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Article by Shayan Ahmed The oral hearings of the Jadhav Case (India v. Pakistan) are all set to take place at the International Court of Justice (ICJ) between 18th to the 21st February, 2019. The proceedings before the Court were instigated by India through a Compromissory Clause found in the Art. 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes, 1963 whereby matters pertaining to the interpretation and application of the convention are to be submitted to the ICJ. Both parties have passed the phase of Provisional Measures. Some of the issues that came into contention within the phase of Provisional Measures and, something that will also come into question at the stage of merits, revolve around the Agreement on Consular Access between the Government of the Islamic Republic of Pakistan and the Government of the Republic of India (2008 Agreement) between India and Pakistan. To this effect, the article will focus on the issue of parties not registering international agreements with the UN Secretariat. The 2008 Agreement will be used as a case study to illustrate as to what the potential outcome of the case might be but also as to where the law, in this respect, stands at present. Art. 102 of the UN Charter requires every international agreement to be compulsorily registered with the UN Secretariat. The 2008 Agreement was signed on 21st May, 2008 and was registered by Pakistan on the 17th of May, 2017 – a decade after the signature and some days after the Order for the Indication of Provisional Measures. Art. 102 of the UN Charter is divided into two paragraphs. The first paragraph requires the parties to register the treaties ‘as soon as possible’. However, the same has not been concretely defined. Interestingly, during the discussions on the provision, it was the Representative of India who was of the opinion that the organ of the organization —UN Secretariat in this case— should possess discretion on whether a particular international agreement has been registered in time. In practice, however, the UN Secretariat accepts agreements for registration irrespective of the length of time the party/parties took to register. Turning to case law, we also see that in the Aegean Sea Continental Shelf Case a joint press communique which was dated 31st May 1975 was registered on 11th October, 1978. Similarly, albeit in a lesser span of time, in the case of Maritime Delimitation and Territorial Questions between Qatar and Bahrain the agreement was registered six months late. Specifically, the ICJ stated that non-registration or late-registration (as in the case of Pakistan) has no consequence on the actual validity of the agreement, nor is there any bar which requires the parties to register an international agreement after the institution of proceedings. Lastly, in the Corfu Channel Case the Court accepted jurisdiction on the basis of a Special Agreement that had not been registered. The aforementioned caselaw illustrates as to how the Court has taken an extremely lenient position when it comes to the late registration of international agreements. The interpretations, as enunciated above, are also in line with the second paragraph of Art. 102 of the UN Charter which states, in the form of a sanction, the inability of parties to an international agreement to invoke it before an organ of the United Nations. However, no bar is posed to third parties from invoking such a treaty or an international agreement. The ICJ being the principal judicial organ of the UN (Art. 92 of the UN Charter) is free to take such an agreement into account. The same is a departure from the severe sanction that was codified in the Art. 18 of the Covenant of the League of Nationswhich barred a treaty from possessing a binding character, if the same had not been registered. Therefore, it can be safely concluded that the obligations of the parties to the 2008 Agreement i.e. India and Pakistan to register the agreement has been duly performed by Pakistan and the same being done a decade later will be of no consequence. Consequently, the non-registration of the 2008 Agreement cannot be utilized by India to advance the argument that the agreement is now redundant by virtue of non-compliance with Art. 102 of the UN Charter, as they contended during the phase of the provisional measures. It is therefore likely that the registration of the 2008 Agreement, albeit after the instigation of the proceedings, will pose no issues before the Court and the same may be taken into consideration by the ICJ at the merits stage. 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.

Article by: Talha A. Mirza, JD 2021 Brexit: a messy divorce While it seems like a long time ago, the referendum for the United Kingdom (UK) to leave the European Union (EU)—also known as Brexit—happened barely three years ago, yet the fallout today is as resonant as ever. The Brexit referendum in 2016 was already very controversial due to the very close margin of the pro-Brexit victory (51.9% to the 48.1% pro-EU votes), and since then, there has been significant political violence enacted by pro-Brexit right-wing groups. Even so, while these right-wing groups are surging with a trend of rising nationalism and xenophobia throughout Europe, it must be clarified that the foundation of the pro-Brexit campaign was so alluring due in large part because of “exaggerations and outright lies.” The most comically inflammatory claim regarding the pro-Brexit campaign was how the “UK was sending the EU £350 million a week,” to which the official who composed the ad recently admitted that the Brexit referendum was a “dumb idea,” that it’s shaping up to be a “guaranteed debacle,” and that leaving the EU could be “an error.” Regardless, while assigning blame can vindicate the pro-EU side, the damage has already been done, and the UK must adopt a forward thinking, multi-partisan approach since time is running out. Time is ticking The UK has until March 29th, 2019 before their membership in the EU would expire, and if the UK does not come up with some realistic and sound plan, leaving the World’s largest trading bloc would yield severe economic, social, and political ramifications. This is not to say UK Prime Minister Theresa May has not been working tirelessly to reconcile the outcome of the Brexit public referendum with the fact that her recent proposal in the House of Commons lost by a landslide of 230 votes. Under the usual rules of the UK’s constitutional democracy, if the Prime Minister calls a vote on a significant issue and loses even by one vote, let alone 230, they are usually “expected to resign or call a general election.” But given that many of May’s staunchest opponents are not even considering this option, due to the elephant in the room that is the looming EU membership expiration date, it is clear that the UK parliament is scrambling to fix the mess created by the referendum. This Brexit is too UK, this Brexit is too EU, this Brexit is just right! Many of those who opposed May’s proposal are scattered across the political spectrum, with some right-wing members of parliament demanding for a more extreme version of Brexit, while those on the left are asking for more moderate, pro-international trade (pro-EU) modifications. But then again, many in the UK government have proposed a second referendum, which May would not want, as the Kingdom is progressively becoming more pro-EU with every passing day of political gridlock.  Over two million citizens who were previously eligible to vote due to being young are now of voting age, and according to various polls, around 87% of these new voters are pro-EU. So while you can’t please anyone, nobody really has the answer to what the UK should make of this Brexit baffle, I guess we’ll see what happens next.

