not attract active practices by shareholders, it is possible that importance of a compensation arrangement might not be understood. For instance, if a PE investor strongly believes in the incentive program, and the company is in dire need of an investment, shareholders taking a decision to the contrary would yield a negative result for the company. Often the reason for non-approval would be higher reward sharing fee which a shareholder might not be able to evaluate in terms of market standards. It is also not that SEBI has set a base percentage which could serve a scale as seen in other jurisdictions especially like the “two and twenty” arrangement. As a result, this ignorance would also play out in situations where the fee is higher than usual and the shareholders assess it as nominal. It is not denied that Private Equity is a market in need of dire governance. The basic problem identified is the link between ownership and management. The complications seem to intensify when a compensation arrangement is introduced by the investor who is himself looking for a short term exit.  Many claim that a key managerial personnel would focus on making a short term goal so as to earn a major compensation and relieve themselves within a span of few years hampering larger interests of the public and the market. SEBI regulation has completely overlooked this problem with the current law lying short of even correct jurisprudence. Analysis would indicate that SEBI chose the approval method by considering these reward arrangements as nothing short of managerial remuneration. Section 197 of The Indian Companies Act 2013 mandates for shareholder approval for the remuneration amount that any managerial personnel may withdraw. Such an approach seems to be flawed as compensation arrangements are contracts entered between the manager and the investor. A company is not made a party to the contract as the payment is not made from companies account. Therefore, treating the compensation received as some form of remuneration is fundamentally incorrect. The correct approach then would be to lay down a harmonized approach starting with changing the approach to disclosure based as already discussed above. The second step then ideally should be to build this disclosure system. The controversial definition of a “related-party transaction” should be done away with so as to allow the companies accepting PE investments to themselves draft a policy and define  what types of transactions will be considered related-party and how will they be treated. This policy can then be made subject to approval of the shareholders, based on which managers may act in the future to avoid possible violations. SEBI should set out the maximum and minimum amount of fee that could be charged by the managers so as to keep the amount received in line with Industry norms. Additionally, a scale down arrangement should be set so as to curb short term practices. By setting a prescribed minimum annual rate of return, constant firm performance could be maintained for longer terms. With the growing consciousness towards corporate governance, especially in the wake of continuous scams in the country, there is a need to implement a corporate governance code at the earliest. United Kingdom, has already with its notification in July 2018 finalized the fundamental review of the codewhich propagates for highest level of disclosure as a key requirement for a company’s success. The ignorance exercised by SEBI in regulating Private Equity investments have led to unregulated violations in the past. Therefore, 2018 should be considered as an ideal year for review to understand the huge role that these investments will hold in the future. However, till the above suggestions are not implemented, Private Equity Regulation will be considered to be big miss. About the Author: Priya Gupta is a 4th year B.A. LLB (Hons.) student from Gujarat National Law University, India.