Article by Nitya Jain Introduction The parties may opt to expressly authorize the tribunal to adapt the contract in case of unforeseeable event(s). Such express authorization establishes the primacy of party autonomy and, consequently, can have a decisive influence on the determination of an arbitrator’s power to adapt the contract in question. Parties, however, often leave the contract silent on this matter making it difficult for the tribunal to fashion a remedy based on their implied intent. The tribunal is a creature of parties’ consent. It has to make sure that it never goes beyond its authorized jurisdiction and eventually does not overrun parties’ autonomy. Again, Challenges to the final award on the ground of jurisdictional overreach is not a novel phenomenon. This question was extensively discussed in the case of Kuwait v. The American Independent Oil Company (AMINOIL, 1982) wherein the tribunal held that a tribunal by no means can adapt a contract without express authorization of parties. Thus, the Tribunal needs to turn to the applicable substantive and procedural law. In an arbitration, the relevant substantive and procedural law have completely distinct areas of operation. This conflict becomes vehement on the issue of contract adaptation. Arguments against Contract Adaptation by an Arbitral Tribunal A Tribunal has the power to rule on its own jurisdiction to check whether it has the power to adapt the contract. Further the wordings of the arbitration agreement are checked to look out for the power the agreement renders upon the tribunal. Furthermore, The Tribunal needs to establish that the applicable substantive law (often being the contract law) allows for contract adaption as a remedy or if granting such remedy is exclusively reserved for the national courts. While not many domestic laws today support the idea of contract adaptation, some prominent legal systems do envisage it. The German law proposed a solution to the problem of no authorization- it suggests the principle of supplementary construction that authorizes the tribunal to adapt the contract to the extent that such adaption is in line with the hypothetical intent of the parties. However, this power had to be used in the strictest of its sense. Further, traces of not using implied terms of contract to authorize adaptation can be found in both English and American contract laws. The Tribunal needs to establish whether the applicable arbitration law envisages such power of the tribunal. For example, while this issue arose during the negotiation of the UNCITRAL Model Law, the drafters decided not to address it in the text of the model law as such a provision would stretch the procedural law into the peripheries of substantive law. This makes the adaption way beyond the authority of an arbitral tribunal. Furthermore, the question arises whether an arbitrator has adequate knowledge to adapt the contract? Often Contract adaptation demands modification of the terms of the contract. There can also be a shift in the rights and liabilities of the parties. This very remedy more often than not,is not only beyond the legal authority of the arbitrator but also sometimes beyond his or her competence. Contract adaptation implicates complexities of contract and trade, especially when it aims at future co-orporation of the parties. Quite often, contract adaptation effectively requires the tribunal to rewrite/alter the contract, or add certain clauses. Not every tribunal is competent to understand the nuances of that particular trade and are appointed to resolve a specific legal dispute. The contract might also be too complicated for being modified by a party who is not an expert in the field of trade. It is still possible for a tribunal to adapt the contract when the concern is related to price increase or minor fluctuations. However,  It becomes really difficult, if not impossible, to rewrite a multifaceted contract on, for example, a mining venture, earthquake, delivery of a plant after the occurrence of a war, etc. Arguments for Contract Adaption by an Arbitral Tribunal On the other hand, in recent times there is a wave in favor of authorization of the arbitration tribunal to adapt the contract. In absence of express authorization tribunal goes to look for implied authorization, interpretation of contract itself and applicable substantive and procedural laws. There still exist certain countries where substantive law supports adaptation – Poland, Germany, France set out such examples. The primary argument is that the extensive jurisdiction for arbitral tribunals provide that the term “dispute” should be interpreted in a broad way, including the power to adapt contracts when the need arises. The term “dispute” encompasses any kind of dispute, difference, disagreement, or claim that may be asserted in arbitral proceedings and covers all circumstances where one party demands something and other party refuses to provide it. Further, arbitration agreements are generally interpreted broadly. The arbitration clause which binds the parties to settle “all or any” disputes through arbitration should be interpreted in way that “any” dispute also includes claims for an adaptation of contract and that makes it contractual claim. Furthermore, parties’ implied intent is rendered heed as to know whether parties actually wanted to adapt the contract. Generally, if a party includes hardship clause or a force majeure clause it intends to adapt the contract and not terminate it in case of unforeseeable circumstances as adaptation is the remedy of hardship. The insertion of a hardship clause is an explicit demonstration that the contracting parties are willing to undertake revision of the contract, if unpredicted circumstances make performance of the contract excessively onerous for either of the parties. Past negotiations of the parties also reflect such a choice. Finally, arbitration is considered a one stop shop, i.e. parties generally intend that all disputes are to be decided by the same tribunal since they selected arbitration as a one stop shop else. Excluding a remedy from the competence of the arbitration tribunal would, hence, defeat the core purpose of arbitration. This holds even more correct in case of long term contracts. Conclusion It is the dynamic pattern of international contract law which advocates in support of a broad competence of international arbitrators to adapt contracts. An approach that supports the co-operative and complex long-term transactions than just one-time exchange of goods and money is gaining rapid support by numerous domestic legislations and scholars on international commercial arbitration. When parties include an arbitration agreement in their contract, it is indicative of the fact that they intend to resolve all disputes between them by arbitration, be it substantive question of contract adaptation. Further, if the hardship concept is to be accepted as a general principle of substantive law, the resulting procedural power of tribunals should also be generally accepted.  Principles of good faith and fair dealing also tilt the balance in favour contract adaptation by arbitrators. Also, Long-term contract requires adaptation in case of a change of circumstances, rebus sic stant ibus being the inherent principle in any such contract in application, also of good faith and fair dealing being the cornerstones. Conclusively, this phenomenon of an arbitrator adapting a contract is a major shift towards the pro – arbitration paradigm.

Article by Nitya Jain With growing transactions and declining approachability in trade and commerce, disputes inevitably arise. Today, irrespective of whether a dispute is domestic or international, parties prefer an unbiased forum for resolving their disputes. Effectively, Arbitration is the most suited method when it comes to sidestepping the lengthy procedures of court. The capability of parties to achieve a speedy relief is fundamental to any arbitration proceeding. In order to safeguard and further uphold party autonomy, major arbitration institutions develop mechanisms and procedures that eliminate judicial involvement in arbitration proceedings. When a party seeks an interim relief, they either resort to domestic courts or wait for the constitution of the tribunal. Resorting to courts undermined the very purpose of choosing arbitration over litigation and pendency of tribunal formation gravely hampers the expedite procedure. In order to address the aforementioned fallacy international institutions and various countries have developed the concept of Emergency arbitrator. A party appoints an Emergency Arbitrator when it urgently requires a relief that if not granted, will lead to grave loss of asset or evidence. Proceedings of such an arbitration is governed by agreement and consensus of the parties. Emergency arbitrator is not a part of the tribunal in fact, his job ends with the granting of relief and he is not to decide the case on merits. The types of emergency reliefs sought are broadly categorized in four broad headers- (i) anti-suit injunctions; (ii) reliefs aimed at restoring status quo of the disputant; (iii) measured intended at safeguarding enforcement of a future award and (iv) orders for interim payments. A good amount of time has passed since the concept of Emergency Arbitrator has been around. The institutions are continuously introducing provisions and rules as an attempt to improve the workability of the concept of emergency arbitrator. Various countries in their domestic laws have also adopted the concept. Though the novel concept of emergency arbitrator is highly appreciated in the arbitration community globally, enforcement of the order passed by the arbitrator is still debatable. It eventually boils down to the subjectivity of various national courts and laws of the respective countries as to whether an order passed by an emergency arbitrator is enforceable or not.  Except Hong Kong and Singapore all other national laws are silent on the question of enforceability of emergency arbitrator’s decision. The Indian law does not expressly recognize the concept emergency arbitrator. In an attempt to abide by the global trend and also to provide statutory recognition to the awards passed under institutional rules like SIAC and ICC, the 246th Law commission report did recommend the adoption of the concept of emergency arbitrator under sec 2(d) of the Act which stated “Arbitral tribunal” means a sole arbitrator or a panel of arbitrators and, in the case of an arbitration conducted under the rules of an institution providing for appointment of an emergency arbitrator, includes such emergency arbitrator.” However, the same was rejected by the legislature while amending the Arbitration and Conciliation Act, 1996 and thereby the concept is not a part of the Arbitration and Conciliation Act, 2015. There is also no express judicial recognition of the awards passed by emergency arbitrator or its enforcement. Till date the Indian courts, for that matter, had no opportunity to test the validity of the same. Due to the non- recognition of the concept of emergency arbitrator in India the trend has been such that parties after obtaining an emergency arbitrator award outside India, enforce the same in India via seeking interim order under Sec 9 of the Arbitration and Conciliation Act. The Indian legislature consciously omitted the inclusion of the provision of Emergency arbitration in the amended Indian Arbitration and conciliation Act. The non-acceptability of Emergency Arbitration in India has numerous probable reasons behind it. Firstly, Emergency arbitration fails to address the issues of third party i.e. an emergency arbitrator cannot grant measures against a third party. An emergency arbitrator’s jurisdiction is limited to the signatories and cannot be extended beyond. On the contrary, Indian courts, like courts of other jurisdictions, can grant interim relief against third parties under certain circumstances (for example, where such orders are necessary to protect the subject matter of the arbitration).  Secondly, unlike domestic courts, emergency arbitrators cannot pass ex-parte orders as this would go against the purpose of their constitution – both parties won’t be provided with an equal opportunity. Indian courts, like other jurisdictions, can grant ex parte orders in exceptional circumstances. Ex parte orders become necessary in some special circumstances where if the respondent comes to know about the order he might displace the assets or other similar grounds. Thirdly, an award passed by an emergency arbitrator is to be further scrutinized by the actual tribunal and can also be overturned, this however is not the case with the interim orders passed by the domestic courts. Lastly, enforceability of emergency arbitrator’s award is again a controversial question. The scant judgments passed by the Indian Judiciary only have dealt with the enforceability of the awards passed in Singapore or Hong Kong. India is yet to clarify its position regarding the enforceability of awards in other jurisdictions. However, it is undeniable that Emergency arbitration ensures minimum court intervention which is the need of the hour in order to develop India as a pro-arbitration country. It would a progressive step towards making India a global hub for arbitration, like Hong Kong and Singapore. Often emergency arbitration proceedings are hassle free and ensure efficiency, which eventually develop a set standard of behavior for the parties. Experience also shows that parties are more likely to comply and abide by the orders passed by emergency arbitrators. An emergency award if recognized in India will definitely be beneficial for parties if the parties against whom the claim is made have their assets in a different jurisdiction which recognizes emergency awards. For India to become a pro- arbitration country, it is high time it harmonizes its arbitration laws with international standards. Author’s Bio: Nitya Jain She is a 3rd year BA LLB student from Institute of Law, Nirma University, India.

Article by Adnan Toric France fined Google fined $57 million on Monday for breaching the European Union’s General Data Protection Regulation (GDPR). The GDPR is an 11 Chapter legal document that aims to harmonize and increase data privacy protections across Europe. The goals of the GDPR are the promotion of transparency, information and consent. France alleged that Google’s search engine lacked transparency and clarity on what it does with user data along with lack of proper consent verification. The GDPR came into force in May 2018. Since then, privacy regulation has become a bigger issue in Europe. The GDPR also allows for fines up to 4 percent of a company’s global revenue, meaning that $57 million is still not even the maximum amount possible for Google to be fined. Google issued a statement expressing its commitment to the principles of the GDPR. While France is known for its ardent promotion of privacy rights, the GDPR’s goals are realized in its upholding of the large fine imposed on Google. The fine could be seen as overzealous or a necessary warning sign to internet companies and their treatment of user data.

Article By Minsoo Kim Enes Kanter, a center for the New York Knicks of the National Basketball Association (NBA), recently refrained from traveling to London with his team to play against the Washington Wizards for the 2019 NBA London Game. Kanter is an open supporter of Fethullah Gulen, the Turkish Muslim leader of a group labeled by Turkey’s government as the “Fethullah Terrorist Organization” (FETO). Kanter is also an outspoken critic of Turkey President Recep Erdogan, who blames FETO for a failed coup to overtake the Erdogan government in 2016. Kanter stated he could not go to London because he feared for his life. He claims Erdogan’s long reach extends into London, where spies could easily kill him. Kanter’s fears of cold-blooded assassination may be justified, but international law provides for different barriers between Kanter and Turkey. The Possibility of an “International Arrest Warrant” Turkey media outlets claim that Turkish prosecutors are seeking an Interpol “Red Notice” for Kanter. Contrary to most news headlines covering this story, a “Red Notice” is not an international arrest warrant. It may be considered the closest thing to an international arrest warrant, but a “Red Notice” is distinct from an international arrest warrant. An Interpol “Red Notice” “is a request to locate and provisionally arrest an individual pending extradition.” Interpol has not yet issued a “Red Notice” for Enes Kanter. Even if it is issued, the US would have no obligation to arrest him according to INTERPOL, “INTERPOL cannot compel any member country to arrest an individual who is the subject of a Red Notice. Each member country decides for itself what legal value to give a Red Notice within their borders.” The Merits of a Potential Extradition Request Turkish media outlets also report that Turkish prosecutors are seeking an extradition request for Kanter. Since there is an extradition treaty in place between the US and Turkey, both parties are bound to treaty’s terms like any other treaty. According to this treaty, a formal request “calls for an arrest warrant; a statement of facts of the case; evidence that the offense, though allegedly committed in Turkey, is prosecutable in the U.S.; and the text of the law under which the accused would be tried.” However, parties to extradition treaties are not obliged to extradite an individual in every circumstance. Article 3(1)(a) of this extradition treaty states that “extradition shall not be granted” if the “Requested Party” considers that the offense at the heart of the request is of a “political character or an offense connected with such an offense; or if the Requested Party concludes that the request for extradition has, in fact, been made to prosecute or punish the person sought for an offense of a political character or on account of his political opinions. However, any offense committed or attempted against a Head of Government or a Head of State” or their family members is not considered a political offense. Based on the terms of the treaty, it seems unlikely that Kanter will have to worry about extradition. Kanter’s alleged crimes are his connections to FETO and his financial support to the group. It is difficult seeing how connections with and financial support to a group could overcome the “political offense” exemption unless the failed coup could be construed as an offense committed against a Head of Government or State. There are allegations that the coup planned to assassinate Erdogan, but Turkey would need to substantiate this with evidence. There are differing views over the definition of this exemption to the “political offense” exemption, but even if those actions are sufficient for extradition, the issue would then turn to whether Kanter’s connections with FETO are such that he could be held accountable for the group’s offense. Accordingly, Turkey faces many high hurdles to jump through to make a plausible case for extradition. Turkey may be bluffing, as they have not made an extradition request yet. If it was feasible for Turkey to go through the formal treaty channel to get Kanter, a somewhat well-known professional basketball player, it would also be able to extradite Fethullah Gulen, an important figure in some circles but unknown to the majority of US citizens. Turkey has been unsuccessful in the latter and “easier” case, so it seems unlikely that it will be successful in Kanter’s case. Concerns over Turkey’s Methods of Quelling Dissidents Turkey, as well as other countries such as Russia, have abused the “Red Notice” system. Turkey reportedly tried to file around 60,000 “Red Notices” since the failed coup of 2016. Based on these notices, “dozens of Turkish dissidents” in one region of Eastern Europe alone have been “hunted down” and “shipped back to torturers in Turkey.” Turkey has also abducted people where extradition has failed. Kanter nearly faced that fate when Turkey issued a domestic arrest warrant and sought a “Red Notice” for him in May 2017. Turkey targeted Kanter in Indonesia, where he put on a children’s basketball camp for his charity. Thanks to a tip in the middle of the night, Kanter escaped to Singapore, and then to Romania, where he found out that Turkey had canceled his passport. As a result, Romania denied his entry into Bucharest, and he barely escaped back to the US thanks to the help of Oklahoma’s senators. Erdogan took a strong stance against Saudi Arabia for the murder of Jamal Khashoggi, but this can only be seen as hypocritical virtue signaling if he does not hold himself to the same standard. Erdogan silenced opposition in staggering numbers, as seen in his jailing of around 77,000 people after the coup attempt. Erdogan used the Khashoggi tragedy to ratchet up pressure on the US to hand over Gulen. This casts doubts on his motives for calling for an international investigation into the death of Khashoggi. Reports state  White House officials inquired into ways to legally remove Gulen, presumably to appease Turkey for the killing of Khashoggi and thereby maintaining good relations with both Turkey and Saudi Arabia without risking antagonization of the other. Conclusion Turkey must be held accountable for its abuse of the “Red Notice” system and for resorting to inhumane measures to capture and silence dissidents living domestically and abroad. President Donald Trump may be in a tough foreign policy situation, but the US must not compromise its moral values and capitulate to the demands of foreign strongmen. There is likely no easy solution to the larger problem of Turkey’s human rights record, and one could certainly argue that the US is in no position to try to solve it at all. However, the US can at least trust that current international law will  likely not allow Turkey to secure the extradition of Kanter.

Article by Lokesh Vyas Should the legality (measured by the yardstick of morality) of the subject matter be taken into consideration while giving Intellectual Property Right? This question gets the utmost relevance when read in the light of the current decision of Indian Patent Office where it denied the patentability of a sex toy. The primary justification for the same is immorality which is the most subjective concept existing in the world today. Legalization of gay sex by the Indian Apex court has broken the shackles of parochial and stereotypical mindset and explored the dynamic nature of morality. It set a mark that social standards are dynamic and have changed now. However, the recent patent denial to a sex toy posed an opposite view to the world. The present case of denial and objection raised by the Indian Patent authority is a depiction of morality-obscenity dichotomy. Testing on the Anvil of Traditional Theories of Property In India, IP law contains certain provisions where morality and public order can be a valid justification for denial of granting of patents. However, the fundamental objective of IP law does not appreciate such denial. The underlying principle of Intellectual property law stems from the labor theory of John Locke which says a person should be rewarded for his labor and such reward is in form of entitlement to the created property. The principle interpretation of the above rule de-legitimizes such denial because a person’s work is the expression of his labor and personality. The underlying aim behind awarding labor is to incentivize and motivate a person to come up with a new work for the society. As per the avoidance theory of Locke, no one wants to labor/work because labor is a painful activity, therefore, the people who labor and create property are special and this specialty should be rewarded. People create a property by putting their labor which is ultimately added to the common stock of society. Thus, society gets the ultimate benefit of such creation. This is another reason for which they are rewarded with certain rights over that property. By this analogy, denial of IP right does not seem to be in comity with the Lockean theory of property. Here, it might be validly argued that if Intellectual Property right is given without considering the legality of the subject matter, it would create an unfettered IP regime where anyone can get right over anything. But it needs to be highlighted here that in order to get IP right the applicant has to fulfill certain conditions. Denial by the Indian Patent Office In the above case of Patent denial, the applicant was Standard Innovation Corporation and claimed a creative vibrator named as “We-Vibe”. It was different from other vibrators in terms of its looks because unlike other vibrators it looks like a U-shaped device and can be resembled with headphones. It is innovative in terms of its function as it offers a dual stimulation to a woman. Furthermore, it can be used during regular sexual intercourse. To bolster the above denial, Section 3(b) of The Patents Act, 1970 was used as legal weapon which denies Patent protection to “an invention the primary or intended use or commercial exploitation of which could be contrary public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment”. However, the term morality and public order has not been defined by the act itself which impels one to open section 292 of Indian Penal Code, 1860 which states that “a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the pruri­ent interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”. However, the above section does not contain the word morality. The above section contains an exception which clearly expounds that the section is not applicable when it is justified for the public good on the ground that the same is in the interest of science, literature, art or learning or other objects of general concern. Here, the aforesaid exception is not exhaustive but an illustrative one, therefore, the said denial should have been tested on the anvil of the terms “other objects of general concern”. But it was not done by the authorities thus, the purpose of the ‘We-Vibe’ i.e. enhancing the sexual pleasure of the couple was overlooked by the authority. The Existing Dichotomy The moral ground given to justify the above denial fortified the self-professed morality of Indian patent office by epitomizing the fact that how nebulous moral principles can be used as a legal weapon to justify an act. While refuting the patent, the said object was said to be a “sexual stimulating vibrator” and thus held immoral. Here, if the underlying assumption is that “something related to sex/sexual intercourse is immoral” then there would be a long list of objects which should have been declared immoral and illegal. Going with the same analogy, a condom should also have been held immoral and obscene because of its seductive packaging. This particular incident sets an example for the moral-obscenity dichotomy. Indian patent authority read/interpreted obscenity and immorality as one. But there is a fallacy that flows with the above assumption because something which is obscene may not necessarily be immoral and vice versa for e.g. killing an innocent person may be immoral but not obscene and a condom advertisement may be obscene as it is likely to arise one’s prurient interest but is not always immoral. Besides morality, public order was another reason which helped the authorities in justifying the denial. The absence of the definition of the term Public order in the Indian Patent Act, 1970 seemed to be a virtue for interpreting authorities as it led the open interpretation of the section. In furtherance of the same, it is to be understood that even if the said invention was granted patent, it would not have impacted public order because there is no proximate relationship between grating patent to a sex toy and public order because sex toy is part of one’s private life and thus not a subject matter of public concern. Therefore, one’s using “We-Vibe” would not have any proximate nexus with the public interest because a sex toy is not something which is used in public (supposedly patent was granted), hence it is least likely to disturb public order. Now, bringing Locke’s Non-Waste principle (which says that a person should not produce a thing which yields no benefit) would make the situation more questionable because here the denial disentitles him from any benefit. Now shifting to the labor theory of Locke, he doesn’t have any incentive to come up with such invention because his creativity is not appreciated hence ultimately impacts the fundamental objective of IP law i.e. to provide incentives to create and serve the interests of the public by promoting economic growth. Inadequacy of IP laws This case is not only pertinent to India because it shows how morality-obscenity dichotomy plays a very vital role while determining the legality of any act/object. This dichotomy often enables the authorities to use morality as a yardstick to determine the legality of an object/act. The relevancy of the case is not just for India but for the entire IP law regime. Because whenever a statute gives morality as a ground for determining the legality, it creates a broad leeway to the interpreting authority to use it as a tool. The concept of morality is said to be molded according to the social standards but the irony is that these standards are not defined by any court or in the book and even if they are defined they keep changing. Here, certain questions arise that if today X (an inventor) is denied patent protection because of social standards of morality and decency but the same or similar invention is granted patent after a particular span of time to some other person then whose fault would it be? Would it be the fault of X to invent such thing in the wrong span? Or is it the society’s inability to set inadequate standards? Or should the standard-setting authority or standard defining authority be held responsible for treating the same inventions differently in different time spheres? Or it is the inadequacy of intellectual property to resolve such matters?. These question often remain unanswered. Thus, only moral reasoning should not be encouraged for giving a legal justification because doing so shambles the rudimentary premises of law (here the Intellectual Property Law).

Article by Amin R. Yacoub The United Nations (“UN”) has been the strongest supporter of Human Rights since its invention. The term “human rights” appeared seven times in the UN’s founding Charter. In 1948, the Universal Declaration of Human Rights (“UDHR”) reaffirmed that human rights obligations have become an inseparable part of international law. Since that time, the UN has “diligently” worked on promoting and protecting human rights through legal instruments and on ground activities. The engagement of the UN peacekeeping missions in the on ground activities was not always clear of disastrous breaches to human rights. The UN Stabilization Mission in Haiti (“MINUSTAH”) gravely breached the human rights of Haitian citizens. The mission soldiers raped women and men, engaged in multiple raids that killed hundreds of civilians including women and children, and was the main reason for the cholera outbreak that led to the death of more than 30,000 Haitian citizens. Most of these violations were reported in the detailed investigations conducted by both the independent investigative body and the UN internal unit of investigation. As a response, the UN denied responsibility for the Cholera outbreak for more than 6 years, discharged a few Pakistani soldiers for raping a 14-year-old boy after an attempt to cover up the scandal, and did nothing else to mitigate its grave human rights breaches than giving a mere apology. One wonders if a UN Secretary-General’s apology is enough for Haitians who have witnessed nothing but misery for the past 14 years. Or whether the UN swallowing up its fake pride would warrant a waiver for its responsibility for grave violations of human rights obligations under UDHR. This leaves us with the question: who holds the UN accountable for its human rights breaches? While the UN can be immune from responsibility before national Courts for its diplomatic protection, it is not generally immune under International Law. In order to accurately determine the responsibility of the UN for human rights breaches, we must distinguish between three classes of acts. First, political decisions that are attributable to the UN (usually the UNSC). Second, acts that can be attributed to specific soldiers in peacekeeping missions. Finally, collective acts that cannot be attributed to specific soldiers but can be attributed to the UN peacekeeping forces collectively. First, the political decision of the UN Security Council (“UNSC”) to deploy MINUSTAH in Haiti was initially questionable. The UN Security Council (“UNSC”) indicated in its resolution No. 1542 (2004) that MINUSTAH was deployed under Chapter VII of the UN Charter (offensive military action in cases of armed conflict), Haiti alleged that it never had an armed conflict that allows for the application of a Chapter VII peacekeeping mission. Only Chapter VII confers the right to UNSC to interfere in the internal affairs of sovereign states and deploy military missions without their consent. In the absence of an armed conflict, the UNSC simply cannot trigger the application of Chapter VII and must rely on Chapter VI (defensive military action) which requires the State’s consent. Nonetheless, the UNSC never actually obtained the consent of Haiti for deploying MINUSTAH. This is an example of a political decision that is attributable to the UN. If the UN did not comply with its charter, the UN must be held responsible for its unsubstantiated interference in a sovereign state’s internal affairs. The ICJ might come to mind as a first candidate that can hold the UN responsible for such a decision since it is the main judicial organ of the UN. However, Art. 34 (1) of the ICJ statute provides that the competence of the ICJ is limited to states’ disputes and does not include International Organizations. Further, although it is theoretically plausible, it might be practically impossible to hold the UN responsible for the UNSC resolutions or decisions due to their political nature. Second, the acts of MINUSTAH which can be traced to specific soldiers such as rape and killing civilians. UN initially refers the matter of misconduct of the concerned soldiers to their national governments with regards to both investigation and punishment. Only when their national governments refuse to investigate the matter, the UN Office of Internal Oversight Services (OIOS) reassumes the right to investigate. The UN may take disciplinary measures against soldiers who engaged in misconduct such as repatriating such soldiers and banning them from joining the peacekeeping operations in the future. However, the criminal and civil liability of the soldier involved are solely reserved to the soldier’s national jurisdiction. We consider this mechanism to be accurate with regards to criminal liability. Soldiers who have committed crimes within their role as a peacekeeping mission can only be held accountable in accordance with their national laws. The only criticism directed at this mechanism regarding criminal accountability is that it resulted in many of MINUSTAH’s soldiers dodging accountability for raping and sexually assaulting hundreds of Haitian women by fleeing to their home countries where Courts do not have access to witnesses and victims. It would be more compliant with justice to try the concerned soldiers in the country where the peacekeeping mission sits applying the national law of their jurisdiction. This would allow for a more reliable judicial process for collecting evidence and hearing witnesses and victims. The only time, to our knowledge, the UN Peacekeeping soldiers were tried, a Pakistani military Court convened in Haiti to try Pakistani soldiers. As a result,two Pakistani soldiers were imprisoned for a year for raping the 14-year-old boy after multiple attempts of MINUSTAH trying to cover it up. Had it not been a widely spread scandal, the UN might not have been so “harsh” on the “poor” Pakistani soldiers. Although such mechanism seems logical with regards to criminal responsibility since the military personnel composing the UN peacekeeping missions are primarily soldiers in the armies of their countries, one cannot leave this matter without further analysis with regards to civil liability. The concerned soldiers are indeed under the effective control of the UN not their individual states. Thus, one finds it hard to accept referring civil liability to be decided by their national jurisdiction since it would create a double standard under International Law. While acts of private parties are attributable to States when they have acted as agents of the State under Art. 4 of ILC articles of State Responsibility, acts of peacekeeping operations’ soldiers are not attributable to the UN even though they act as agents of the UN. It is worth noting that the recently drafted ILC Articles on International Organizations Responsibility (“IOR”) had adopted the right standard. Articles 6 and 7 provide for the responsibility of the International Organizations for the wrongful acts of their agents (defining agents as those who are under the effective control of the organization). Third, collective acts of the MINUSTAH, such as the outbreak of Cholera, should naturally be attributed to the UN. Such acts cannot be attributed to specific soldiers since they are a result of a series of collective “bad” decisions of MINUSTAH as a mission. Article 13 of the ILC IOR covers the International Law breach consisting of a composite wrongful act that is composed of a series of actions and omissions. Thus, there is no reason under International Law for the UN to escape civil responsibility for the collective misconduct of the peacekeeping mission in Haiti. Finally, Article 36 of IOR provides for Compensation as a remedy for such breaches if restitution is not viable. It also highlights that this remedy is “an obligation” that the concerned International Organization must comply with. In conclusion, while the UN may not be responsible for initially passing a resolution deploying MINUSTAH in Haiti, it can be held accountable for all the grave human rights breaches committed by the peacekeeping mission. This contradicts with the current UN mechanisms, however, it complies with the ILC draft articles of IOR drafted in 2011. We suggest that the role for holding the UN accountable for International Law breaches should be conferred upon the Secretary-General of the UN. The General Assembly of the UN plays as a world parliament to some extent. As Abraham Lincoln laid down the cornerstone of democracy, the UN General Assembly represents the International Government of nations, for the nations, by the nations. Departing from this logic, the general assembly and the Secretary General seem to be in the best position to hold the UN accountable for its human rights breaches. Haiti, as a member of the general assembly, might have the option to file a resolution on the UN’s responsibility for the grave human rights breaches committed to the UN Secretary General citing all independent investigative reports. Further, such resolution shall be circulated to all member-states. The UN Secretary General shall call for a vote from each state on the accountability of the UN MINUSTAH mission. If the majority of States voted for the accountability of the UN, the Secretary-General shall compel the UN to provide adequate compensation to Haitian citizens in accordance with Art. 36 of the ILC Articles of IOR.  However, the UN civil responsibility for the misconduct of its peacekeeping missions still remains a complex issue that requires further research and suggestions from International Law academics and practitioners. Author’s note: For a detailed analysis of the UN Responsibility for its human rights breaches in Haiti and further suggestions on who may hold it accountable, see my forthcoming article “Who Holds the UN Responsible for its Human Rights Breaches? An Open Inquiry in the Haitian Case.” About the Author: Amin R. Yacoub is a Junior Research Scholar, N.Y.U School of Law (2018); LLM, N.Y.U School of Law (2018); LL.B with High Distinction, Faculty of Law English Section, Cairo University (2015); Post-Graduate Diploma, Cairo University; Qalaa Holdings Scholar (2017/2018); Graduate Editor, NYU Journal of International Law and Politics (JILP), Vol. 50 (2017/2018); Co-editor-in-chief, International Review of Human Rights Law; Member of the Egyptian Bar Association.

Article by Min Soo Kim On Christmas Eve, Judge Howell of the United States District Court for the District of Columbia held that North Korea was liable for over $501 million to the parents of Otto Warmbier. Private citizens are normally not allowed to sue foreign sovereigns, but an amendment to the Foreign Sovereign Immunities Act allows them to sue state sponsors of terrorism. This lawsuit was filed back in April of last year, a couple of months after the State Department readded North Korea to its list of state sponsors of terrorism. Otto Warmbier was imprisoned in January of 2016 for allegedly stealing government propaganda from his hotel in North Korea. A month later, he admitted to his alleged crimes through a televised news conference. Experts believe that the confession was coerced. Otto was soon sentenced to 15 years of hard labor. A little over a year later, he was returned to the United States in a comatose state. He died a few days later. The Warmbiers’ lawsuit claimed that North Korea violated international law by forcing Otto to confess to carrying out an act of subversion on behalf of the United States government. Although it is unclear whether the Warmbiers will receive any money from North Korea, spectators have chimed in with possible ways to procure some form of enforcement of the judgment. One such possibility is to secure a post-judgment attachment against North Korea’s assets in the US or possibly elsewhere. Another method is for the Trump administration to seek money for the Warmbiers as part of its negotiations with North Korea over denuclearization.

Article by Talha A. Mirza, JD 2021 Summary: From publishing a women’s fashion magazine to luring recruits with “kittens and Nutella”, Al-Qaida and ISIS have employed dangerously effective online strategies to expand. ISIS’ cyber presence represents a chilling surge in the utilization of the internet to spread information, fundraise, recruit, and facilitate terrorist communications – the question now is how the ubiquity of social media affects not only American, but international public interests. How can we reform international privacy, cybersecurity, and cyberterrorism laws to address issues such as this? Background: As terrorism researcher Dr. Maura Conway claims, “every machine connected to the internet is potentially a printing press, a broadcasting station, or place of assembly.” The internet is an unparalleled and infinite medium of communication and information sharing, and its ability to transmit and spread any direct message was initially exploited by al-Qaida. Al-Qaida uses the internet to build a brand – one of terrorism. For example, Bin Laden always dyed his beard, wore an army jacket, and kept an AK47 nearby in all of his videos, and Anwar al-Awlaki–similarly dubbed the “Bin Laden of the Internet”–starred in multiple FaceBook and Youtube videos, always posing in white robes as a lecturing imam. They conscientiously built their brand, creating Inspire Magazine for suicide bombers, and even going so far as to publish Al Shamikha, a fashion and lifestyle magazine catered towards Muslim women. Hence, Al-Qaida’s product is terror with their brand being key to raising awareness, recruits, and money. Al-Qaida’s cyber use may seem impressive, but it is nothing compared to ISIS’, which is far more flexible and widespread. This leads to a communications landscape that is more complex, making it harder to track the sources of terrorism online as cyberspace becomes the next domain of warfare. Moreover, ISIS has learned from al-Qaida, exemplifying the shift  from a territorial terrorist organization, to a series of affiliates and smaller “cells” with no clear distinct leaders and easily facilitated e-communications. ISIS employs much more than kittens and nutella; their comprehension of social media and cyber terrorism tools is alarmingly effective. This is not the only case of entities using social media to shape global geopolitics (specifically in America) — such as Russian attempts to interfere in the 2016 United States Presidential election; this is just another example of a similar issue of the dangers of the cyber world in a different context. Regardless, a prime example is the “cyber caliphate”, an ISIS-associated hacker group who hacked the US Central Military Command twitter, Newsweek, and the International Business times, among other involvement in the Ile de France attacks. Moreover, ISIS has revamped the field of recruiting, with people such as “Sheik Google” focused on anonymously contacting and recruiting young Muslims and others around the world. This is the man who was deemed as the point of contact for three American teens who were caught attempting to travel to Syria to join ISIS, and investigation has shown that logistics, including meetings with ISIS leaders, plane times, and funds, were diligently planned between both parties. These were three children, who had grown up in America with the same upbringing as others, and yet ISIS had somehow targeted them. As President Obama stated,“propaganda has coerced young people to travel abroad to fight their wars and turned . . . young people full of potential into suicide bombers. We must offer an alternative vision.” Besides US authorities monitoring social media–where ISIS recruits at as young as 14–what alternative vision can they provide? With the FBI and CIA already hunting ISIS down, and even Anonymous declaring war on them, what other possibilities exist? Counterterrorism cyber initiatives and more stringent information legitimacy safeguards on social media could potentially be effective, but it is not clear where the future of this cyber war on terrorism leads to. Bottom Line: At the end of the day, both terrorist organizations use the internet and cyberspace to increase their membership, communicate, and raise funds. However, ISIS is far less traditional and unconventional in its methods, as they are adapting to the internet almost as fast as the platform itself. The question is not only how terrorist organizations such as al-Qaida and ISIS are using the rapidly evolving and interconnected nature of technology and social media to recruit. But rather, the crux of this issue lies in the the question of: how we can balance the privacy interests of tech companies, the likes of Google and Twitter, with the public international interests of deterring and combating terrorism (cyber or not)?

Article By Nick Reem Ukraine has imposed martial law following the seizure of three naval ships and detention of twenty-four sailors by Russian forces on Sunday. The incident occurred in the Kerch Strait, which connects the Black Sea to the Sea of Azov, with the disputed Crimea Peninsula to the West, Russian mainland to the East, and Ukraine to the North. Although reports are disputed, it appears that Russian forces opened fire upon the Ukrainian vessels, injuring six soldiers, and video shows Russian ships ramming a Ukrainian tugboat. Relations between the two countries have been strained since Russia’s annexation of the Crimean Peninsula in 2014. American leaders strongly condemned Russian aggression this week. Both UN Ambassador Nikki Haley and Secretary of State Mike Pompeo denounced Russia’s actions as a “violation of international law” and declared that sanctions against Russia would remain in place. President Trump also offered his thoughts on the incident: “Not good. Not happy about it all.” NATO called for “restraint and de-escalation” and demanded that Russia ensure Ukraine’s free navigation of the Kerch Strait in accordance with international law. This incident marks the most dangerous escalation of tensions between Ukraine and Russia since the Crimean conflict.

Article by Elizabeth Lee Since 2014, the United States has experienced an unexpected influx of migrants—particularly women and children—from Central America fleeing from gang violence, drug trafficking, and domestic violence. The U.S. government’s struggle to handle the increased inflow of migrants, as well as the Trump administration’s goal to curb illegal immigration at the U.S.-Mexico border, have prompted policy changes restricting who may qualify for asylum, which has had a disproportionally negative impact on women fleeing gender-based violence. International Refugee Protections for Victims of Gender-Based Violence The United Nations introduced international refugee protections through the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees. These two documents were a post-World War II reaction to the failure to protect Jews and other victims of the Holocaust who were turned away when they sought sanctuary in another country. Under the Refugee Convention and Protocol, those who are “unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion” qualify for refugee protection. Notable in this language is the omission of gender as a protected ground. In response, the United Nations High Commissioner for Refugees (UNHCR) published authoritative guidance in 2002, stating that women may qualify for protection based on gender-related persecution such as domestic violence. Gender-based claims fall under “membership of a particular social group” (PSG) and UNHCR recommends considering the following when defining PSG in an asylum claim: It must be a distinct group in society. It must involve innate characteristics; common past experiences; or shared values, attitudes, or behaviors. (e.g. sex, caste, military experience, sexuality) It must exist in the view of its members or from the viewpoint of society. Persecution does not define PSG; rather, it must exist independently from the harm. PSG also depends on the historical, economic, sociopolitical, and legal contexts of an individual’s country of origin. More importantly, an individual’s claim for protection must be based on the persecution of the individual, not merely the persecution of the PSG as a whole. UNHCR’s guidance on refugee protections for women, however, has not translated into practice in many countries, including the United States. Domestic Violence and Refugee Protection in the United States and Beyond The United States adopted the 1967 Protocol, with the U.S. Code useing the same language as the Refugee Convention in defining who can qualify for protection. In August 2014, the United States recognized domestic violence as a basis for asylum in Matter of A-R-C-G-, a case about a Guatemalan woman who suffered spousal abuse for ten years while police did not intervene despite repeated requests from the woman. However, in June 2018, in Matter of A-B- , Attorney General Jeff Sessions overruled the Board of Immigration Appeals’ (BIA) groundbreaking decision in Matter of A-R-C-G- . While this case does not categorically exclude domestic violence claims as a basis for asylum, Sessions’ negative rhetoric and limited understanding of migrants escaping domestic violence have resulted in higher scrutiny in these claims, making it harder for women to receive refugee protection. Worth noting as well is that an asylum seeker’s chance for protection depends heavily on the judge assigned to the case, creating another hurdle in the asylum process. Victims of domestic violence seeking refuge in countries other than the United States have also experienced obstacles. In 2012, the European Parliament published a study on gender-related asylum claims in Europe. Countries differed in the way they viewed domestic violence in relation to persecution. For example, in Belgium, spousal abuse was a form of persecution and Sweden did not consistently recognize this. In France, by contrast, domestic violence could be part of a viable asylum claim if it was paired with another type of violence, like forced marriage. Necessity of Recognizing Women’s Rights in Refugee Protections There are divergent views about domestic violence as a viable basis for asylum warrant. One issue is the amount of reluctance in offering protection for women who have experienced such abuse. Such reluctance is based primarily on traditional views of women’s role in the private sphere. First, women’s rights were not officially recognized by the UN until the General Assembly issued a resolution in December 1972 declaring 1975 as the International Women’s Year—thus accounting for the omission of gender as a ground for protection under the Refugee Convention and the Protocol. Second, the types of violence that women experience differ from those by men. Abuses like sexual assault, domestic violence, female genital mutilation, and dowry burnings are often viewed as “private” acts by individuals rather than “public” acts by a government and its refusal or inability to punish and deter actors. Consequently, achieving adequate recognition of domestic violence and other gender-based violence as bases for asylum requires countries to understand the historical sociopolitical dynamics animating these issues and policies. Countries must work towards creating a cohesive system that can offer much-needed protection to some of the most vulnerable people in the world.